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. PRACTICE and PROCEDURE — subpoena — importance of — proper procedure in response to — legal history of — duty of honest and accurate answers to subpoenas — duty of persons not parties discussed in the context of proceedings for contempt of court for failure to answer a subpoena. LEGAL HISTORY — subpoenas — subpoenas to witnesses subpoenas for production of documents — references by Kirby P to the history of the development of the power of courts to issue subpoenas and their importance for the administration of justice. Australian Consolidated Press Limited vy Morgan (1965) 112 CLR 483, 499 referred to. Supreme Court Act 1970, s48(2)(i). Crimes (Taxation Offences) Act 1980. The proceedings stand over to be listed on or before Wednesday 30 January 1990 on a date suitable to the Court and to the parties for the consideration of any submissions which the parties wish to make on the subject of penalty. Kirby P Before the Court is a summons by Mr Grant Ditfort (the claimant) charging Mr Ben Calcraft (the opponent) with contempt of court. This summons is the latest in a series of proceedings brought by Mr Ditfort. Put shortly, he alleges that Mr Calcraft, then an officer of the Department of Foreign Affairs and Trade, committed a contempt of court by giving instructions on behalf of that 2 UNREPORTED JUDGMENTS department in answer to a subpoena served upon "the proper officer of the Department of Foreign Affairs". The claimant alleges that when he gave the instructions on the answer to be made to the subpoena, (which were later communicated to Finlay J in the Supreme Court) those instructions were, to the knowledge of the opponent, false. Alternatively, he charges that the opponent had no honest belief that the instructions were true. As the proceedings developed, it became clear that the principal case brought by the claimant was of the latter character, viz, that the opponent had no honest belief in the truth of the instructions given but acted with such indifference to the facts known or readily ascertainable by him as to amount, in law, to contempt of court. The opponent, who has given evidence, denies the charge. To resolve the controversy presented by the evidence and arguments of the parties, it is necessary to examine in some detail the evidence called before the Court. But first it is appropriate to say something about the history of subpoenas and the law which has developed to uphold the obligation of those receiving them to comply with them. The long history of the writ of subpoena The power of a court to require the attendance before it of parties and witnesses, for the purpose of their giving evidence or producing documents, is a power essential to the administration of justice. The power to summon witnesses has a long legal history. The King's Council (curia regis), the mother of the common law courts, used its executive authority to compel the attendance of parties, adapting for that purpose procedures based primarily upon ministerial forms. It was the power to compel attendance before the Council that made it popular with litigants. Its practice of issuing a writ of subpoena was adapted by the Chancellor. It became very important in the development of his jurisdiction. Historians attribute much of the authority of early Chancery to the use of the writ of subpoena. To the writ or summons was annexed a notice that to non-attendance a penalty was attached. In that sense the recipient was under the power (sub poena) of the Court to answer the complaint in the petition. If the answer given was unsatisfactory, the recipient could be imprisoned until he or she had made redress. In this way, literally, the proceedings in Chancery were in personam. Under the old Chancery practice, every suit was commenced by a writ of subpoena. In the old books "subpoena" is equivalent to "suit in equity" or "bill of complaint". Subsequently the subpoena was endorsed on the bill of complaint. Only over time did equity proceedings begin by writ of summons and, later, statement of claim. The adaptation of this procedure in the common law courts, and for the attendance of witnesses, happened over a great period of time. Even as late as 14SO, it was considered acceptable for jurors in criminal proceedings to go to the house of a suggested witnesses to ask the witness what was known about the matter. See YB 28 Hen VI Pasch 1 (1450). If the witness went to the jury, such action could amount to held to amount to maintenance. This risk made honest witnesses reluctant to volunteer evidence. The success of the subpoena in Chancery proceedings, which enabled witnesses to testify without fear, stood for centuries in contrast to the common law courts. There, originally, no witnesses were compellable. No process could be issued to bring them before the court. Up to the time of Coke, it was frequently said that the evidence of witnesses to the jury was no part of a criminal trial "for trial is by jury, not by witnesses". Coke, 3 Inst, 26-27. TFT Plucknett, A Concise History of the Common Law, 4th ed, URJ DITFORT v CALCRAFT (Kirby P) 3 London, Butterworths, 1948, 411. See also Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483, 499 ff. In the reign of Henry VII, the Parliament at Westminster, by 3 Hen VII cl, gave Parliamentary sanction to the use of the writ of subpoena and various methods for bringing defendants before the Council. Perhaps with this statute in recent memory, Parliament, early in the reign of Elizabeth I enacted an important statute to establish a process to compel the attendance of witnesses in criminal proceedings and to make perjury by such witnesses a crime. 