NOF FeOre Or sSFRrBU770-V/ - o7 orden JUDGMENT No. 27.78% IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES No. NSW 1577 of 1986 ewer LE AND THE AUSTRALIAN CAPITAL TERRITORY RE: GRANT ANTHONY DITFORT Debtor/Applicant EX PARTE: DEPUTY COMMISSIONER OF TAXATION Judgment Creditor/Respondent CORAM: GUMMOW J. PLACE: SYDNEY. DATE: 3 JUNE 1988. MINUTE OF ORDER CONTEMPT MOTION THE COURT ORDERS THAT: 1. The respondent pay the applicant's costs of the motion. 2. Otherwise the motion is dismissed. Note: Settlement and entry of orders 1s dealt with by Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES No. NSW 1577 of 1986 wwe SS SS AND _ THE AUSTRALIAN CAPITAL TERRITORY RE: GRANT ANTHONY DITFORT Debtor/Applicant EX PARTE: DEPUTY COMMISSIONER OF TAXATION Judgment Creditor/Respondent CORAM: GUMMOW J. PLACE: SYDNEY. DATE: 3 JUNE 1988. REASONS FOR JUDGMENT ON CONTEMPT MOTION By application filed 19 November 1987, the applicant seeks an order under s. 154 of the Bankruptcy Act 1966 annulling his bankruptcy ("the principal proceedings"). These reasons for judgment deal with a contempt motion taken out by the applicant on 12 February 1988. The circumstances are as follows: In the course of the preparation of his case in the principal proceedings, the applicant, on 22 December 1987, caused to be issued by the Deputy Registrar in Bankruptcy a Summons under rule 125 of the Bankruptcy Rules. The Summons was directed to: "The Proper Officer Department of Foreign Affairs, 100 William Street Sydney" The Summons required attendance on 2 February 1988, and production of "any documents in your custody or under your control that relate to the matter, and in particular, the following documents: "As described in the Schedule see annexure hereto." The annexed schedule was in the following terms: "1. Copies of all documents and notes given to the Government of the Federal Republic of Germany or any agency of that Government in the years 1985, 1986, 1987; by or on behalf of the Australian Government in support of or arising out of the Australian Government's requests dated 3rd April 1985 and 8th July 1985 that Grant Anthony Ditfort be returned to Australia to be dealt with according to av. 2. Copies of all documents and notes given to the Australian Government or any agency of the Australian Government by or on behalf of the Government of the Federal Republic of Germany in response to or arising out of the Australian Government's requests dated 3rd April 1985 and 8th July 1985 that Grant Anthony Ditfort be returned to Australia to be dealt with according to law." On 2 February 1988, Mr. Ian Clarke, Acting Executive Officer, Administrative Law Section of the Department of Foreign Affairs and Trade ("the Department"), appeared in Court to respond to the Summons. He produced to the Court a bundle of documents in answer to the Summons and the parties were given liberty to inspect them. On the same day, the principal proceedings were set down for hearing on 17 March 1988. On 12 February 1988, the applicant filed a motion that Mr. Clarke be dealt with for contempt of court in respect of an allegedly inadequate response to the Summons dated 22 December 1987. On 29 February 1988, the Court gave the applicant leave to file an amended application and, by consent, the loosely expressed "statement of charge" therein 1s to be treated as the specification of the alleged contempt for the purposes of rule 176 (1) of the Bankruptcy Rules. The gravamen of the alleged contempt is that Mr. Ian Clarke, as the Proper Officer of the Department failed to produce to the Court on 2 February all of the documents falling within the terms of the Summons. On 17 March 1988, further documents were produced to the Court in further answer to the Summons of 22 December 1987. Mr. Gibb of counsel appeared. He indicated that after Mr. Ditfort had made his complaint, those instructing Mr. Gibb had caused further inquiries to be made. It was established that there were in fact further documents held at the Embassy in Bonn in the Federal Republic of