Witham v Holloway - [1993] HCATrans 102

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl46 of 1992
B e t w e e n -
JOHN ALLAN WITHAM

Applicant

and
JOHN WILLIAM HOLLOWAY

Respondent

Application for special leave
to appeal

DEANE J

TOOHEY J

GAUDRON J

Witham

30/4/93

TRANSCRIPT OF PROCEEDINGS

(

AT SYDNEY ON FRIDAY, 30 APRIL 1993, AT 2.24 PM

MR P. KINTOMINAS:

May it please Your Honours, I appear for

the applicant. (instructed by Watsons)

MR N.F. FRANCEY: I appear for the respondent.

(instructed

by the Crown Solicitor for New South Wales.

DEANE J: Yes, Mr Kintominas.

MR KINTOMINAS:

Your Honours, I hand up an outline of

argument in triplicate. The factual background to

the matter is fairly brief. The respondent, who is

Wales, brought a class action under the Fair

the Commissioner for Consumer Affairs in New South applicant had dealt with and brought actions to ultimately recover money from the applicant.
During the course of those proceedings, the

respondent sought to be secured against the
applicant's assets in the event that there was a
victory by the respondent in the action, as

plaintiff. The court requested or directed the
applicant to firstly swear an affidavit concerning his affairs and, secondly, accepted an undertaking from him that he would not allow his assets to fall

below $200,000. By the time the proceedings
were -

TOOHEY J: When you say "accepted an undertaking from him",

is that strictly right or did it not culminate in
an order made by Mr Justice Powell prohibiting the
disposition of assets?

MR KINTOMINAS:

That is the more correct way of putting it,

Your Honour.

TOOHEY J:

Two orders, in effect; one restraining the

disposition of property and the other requiring him
to file and swear and affidavit as to his assets.

MR KINTOMINAS:

that there was an order that he not deal with his Yes, Your Honour. I was in error. It is
assets in such a way as that they fall below
$200,000. It transpired before the end of the proceedings which the plaintiff ultimately won
that the applicant was insolvent and the
respondent bought against him proceedings for
contempt which were proved to the satisfaction of
His Honour Mr Justice Hodgson of the Equity
Division of the New South Wales Supreme Court who heard the matter.
The problem arises, Your Honour, as follows:

Mr Justice Hodgson directed himself as to what was
the appropriate standard of proof to apply in this
sort of matter. I take Your Honours to page 83 of

Witham

30/4/93

the application book and there is a paragraph
headed 3 and it reads:
Despite an assertion in Richie's Supreme Court
Practice, par.55.13.3, that proof beyond
reasonable doubt is required, it seems clear
that in New South Wales the law is that, in a
case of wholly civil contempt, the civil
standard of p~oof applies, but with the
required degree of satisfaction…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Witham v Holloway

Details

AGLC: Witham v Holloway [1993] HCATrans 102
Case: [1993] HCATrans 102
Decision Date

CaseChat Overview and Summary

The applicant, John William Holloway, sought special leave to appeal to the High Court of Australia from a decision of the New South Wales Court of Appeal. The dispute arose from a class action brought by the Commissioner for Consumer Affairs in New South Wales against Holloway, seeking to recover money. During these proceedings, the Commissioner sought security over Holloway's assets, leading to court orders requiring Holloway to file an affidavit detailing his financial affairs and an undertaking, later formalised as an order, not to allow his assets to fall below $200,000. Holloway was subsequently found to be insolvent and faced contempt proceedings for breaching this order, which were proven to the satisfaction of Hodgson J of the New South Wales Supreme Court.

The central legal issue before the High Court was the appropriate standard of proof required in civil contempt proceedings in New South Wales. Specifically, the court had to consider whether the standard was proof beyond reasonable doubt, as suggested by some practice texts, or the civil standard of proof, potentially fortified according to the gravity of the facts, as applied by Hodgson J and supported by New South Wales Court of Appeal decisions such as *N.S.W. Egg Corporation v Peek*. Holloway had unsuccessfully sought leave to argue before the Court of Appeal that *N.S.W. Egg Corporation v Peek* was wrongly decided.

Hodgson J, in determining the contempt, directed himself that the civil standard of proof applied in wholly civil contempt cases, with the required degree of satisfaction varying according to the gravity of the facts, referencing *Jendell Australia Pty. Limited v Kesby* and *N.S.W. Egg Corporation v Peek*. This approach was consistent with the High Court's decision in *Briginshaw v Briginshaw*, which indicated that the civil standard, fortified by the gravity of the allegations, was appropriate. The applicant's appeal to the Court of Appeal was refused leave to argue that *N.S.W. Egg Corporation v Peek* was wrongly decided.

Orders