5 Eliz I c9(1563). This, in turn, reinforced an earlier statute of the reign of Philip and Mary by which the Crown could compel the attendance of its witnesses. See 2 and 3 Phil and Mar, c10(1555). So the availability of the subpoena to bring before criminal courts witnesses who might have some relevant evidence to place before such courts, equally for the Crown as for the accused, is more than four centuries old in our legal tradition. Contempt for non-compliance with a subpoena The importance of the subpoena, whether to give evidence or to produce documents, is borne out by the daily experience of the courts. So high is the value placed upon finality of litigation that the failure of a person to call evidence which was available at a trial is usually fatal to the later application to have that evidence admitted on appeal. This is true of civil causes. See eg Council of the City of Wollongong v Cowan (1955) 93 CLR 435; 444; Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235. A recent illustration is Mann and Anor v Westpac Banking Corporation, Court of Appeal, unreported, 8 November 1989; (1989) NSWJB 217. It is also true in criminal appeals. See discussion in Ratten v The Queen (1974) 131 CLR 510, 520 and George Ristevski v The Queen (1989) 39 A Crim R 11, 13 (CCA, NSW). These well known features of our legal system make the faithful compliance with subpoenas issued by the courts essential to the proper administration of justice. They explain why courts are vigilant to insist upon such compliance by persons the subject of subpoena. Such insistence is achieved principally by means of the law of contempt of court. Contempt proceedings are criminal in nature. Australasian Meat Industry Employees' Union and Others v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 106. Their purpose is to protect the effective administration of justice by demonstrating that the court's orders will be enforced. Ibid, 107. There is a public interest in the exercise of the contempt power in cases of disobedience to an order of the court, including to subpoena requiring the attendance of a witness to give oral evidence or to produce documents. Despite the fact that contempt is criminal in nature, it has %X6 repeatedly been said that a criminal intent, ordinarily necessary to establish a crime, is not (for historical reasons) an essential ingredient to the proof of contempt. John Fairfax and Sons Pty Ltd v McRae (1955) 93 CLR 351, 371. See also The Prothonotary v Collins (1985) 2 NSWLR 549, 551 (CA). Nevertheless, although not a decisive consideration, the actual intention or purpose (if any) lying behind a contempt is considered relevant, its importance varying according to the circumstances. See McRae, 371. Where what is charged is the failure of a person to answer a subpoena for the production of documents, care will be taken to ensure that the person charged is the person described in the subpoena and that he or she had such possession, custody or control of the documents as to oblige that person to produce them in answer to the subpoena. Rochfort v Trade Practices Commission (1982) 153 CLR 134. Care will also be taken to ensure that a person charged with contempt, who is not a party to the proceedings, should not be subjected to the obligation of an unduly 4 UNREPORTED JUDGMENTS burdensome search for evidence at that person's own expense. See Lane v Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245. In defence of that objective, courts are at pains to exclude from the obligation to produce documents, any documents which are not within the precise scope of the subpoena. One consequence of the criminal nature of a proceedings for contempt is that courts will construe the subpoena in question quite strictly, where it relates to documents. Ambiguity, at least in the case of subpoenas addressed to witnesses who are not parties, will be construed favourably to the recipient when an assessment is made of whether the failure to produce the documents was an act likely to interfere with the course of justice. Moreover, a distinction has been drawn between "casual, accidental and unintentional disobedience" of a subpoena, on the one hand and "wilful disobedience", on the other. See Mudginberri, above, 