Germany. It was not denied that these documents fell within the schedule to the Summons. Later, in the course of the hearing on 17 March, which dealt also with other aspects of the proceedings, Mr. Fergus, who is Mr. Clarke's superior and is the Director of the Administrative Law Section in the Department of Foreign Affairs and Trade, produced to the Court Parts 2, 3 and 4 of a file marked "German-Australian Relations Extradition Treaty". Mr. Fergus gave evidence that a search had been made on that 4. Morning to locate Part 1 of the file. Mr. Fergus stated that this part had not yet been located in Canberra, and that it might have been destroyed in accordance with usual arcnival procedures. In the course of a further hearing, on 31 March 1988, Part 1 of the file was produced to the Court and added to the documents already produced in answer to the Summons. The position, therefore, 1s that 1t 18 conceded that the Summons was not complied with, but reliance 1s placed upon the principles which appear in Halsbury's Laws of England, 4th Ed., Vol. 9, para. 53, under the heading "Civil Contempt". Paragraph 53, omitting the footnotes, reads as follows: 53. Unintentional Disobedience Although contempt may be committed in the absence of wilful disobedience on the part of the contemnor, committal or sequestration will not be ordered unless the contempt involves a degree of fault or misconduct. Thus accidental and unintentional disobedience is not sufficient to justify sequestration or committal, but the respondent may be ordered to pay the costs of the application. Mr. Gibb also relied upon Australasian Meat Industry Employees' Union v Mudginberri Station Pty. Ltd. (1986) 161 CLR 98 at 112-113. In his affidavit evidence, Mr. Fergus states that he has the responsibility within the Department for advising and implementing the administrative law aspects of matters affecting international relationships between Australia and all foreign countries. He says he 1s also responsible for answering subpoenas addressed to the Minister for Foreign Affairs and Trade, or to the Department, seeking documents, and that he has performed this duty in major cases on several occasions. He has occupied his present position since October 1984. The Summons issued 22 December 1987 was served on the Department in Sydney on 15 January 1988. Mr. Fergus was the officer responsible for initiating action to comply with the Summons, and after receipt of the Summons he took the steps he describes in his affidavit. However, he became 111 on 19 January, before that action had been completed. Mr. Ian Clarke took over at short notice to continue the action which Mr. Fergus had commenced. Mr. Fergus was not at work on 2 February, the return date of the Summons. He had a recurrent viral infection and this resulted in him taking two periods of sick leave in this period. The evidence shows that a facsimile message (No. F.CH 18110) was sent to the Australian Embassy in Bonn. Attached to it was a copy of the Summons, and the Embassy was asked to advise whether any documents were held of the type described in items 1 and 2 of the schedule. The Embassy was asked to forward all such documents to Mr. Fergus by the first available bag. On 20 January 1988, the Embassy replied by cablegram stating that all documents corresponding to those described in schedules 1 and 2 had been photocopied and authenticated, and would be forwarded to Canberra. Mr. Fergus had also instituted a search of records held in Canberra. The result was the production of the documents on 2 February. That, of course, was insufficient compliance with the Summons. After service of the bankrupt's application on 12 February 1988, Mr. Fergus conducted a further search of all relevant Department files. But he did not find any other documents within the schedule to the Summons. In the performance of its responsibilities, the Department retains copies of all cables sent to and received from overseaS on 1tS computerised records. However, Department files will not necessarily contain