DITFORT v CALCRAFT [1989] NSWCA 64

DITFORT v CALCRAFT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY JA and Hope AJA 14-16 November 1989, 22 December 1989 [1989] NSWCA 64

CONTEMPT — subpoena — wilful default in answer to opponent gives instruction to another officer upon the basis of which a subpoena to produce documents addressed to the "proper officer" of the Department of Foreign Affairs is answered that there are "no documents caught by the subpoena" — answer later conceded to be incorrect — whether opponent's default was wilful or showed no honest belief in the instructions given — whether opponent gave instructions that further time should be sought properly to answer the subpoena — whether incorrect instruction merely unintentional disobedience — held: (Kirby P; Priestley JA and Hope A-JA concurring); (1) The claimant was the source with the department of the admittedly incomplete and inaccurate response to the subpoena given to the Supreme Court; (2) In the facts proved, the opponent did not, at least with sufficient clarity, indicate the need for further time accurately and properly to respond to the subpoena; (3) Whilst the response was not wilfully false, in the sense of being a deliberate and contumelious disobedience of the subpoena, it was not an unintentional disobedience insufficient to justify a finding of contempt. Australasian Meat Industry Employees' Union and Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 112 applied; t4) Upon the facts proved and upon a proper construction of the subpoena there were documents falling within the subpoena which the opponent ought to have ensured were brought to the notice of those answering the subpoena before the court. Lane v Registrar of Supreme Court of NSW (Equity Division) (1982) 148 CLR 245; (5) The charge of contempt of court was therefore proved against the opponent and submissions on penalty sought. Extenuating circumstances referred to.