113. Although this distinction sits somewhat uncomfortably with the rule that intention is not a necessary ingredient of contempt, and although it might, conceptually, be more relevant to the issue of punishment, the distinction drawn is clear law in Australia, following Mudginberri. It must therefore be applied by this Court in considering a charge of contempt arising out of the failure to produce documents in answer to a subpoena. With these remarks of a preliminary character, I now turn to the facts of this case. An imperfect answer to a subpoena Many of the facts in these proceedings were not in dispute. The claimant was arrested in Ludwigsburg, in the Federal Republic of Germany (FGR) on 12 March 1985. A warrant for his arrest in relation to a number of offences, including conspiracy to defraud the Commonwealth, was issued in respect of the claimant. Put shortly, it was alleged that in 1981 the claimant had carried on a scheme which involved stripping companies of their assets and leaving them with no capacity to pay income tax when it fell due. It is not necessary or desirable to describe the alleged scheme or to reflect upon the claimant's alleged criminality. Some aspects of the matter are yet to be considered by the Court of Criminal Appeal on an appeal which the claimant has brought against a conviction to which I will later refer. Necessarily, to support the return of the claimant to Australia, representations were made to the authorities in the FGR first through Interpol and later through agencies of the FGR government. In the normal way, these representations were made by written communication addressed by the Australian Embassy in Bonn to the relevant FGR governmental agencies. They resulted in the arrest of the claimant, his detention and hearings in the FGR at first instance and on appeal. English language translations of the decisions of the Third High Criminal Court and of the Circuit Court of Appeals of Stuttgart (Third Penal Division) were tendered in these proceedings. They reveal that the claimant objected to the decision for his extradition. They disclose that he was represented by counsel. They disclose that on several grounds he was protesting the admissibility of his extradition and asserting its unlawfulness by international law. These objections were rejected by the German courts. The claimant was then brought back to Australia to face charges and to stand trial. It is not necessary for these proceedings to consider the detail of the steps leading to the extradition. The trial of the claimant and of a co-accused was listed to take place before Finlay J in the Supreme Court on 27 July 1987. In advance of that day, and at the request of the claimant, Finlay J listed for argument an application of the URJ DITFORT v CALCRAFT (Kirby P) 5 claimant for a permanent stay of the proceedings against him. In support of that application, the claimant alleged that he had been unlawfully extradited from FGR to Australia. Cf Levinge v Director of Custodial Services, Department of Corrective Services and Ors (1987) 9 NSWLR 546 (CA). The matter was set down for argument on Monday 1 June 1987. To support his argument, the claimant caused a subpoena for production of documents to be issued out of the Sydney registry of the Criminal Division of the Supreme Court. It was addressed to "The Proper Officer, Department of Foreign Affairs, 100 William Street, Sydney, NSW". The schedule of documents attached to the subpoena required the production of the following: "1. Copies of all documents and notes given to the Government of the Federal Republic of Germany or any agency of that Government in 1985 by or on behalf of the Australian Government or any agency of that Government in support of or arising out of the Australian Government's request dated 8 July 1985 that Grant Anthony Ditfort be returned to Australia to be dealt with according to law. 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 or any agency of that Government in response to or arising out of the Australia (sic) Government's request dated 8 July 1985 that Grant Anthony Ditfort be returned to Australia to be dealt with according to law." When the matter was called, the Crown Prosecutor submitted that the basis upon which the claimant was pursuing his application did not raise a justiciable issue. However, Finlay J reserved that question and proceeded first to call for the answer to the subpoenas which the claimant had issued. The transcript of the proceedings before his Honour has been placed before this Court. It contains the following entry: "°(Miss L Wild of Department of Foreign Affairs, called upon to produce documents in answer to the subpoena. Miss Wild stated that there were no documents that fall within the scope of the subpoena).' 'Miss L Wild on behalf of the German Ambassador, called upon to produce documents in answer to the subpoena. Miss Wild stated that she was instructed to inform the court that the German Ambassador would be relying upon their (sic) diplomatic immunity.' 