WITHAM v HOLLOWAY

Mr Kintominas, who has appeared for the appellant today, has challenged the orders made by Hodgson J on grounds going to the findings of guilt and upon other grounds going to the question of penalty.

His first submission was that the standard of proof in cases of so-called civil contempt is proof beyond reasonable doubt. In the present case the contempts found by the Judge arise from breaches of orders made in the Equity Division. The first order was that the appellant file an affidavit of his assets and liabilities. This order was made in the course of proceedings in which a Mareva injunction had been granted restraining the appellant from dealing with or disposing of his property in Australia.

The order made on 1 November 1989 was that the appellant swear and file:

"A full and sufficient affidavit setting out details of all his property in Australia of the value or values thereof and of the location of the same and of any document or documents evidencing title of the same.

The appellant was present in Court when that order was made.

The Judge found that the appellant's affidavit filed pursuant to that order was false and that he had been reckless in preparing and swearing it. The Judge directed himself as to the standard of proof required before a tribunal of fact could conclude that a civil contempt had been committed. He followed the recent decision of this Court in New South Wales Egg Corporation v Peek (1987) 10 NSWLR 72 at 82 and held that the civil standard applied although because of the gravity of the allegations against the appellant, a high degree of satisfaction was required in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336.

Mr Kintominas acknowledged that his submissions in this regard challenged the authority of the decision of this Court in Peek's case and he sought leave to reargue its correctness. Peek's case is a recent and fully considered decision of this Court in which all the participating judges joined. There has been no

subsequent decision of the High Court or of any other appellate court in Australia which throws any doubt on the correctness of the principles applied by this Court in that case.

It is true that in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, the High Court cast doubt on the validity of the traditional distinction between civil and criminal contempts. Nevertheless, it did not decide to obliterate that distinction in Australian law and its comments on the difficulties the distinction creates were fully considered by this Court in Peek's case.

Accordingly, this Court unanimously decided during argument that leave to reargue Peek's case would not be granted.

Mr Kintominas' second submission was that the reckless swearing of a false affidavit involved the offence of false swearing and perjury contrary to s29 of the Oaths Act. He then relied upon the decision in Coward v Stapleton (1953) 90 CLR 573 at 578-579, that perjury as such is not a contempt of court. The relevant passage for present purposes is at 579 where in the joint judgment the Court said:

"Tt cannot be too clearly recognised that the remedy for giving answers which are false is normally a prosecution for perjury or false swearing and not a summary committal for contempt. Such a committal can be justified only by a specific finding of an evinced intention to leave a question or questions unanswered or by a finding of contempt in some other defined respect."

That case did not involve any disobedience of a court order and it is perhaps significant that in the passage referred to their Honours leave open for different decision a case where there could be a finding of contempt in some other defined respect.

The present case involving the reckless swearing of a false affidavit is one where a finding of contempt is open on the basis of the wilful disobedience of an order of the Court.

Moreover, it seems to me the general principle that wilful disobedience of a Court order is a civil contempt should not be qualified by an exception merely because the conduct in question is also a criminal offence.

There is no such principle in the case of criminal contempts where conduct directed to a party, a witness or a party's legal representatives which involves a criminal assault, intimidation, or some other criminal offence involving an attempt to pervert the course of justice may also be a criminal contempt. The judge noted that the appellant's conduct may also have constituted one or more criminal contempts. However Mr Kintominas did not submit to this Court that conduct which is a criminal contempt cannot also be a civil contempt.

Accordingly I would not uphold the submission that the appellant's conduct could not be a civil contempt because it involved allegations of the offence of false swearing or perjury contrary to s29 of the Oaths Act.

This disposes of the challenges to the findings of guilt made by Hodgson J.

The remaining challenges to the Judge's order were directed to the exercise of his discretion in matters of sentence. His Honour rejected the possibility of imposing a substantial fine on the appellant, considering that this was not appropriate in view of his financial position. He then determined that the appropriate sentence for the contempts that he had found established was one month's imprisonment.

Mr Kintominas has said all that could possibly have been said in favour of the appellant on this question but I have been entirely unpersuaded that his Honour erred adversely to the appellant in the exercise of his sentencing discretion.

Counsel submitted that the Judge should have considered making and indeed should have made a community service order. Such an order could not be made under the relevant statute but could have been fashioned by the court in the exercise of its inherent jurisdiction in matters of sentence, a jurisdiction illustrated by the recent decision of this Court in Registrar Court of Appeal v Maniam (No2) (14 April, 1992, unreported) where such an order was made.

However the contempts found by the judge were serious ones. As a result of the reckless swearing of the false affidavit and the later breaches of the Mareva injunction, the appellant was able to dissipate his assets. Instead of retaining assets worth at least $200,000 which would be available to satisfy any orders made against him in the underlying proceedings, no such assets were preserved. The purposes of the Mareva injunction were frustrated and the civil proceedings against the appellant under the Fair Trading Act although successful have been without practical results for the former customers of the appellant.

In these circumstances, I am satisfied that the contempts found proved in this case called for something more than a community service order and that his Honour did not err to the prejudice of the appellant in the exercise of his sentencing discretion. Indeed, in my opinion, his Honour's sentence, if anything, was a lenient one and had I been the primary Judge I would have been inclined to have sentenced the appellant to a substantially longer period of full-time custody.

For these reasons, in my opinion, the appeal should be dismissed with costs. It may be necessary to say something further in due course on the question of the other orders which this Court should now make.

The orders of the Court therefore will be appeal dismissed with costs. The question of the resentencing of the appellant by varying the date the sentence is to commence is deferred pending an application for special leave to appeal to the High Court.

The proceedings are adjourned to Friday 4 December 1992 at 9.30 am. The appellant undertakes to the Court that an application for special leave to appeal to the High Court will be filed and prosecuted with due diligence. The appellant also undertakes to the Court to be present in Court at 9.30 am on Friday 4 December, 1992.