copies of all cables about a particular extradition sent from, for example, the Attorney-General's Department to an overseas post. Copies of all cables will, however, be kept by that post and the originating department in Australia. On Monday, 1 February 1988, all documents received from Bonn together with documents he had recovered from the Department's files were sent from Canberra to Sydney. These documents were produced to the Court by Mr. Clarke on 2 February 1988. On 10 March 1988, Mr. Fergus caused to be sent to the Australian Embassy at Bonn a cablegram (No. O.CE 507105) as follows: DITFORT HAS ALLEGED THAT DFAT IS IN CONTEMPT OF THE FEDERAL COURT ON THE GROUND THAT WE HAVE NOT PRODUCED ALL DOCUMENTS WHICH HE KNOWS TO EXIST, IN ANSWER TO HIS SUMMONS: FOR EXAMPLE, COPIES OF ATTORNEY-GENERAL'S REQUISITION, WARRANTS AND SUPPORTING EVIDENCE, AND JUDGMENTS OF GERMAN COURTS. WE WOULD BE GRATEFUL IF YOU WOULD IMMEDIATELY INITIATE A FURTHER SEARCH TO IDENTIFY ANY DOCUMENTS WHICH MIGHT NOT HAVE BEEN FOUND PREVIOUSLY. URGENT CABLED RESPONSE WOULD BE APPRECIATED TO ENABLE US TO PREPARE FOR HEARING OF THE CONTEMPT APPLICATION ON 17 MARCH 1988. On the same day, there was sent from the Bonn Embassy to the Department in Canberra a cablegram (No. 0.BO 40793) reading as follows: 507858) to be sent in response. follows: WE HAVE PHOTOCOPIED AND AUTHENTICATED ALL (UNDERLINE ONE) MATERIAL ON THE DITFORT CASE HELD AT THE POST INCLUDING THE ATTORNEY-GENERAL 'S REQUISITION, WARRANTS AND SUPPORTING EVIDENCE. 2. THE FORMER FIRST SECRETARY IN BONN, ALEX BROOKING, WHO DEALT WITH THE DITFORT CASE DURING HIS POSTING HERE, IS NOW WORKING IN THE WEST EUROPE SECTION. IT MAY BE USEFUL, IF YOU HAVE NOT ALREADY DONE SO, TO DISCUSS THE CASE WITH HIM. 3. ALL MATERIAL WITH EXCEPTION OF CONFIDENTIAL CABLES . . . WILL BE RETURNED TO CANBERRA PER AIR FREIGHT BAG NO 510 OF 11.3.88. On 11 March, Mr. Fergus caused a cablegram REFTEL CAUSES US GRAVE CONCERN. F.CH 18110 REQUESTED QUOTE PLEASE FORWARD ALL SUCH DOCUMENTS (I.E. THOSE DESCRIBED IN ITEMS 1 AND 2 OF THE SCHEDULE) TO ME BY FIRST AVAILABLE BAG UNQUOTE. WE HAVE NOW TO EXPLAIN TO THE FEDERAL COURT WHY DOCUMENTS SENT TO YOU FOR ONFORWARDING TO THE FRG GOVERNMENT WERE OMITTED DESPITE THE CLEAR TERMS OF THE SCHEDULE. 2. PLEASE FORWARD IN AIR FREIGHT BAG 510 OF 11.3.88 ALL ORIGINAL (UNDERLINE TWO) DOCUMENTS, IN ORIGINAL FILE COVERS, WHICH (0.CE The material parts read as RELATE TO DITFORT CASE. WE MUST HAVE EVERYTHING (UNDERLINE ONE) HELD BY THE EMBASSY. 3. OFFICER RESPONSIBLE FOR HANDLING THE WORK ON F.CH 18110 SHOULD DESPATCH URGENTLY BY TELEMEMO A FULL REPORT ON THIS MATTER DETAILING THE FOLLOWING: (T) HOW ORIGINAL SEARCH WAS CONDUCTED, INCLUDING ALL FILE REFERENCES; (II) REASONS WHY SELECTION WAS MADE FROM AMONGST DOCUMENTS HELD; (III) WHETHER FURTHER DOCUMENTS WERE IDENTIFIED IN RESPONSE TO 0O.CE 507105 AND IF SO WHY THEY WERE NOT IDENTIFIED IN ORIGINAL SEARCH. 4. FAILURE TO PRODUCE ALL DOCUMENTS HAS CAUSED EMBARRASSMENT FOR DFAT AND A-G'S BEFORE THE COURT. TO MINIMISE DAMAGE, WE MUST PROVIDE ALL DOCUMENTS AND BE ABLE TO GIVE A FULL EXPLANATION AT THE HEARING ON 17 MARCH. The response from Bonn was by cable (No. 0.BO 40800 dated 11 March 1988). The material part of this reads as follows: WE REGRET THAT OUR COMMENT "ALL MATERIAL" IN 0.BO 40793 CAUSED YOU CONCERN. 2. ALL DOCUMENTS REQUESTED IN F.CH 18110 WERE DESPATCHED TO CANBERRA BY FIRST AVAILABLE BAG (AF 503 OF 22.11.88). THE ONLY POSSIBLE EXCEPTION BEING A COPY OF THE ENGLISH VERSION OF THE ATTORNEY GENERAL'S REQUISITION, WARRANT AND SUPPORTING EVIDENCE. WE HAD PRESUMED A COPY OF THIS DOCUMENT WOULD BE HELD IN CANBERRA FROM WHERE ORIGINAL WAS SENT. A COPY OF THE GERMAN TRANSLATION, WHICH YOU MAY NOT HAVE WAS, HOWEVER, RETURNED. OUR REFERENCE TO "ALL MATERIAL" IN PARA 1 OF 0.80 40793 MEANT EVERY ITEM OF CORRESPOND- ENCE [sic] HELD AT THE POST THAT REFERRED TO THE DITFORT CASE AND NOT (UNDERLINE ONE) ADDITIONAL MATERIAL COVERED BY ITEMS 1 AND 2 OF THE SCHEDULE OF THE SUMMONS TO WITNESS. 