'William Thomas Harrigan, detective inspector with the Australian Federal Police, called upon to produce documents in answer to the subpoena. Det Insp Harrigan stated that there were no such documents in relation to the subpoena within the Australian Federal Police." There was some discussion about a further subpoena which had been served on the Director of Public Prosecutions but no formal call was made for the answer of that subpoena. The following exchange then followed with counsel for the claimant: "HIS HONOUR: In respect of Miss Wild and Det Insp Harrigan, there is no purpose for them to be further delayed, is there? COUNSEL: No, Your Honour. It seems surprising that in the case of the Department of Foreign Affairs there would be no documents. HIS HONOUR: You are bound by the answer. COUNSEL: Yes, I am, Your Honour." Finlay J then proceeded to hear argument on the preliminary objection as to the justiciability of the issue which the claimant wished to argue. Counsel for the claimant agreed to this course saying "we have difficulty with the second 6 UNREPORTED JUDGMENTS substantive question without the documentary material such as it may be". Argument continued on Tuesday 2 June 1987. Finlay J gave judgment on the preliminary question on 10 June 1987. In the course of doing so he said: "On behalf of Mr Ditfort certain subpoena had issued returnable | June 1987. A representative of the Department of Foreign Affairs on behalf of the German Ambassador informed the court that in respect of a subpoena directed to the Ambassador, he would be relying on diplomatic immunity. On behalf of the Department of Foreign Affairs and the Australian Federal Police, the court was advised that no documents were held falling within the subpoena." Finlay J did not have available to him the Court of Appeal decision in Levinge, although he mentioned the decision of Smart J at first instance. His Honour accepted that the Extradition (Foreign States) Act 1966 (Cth) did not apply to the FGR at the time of the claimant's extradition (although it has since been made applicable). He referred to the observations of Mason J in Barton and Anor v The Commonwealth (1974) 131 CLR 477, 498 and the expansion of, and limits upon, court powers to examine the exercise of the prerogative power of the Crown. He concluded that the statements made by the Australian authorities to those of the FGR concerning the extradition of the claimant were "in the exercise of the prerogative power akin to the making of treaties". He held that the legality of the extradition was non justiciable. He therefore refused the claimant's application for a stay. He directed that the the trial should proceed on the date fixed. He reserved to the claimant the right to raise any "other issue to support any claim that the extradition... was unlawful". However counsel then appearing for the claimant conceded "on the available material, the matter has been exhausted'. It is now conceded, as it was in certain earlier proceedings, that the answer to the subpoena by Miss Wild was inadequate. There were indeed documents falling within the subpoena in the possession of the Department of Foreign Affairs and Trade. There has been placed before this Court a file of documents, being principally copies of cablegrams which passed between the department in Canberra and the embassy in 80nn and in return. The file now contains several documents which certainly fall within the subpoena. In the light of the necessary involvement of the department in the claimant's extradition to Australia, the response by Miss Wild to the subpoena served on the department was indeed surprising, as the claimant's counsel said to Finlay J. But it was not the only such response, as will be demonstrated. Following the conclusion which Finlay J reached on the admissibility of the claim for a stay, the claimant stood his trial upon offences charged under the Crimes (Taxation Offences) Act 1980 (Cth). He was found guilty of four of the six charges contained in the indictment. He was sentenced to serve a period of three years imprisonment. Because of the substantial period which he had served in custody following his arrest in the FGR and before his release to bail on his return to this State, the claimant was released from prison almost immediately following sentence. However, in certain proceedings in the Federal Court of Australia, the claimant had been made bankrupt on the petition of the Deputy Commissioner of Taxation. On 22 December 1987 the claimant caused a summons to be issued under R125 of the Bankruptcy Rules. This required the Proper Officer of the Department of Foreign Affairs to produce to the Federal Court the documents described in a schedule to the summons. The description of the documents annexed to the summons is not materially different from that contained in the subpoena earlier issued out of the Supreme Court and returned before Finlay J. URJ DITFORT v CALCRAFT (Kirby P) 7 On 2 February 1988, Mr Ian Clarke, Acting Executive Officer of the Administrative Law Section of the Department of Foreign Affairs and Trade, appeared in the Federal Court to respond to the summons. What then happened is set out by Gummow J in his reasons for judgment on a motion for contempt dealt with by his Honour. See Re Grant Anthony Ditfort; ex parte Deputy Commissioner of Taxation, Federal Court of Australia, unreported, 1577 of 1986, 3 June 1988. Those reasons have been placed before this Court without objection. His Honour's statement of facts was not disputed by either of the parties before this Court. They disclosed that a bundle of documents produced by Mr Clarke on 2 February 1988 was found to be an inadequate response to the Federal Court summons. As a result of the commencement of the contempt proceedings, further documents were produced to that Court on 17 March 1988 by counsel who then appeared for Mr Clarke. According to Gummow J: "He indicated that after Mr Ditfort had made his complaint, those instructing... 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.... In the course of a further hearing, on 31 March 1988, Pt1 of the file was produced to the Court and added to the documents already produced in answer to the Summons." Gummow J examined the explanations given for the earlier inadequate response to the summons. He attributed the default, essentially, to the "careless and inefficient conduct of those in the Bonn post". He concluded that the case was one of "casual, accidental and unintentional disobedience". He decided that no order should be made for punishment, although failure to comply with the terms of the summons had been established. He ordered the respondent to the summons to pay the costs of the claimant. Targeting the person responsible Doubtless encouraged by this result, the claimant commenced proceedings in this Court for the punishment for contempt of the Supreme Court of the person responsible for the admittedly inadequate answer to the subpoena returnable before Finlay J. The jurisdiction of this Court to deal with such contempt is not in dispute. See Supreme Court Act 1970, s48(2)(i). Cf The Prothonotary v Collins (1985) 2 NSWLR 549. The first person whom the claimant sought to have dealt with for contempt was the Honourable William Hayden. At the time of the answer to the subpoena before Finlay J, he was the Minister for Foreign Affairs and Trade. The claimant argued that he was therefore, within the terms of the subpoena, the "Proper Officer" of the department and could be dealt with for the default. However, on the motion of Mr Hayden, the Court dismissed him from the proceedings. See Ditfort v Hayden and Anor, Court of Appeal, unreported, 11 November 1988; (1988) NSWJB 213. It was held that, whatever the parliamentary and political accountability of the Minister, he was not, within the terms of the subpoena, the "proper officer" named. The costs of the proceedings were reserved. In the same proceedings, the claimant had sought to have Miss Wild dealt with for her alleged contempt, being the answer which she gave, as recorded in the transcript, before Finlay J. However, the Court (differently constituted) later held that there was no evidence of contempt by her. It appeared from evidence adduced before the Court that Miss Wild was not (despite the description in the transcript) an officer of the Department of Foreign Affairs and Trade. She was an employee of the Australian Government Solicitor's Office. She was merely asked 8 UNREPORTED JUDGMENTS to come to court to answer the subpoena. She gave answer strictly in accordance with the instructions that were given to her. The Court dismissed the summons against Miss Wild. It made no order as to costs including those reserved in the case of Mr Hayden. However, the Court (Hope, Clarke and Meagher JJA) went on to say: "Before concluding this should be said: The Court does not have before it all the relevant material and so no judgment can be made in respect of what was done by the Department of Foreign Affairs or by the Australian Government Solicitor's Office, but at least this is clear. If a subpoena is issued by the Court and is served upon a department of the Commonwealth the department should answer the subpoena in at least one of two ways. There are no doubt other ways but these two seem to be the appropriate ones to discuss for present circumstances. The representative of the Department may come to court and say that the subpoena is irregular, and the Court can then deal with the question of irregularity. If it does not wish to raise the irregularity it should deal with the subpoena properly and take all those reasonable and necessary steps to ensure that those documents are produced to the Court which fall within the terms of the subpoena and which are within the possession, custody or control of the Department. Although no