3. ALL DOCUMENTS REQUESTED IN PARAGRAPH 2 OF REFTEL HAVE BEEN DESPATCHED BY AIR FREIGHT BAG NO 510 OF 11.3.88. MATERIAL NOT RELATED TO THE DITFORT CASE WAS REMOVED FROM THE THREE FILE PARTS BEING RETURNED AND IS HELD AT POST. 4. REPORT REQUESTED IN PARA 3 OF REFTEL FOLLOWS BY TELEMEMO. The telememo, also dated 11 March 1988, so far as material, provides as follows: T) M VAN RIJN, SECOND SECRETARY (C+A) CONDUCTED THE WORK ON F.CH 11110 By REVIEWING PARTS 2, 3 AND 4 OF PILE 821/2/6 (GERMAN-AUSTRALIAN RELATIONS, EXTRADITION TREATY ) AND COPYING ALL DOCUMENTS CORRESPONDING TO THOSE DESCRIBED IN ITEMS 1 AND 2 OF THE SCHEDULE OF THE SUMMONS TO WITNESS. AS YOU ARE AWARE ITEMS 1 AND 2 OF THE SUMMONS TO WITNESS SOUGHT COPIES (1) ONLY OF RELEVANT DOCUMENTS. PAGE 5 OF F.CH 18110 REFERS. II) NO SELECTION OF DOCUMENTS WAS MADE. DOCUMENTS FORWARDED WERE THOSE SOUGHT BY ITEMS 1 AND 2 OF THE SCHEDULE OF SUMMONS TO THE WITNESS DATED 22.12.87 WHICH WAS FAXED TO BONN ON 20.1.88 PER F.CH 18110. III) NO FURTHER DOCUMENTS WERE IDENTIFIED IN RESPONSE TO 0.CE 507105. A COPY OF THE ENGLISH VERSION OF THE ATTORNEY GENERAL'S REQUISITION, WARRANTS AND SUPPORTING EVIDENCE COULD, HOWEVER, FALL INTO THIS CATEGORY. (PLEASE SEE PARA 2 OF 0.BO 40800 FOR EXPLANATION). THE ORIGINAL (UNDERLINE ONE) AND ORIGINAL TRANSLATION (IN GERMAN) OF THE ATTORNEY GENERAL'S REQUISITION, WARRANTS AND SUPPORTING EVIDENCE, WAS FORWARDED TO THE GERMAN AUTHORITIES AND IS OF COURSE HELD BY THEM. The circumstances in which there was a failure to comply with the terms of the Summons sufficiently appear from what has been set out above. The evidence shows that, on receipt of the Summons, 10. Mr. Fergus and those assisting him promptly took the matter in hand. The failures in the operation of what otherwise should be an effective system lay in the careless and inefficient response from the Bonn post to the requests from Canberra. It 1s true that as late as 31 March 1988, the documents produced from records in Australia had to be supplemented by part 1 of the file. However, it had only become apparent to Mr. Fergus (as he indicated in his oral evidence on 17 March) that part 1 might exist after receipt of a memorandum from the Embassy in Bonn dated 11 March. This aspect of the matter was then promptly put in hand by Mr. Fergus. In all the circumstances of the case, and having regard to the careless and inefficient conduct of those in the Bonn post, the facts nevertheless attract the application of the principle to which I have already referred. The present case stands in contrast to authorities such as James v Cowan (1929) 42 CLR 305. There, the Acting Secretary of the Dried Fruits Board of South Australia was directed by the South Australian Minister of Agriculture to refuse to produce, in response to a subpoena to produce certain minute books of the Board. That was a case of deliberate disobedience which plainly constituted a contempt for which the Acting Secretary was dealt with by the High Court. The present case 1s one of casual accidental and unintentional disobedience and it 1s not one of conscious intentional or systematic disobedience: Heatons Transport (St. Helens) Ltd. v Transport and General Workers' Union [1973] AC 15 at 108-109; Australasian Meat Industry Employees' Union v Mudginberri Station Pty. Ltd. (supra); New South Wales Egg Corporation v Peek (1987) 10 NSWLR 72 at 81-82. The result 1s that the failure to comply with the terms of the Summons has been established (and indeed was not disputed) but no order should be made for punishment. However, I propose to order that the respondent to the motion filed 12 February 1988 pay the costs thereof of the applicant. I certify that preceding pages Reasons for Justice Gummow. Associate: Date: Counsel for the Applicant: Counsel for the Respondent: Date of Hearing: Date of Judgment: this and the ten (10) are a true copy of the Judgment of his Honour Mr. oa a Kone 3 June 1988, The applicant appeared in person. S. Gibb instructed by the Australian Government Solicitor. 17 and 31 March 1988, 12 May 1988. 3 June 1988.