concluded view is expressed as to what took place in the present case because all of the facts are not before the Court, nonetheless on the evidence which is before it the Court cannot but have a feeling of disquiet that more could and should have been done. The Australian Government's Solicitor's Office should bring to the notice of its departmental clients their obligation properly to deal with subpoenas issued by the Court, and the consequences of their failure to do so." The claimant did not allow matters to rest there. As appears in evidence before this Court, he remained angered by the circumstances of his arrest in the FGR, including a period of confinement in a psychiatric ward which he apparently suffered because he could not adequately explain his protests at his arrest. He was also frustrated by his suggested inability properly to mount his claim for a stay because of the want of the evidence for which he had issued a subpoena. Finally, he was determined to track down the person(s) responsible within the department for the failure to answer the subpoena issued by the Supreme Court. It should perhaps be said that the claimant is obviously an intelligent man. As noted by the Court in earlier proceedings, he conducted his case in person; with skill and restraint. The third "target" of the claimant's proceedings was Mr Denis Foot. In the case against Miss Wild it had emerged that she had received her instructions from Mr Foot. It was contended that the information he had conveyed to her was false to his knowledge. The court examined the evidence concerning the involvement of Mr Foot. It concluded, unanimously, that Mr Foot had, to use his own description, acted merely as a "postbox". He gave evidence that he had been given instructions by Mr Calcraft (the present opponent) and had simply relayed these to Miss Wild. Accepting this evidence, the Court unanimously dismissed the summons against Mr Foot. By majority (Clarke and Meagher JJA; Mahoney JA contra) the Court made no order as to costs. Clarke JA concluded his reasons: "Tn the present case the court and the claimant's legal representative accepted that the answer furnished by the representative of the Australian Government Solicitor was reliable. They did so upon the assumption that the Australian Government Solicitor's officers had taken appropriate steps to ensure that the URJ DITFORT v CALCRAFT (Kirby P) 9 court was not misled in any way. In this they were both sadly mistaken. The dereliction of duty of the opponent, in conjunction with the conduct of Mr Calcraft, resulted in the deception of the court and may possibly have led to significantly prejudice the claimant." At the end of his reasons, Meagher JA said: "The facts seem to be as follows: the subpoena fell into the hands of a Mr Calcraft at the Department; that gentleman telephoned Mr Foot at the Attorney-General's Department and informed him that a subpoena had been received, but did not communicate to him the contents of that subpoena; he also informed him that there were in existence no documents which were called for by the subpoena; Mr Foot, without seeking to enquire as to the truth of that assertion, thereupon instructed Miss Wild to make the answer she did. Mr Calcraft, therefore, misled Mr Foot, and Mr Foot, although purporting to be a solicitor, undertook an important litigious task in a wholly reprehensible manner, regarding himself as a mere "post box" (to use his own words) rather than as a solicitor. These circumstances absolve Mr Foot of contempt but brand him as irresponsible." Faced with these conclusions, the claimant commenced proceedings against Mr Calcraft. He also commenced proceedings against Mr Graham Vincent Brown but these have not been heard. At the relevant time, Mr Brown was an officer in the office of the Director of Public Prosecutions. Although the subpoena addressed to him was not, apparently, formally called before Finlay J, the parties proceeded upon the basis that he too had no documents falling within the terms of the subpoena. The finding of the involvement of Mr Calcraft made in earlier cases does not establish the facts upon which the present proceedings must be determined. The charge against Mr Calcraft must be decided strictly upon the evidence adduced before us. Counsel for Mr Calcraft was right to remind the Court that a natural frustration about bringing home to a responsible person in the department should not result in a finding against Mr Calcaft, unless the evidence established contempt on his part to the requisite standard of proof. It is now necessary to turn to what was proved concerning the activities of Mr Calcraft. The opponent's evidence When, at the end of the claimant's case, the Court found that there was a case to answer, Mr Calcraft was called to give evidence. He had previously served upon the claimant an affidavit setting out his evidence. This was not seen by the Court, however, until the above ruling was made. Mr Calcraft was cross-examined by the claimant. From his oral evidence it appears that he was born in 1949. He graduated from the Australian National University in 1977 with a degree of Bachelor of Laws. He joined the Commonwealth Public Service in 1980 and worked for a time in the office of the Deputy Crown Solicitor. In 1983 he served with the Insurance Commissioner. In 1985 he began working in Darwin in various posts. He returned to Canberra in October 1985 to the Department of Foreign Affairs and Trade. His assignment was to the Administrative Law Section of the department. That section is not ordinarily responsible for extradition proceedings. Such proceedings are handled by the Bilateral and Domestic Law Section of the department, usually as an intermediary for the Attorney General's Department in communicating requests for extradition through Australian overseas missions to the governments of the countries concerned. 10 UNREPORTED JUDGMENTS It emerges from this resume of the opponent's background that he is a lawyer who had held senior positions in the Australian Public Service. He now holds a responsible position in connection with a committee of Federal Parliament. His qualifications as a lawyer and his experience in legal matters should have made him aware of the high importance attached by courts to an honest and accurate answer to subpoenas issued by such courts. On the other hand, he was a person without direct involvement in a claimant's extradition. Extradition was not his regular work. In his personal life, he had recently suffered the distraction of the death of his father after a long struggle with cancer. When he first became aware of the claimant's subpoena, the opponent was acting as Director of the Administrative Law Section in the absence of Mr Paul Fergus, the Director, who was overseas. In that capacity, on or shortly after 21 May 1987, he received a minute from a Mr J G Fennessy alerting him to the fact that the claimant "may be taking legal action to subpoena documents held by Foreign Affairs". The minute contained the request: "The Attorney-General's Department requests that no documents on this matter be released without prior reference to that Department." The minute referred to the contact officer, Mr Dennis (sic) Foot. On Thursday, 28 May 1987, the claimant caused the subpoena, the subject of these proceedings, to be served on the office of the Department of Foreign Affairs and Trade in Sydney. Copy of this subpoena was then sent by facsimile to the Bilateral and Domestic Legal Section of the department in Canberra. It was received by Mr R Puckridge, Acting Director of that section. On Friday 29 May 1987 at 10.15 am, Mr Puckridge handed the facsimile to the opponent. As Acting Director of the Administrative Law Section, the opponent's position involved him in the coordination of responses to legal documents received by the department. Most of these, apparently, concerned medical or personal records. Although the opponent took no notes of his conversation with Mr Puckridge, nor recorded them subsequently in any record, his recollection was that Mr Puckridge said something to the effect that the subpoena may not have been properly served. "It does not allow a reasonable time to respond". The opponent says that both he and Mr Puckridge were busy with other commitments that day and that both sections of the department were short of staff. Nevertheless, the opponent's evidence is that he took the facsimile copy of the subpoena to Mr B Matthews, Acting Assistant Secretary of the International General and Legal Branch. He pointed out that the department had only one day to answer it. But according to the opponent, Mr Matthews suggested that he get Mr Puckridge to look up what documents the department had. He claims that he telephoned the Australian Government Solicitor's Office and he could not contact Mr Foot. He spoke to a person whose name he could not recall. He complained about the insufficient time to answer the claimant's subpoena. He received advice: "The DPP and the AFP have also received subpoenas. Just locate whatever relevant documents you have in Canberra." Armed with this advice, the opponent told Mr Puckridge to try to find the documents. He also himself conducted a search in the Administrative Law Section but found nothing in respect of the claimant. The opponent's affidavit then proceeds: "13. At approximately 2.30 pm in the afternoon, Mr Puckridge informed me to the effect that an officer of the Bilateral and Domestic Legal Section had located a file called 'Ditfort - Extradition'. Puckridge handed me the file which I URJ DITFORT v CALCRAFT (Kirby P) 11 examined. The file contained several cables from May 1987 which were requests for assistance from Mr Foot of Attorney General's on behalf of DPP and responses. The requests and responses were sent or received by the Department of Foreign Affairs and the Australian Embassy in Bonn. I formed the opinion that those documents were not within the terms of the subpoena. 14. I contacted an officer of the AGS in Sydney whose name I cannot recall. I informed him of what we had found. I said to him words substantially to the effect: 'The Department wants an adjournment if an officer is required in Court in Sydney or if a further more detailed search of records is required." According to the opponent he then tried to contact Mr Brown of the office of the Federal Director of Public Prosecutions. He was unable to talk to Mr Brown but spoke to an officer who said: "The DPP has a subpoena. It has the cables that are available to the Court. The documents may be subject to a claim for legal professional privilege. The DPP may be seeking an adjournment." The opponent says that he then asked Mr Brown to telephone him and renewed his attempts to contact Mr Foot but without success. On Monday 1 June 1987 before the matter was listed before Finlay J, the opponent again attempted to contact Mr Foot, the Australian Government Solicitor's office and Mr Brown of the DPP's office. He was unable to contact any of them. He says that he later again tried to contact Mr Foot. Eventually he made contact and said to him: "The department has received a subpoena from Mr Ditfort on Friday 28 May. We can find no documents from Foreign [Affairs] caught by the subpoena. The only documents we can find are documents sent by you on behalf of DPP. We have had a short time to answer the subpoena; if anything else in needed to be done we would require more time. Could you arrange representation of the department by AGS. DPP is represented by Graham Brown who is seeking an adjournment in respect of his subpoena. Could you speak to Brown." The opponent says that Mr Foot agreed to arrange representation. Upon the version thus placed before the court by the opponent, he was blameless of any contempt of court. He was temporarily in the position that called upon him to be involved in the matter. He examined the file such as it was. He found nothing in the file which, in his view, answered the description of the documents in the subpoena. He asked for further time. He was assured that representation would be arranged, presumably for that purpose. He was not present when Miss Wild gave the answer which she did to Finlay J. Upon these bald facts, the charge of contempt against the opponent would have to be dismissed. However, the opponent's version of events was challenged by the claimant. The conflicting evidence It is now necessary to turn to the conflicting evidence. First, the claimant disputed the opponent's version that he had asked for a delay. Upon this issue, he called Mr Denis Foot. Mr Foot was asked, in effect, to confirm the evidence which he had given in the proceedings which the claimant had earlier brought against him. He did so. As in the previous proceedings, he produced a handwritten note. This is a file note made by him on 1 June 1987. It records a series of telephone conversations conducted between 9.30 am and 12.30 pm that day relating to the claimant's subpoena for documents. It is important to reproduce this file note: "Ditfort 1/6/87 12 UNREPORTED JUDGMENTS 0932 - call from Ben Kalcraft (sic) DFA - wants DLS to represent on subpoena matter - subpoena only received 27/5/87 from DFA Syd (on whom it was served). Search conducted Canberra - no docs caught by subpoena found. Spoke to Brown (DPP) - he can't do it. 0940 - spoke to HFW (Mr Herman Waltring, First Assistant Secretary, Attorney General's Department) - he gave me Kimmins name unavailable - Robert Greig 2377585 took call he to arrange representation. 0950 HFW - FGR Embassy also subpoenaed - claimed dip immunity - not answer. 0952 - Greig advised and agreed to represent FGR also - non returned. 1230 - Brown rang - court adjourned - looks good!" It is impossible, in my view, to discern from the evidence in the witness box, which of the two versions is closer to the truth - that of Mr Calcraft that he asked for further time or that of Mr Brown, simply that "no docs caught by subpoena found". I am sure that each witness was striving to present evidence to the best of his honest recollection. However, for several reasons, I prefer the version given by Mr Foot. First, it appears to be corroborated in the only contemporary note which exists of the conversation. The authenticity of that note was not challenged. It makes no mention of a request for further time to continue the search or that the search was incomplete. Secondly, what followed is scarcely consistent with any suggestion of seeking an adjournment. Miss Wild gave answer to the court precisely in the terms recorded by Mr Foot in his note. Thirdly, Mr Foot is himself a lawyer. It may be inferred that he would be aware of the difference between a nil return to a subpoena and the necessity to continue the search to discharge its obligations. Had there been any such suggestion of the latter to Mr Foot, I find it difficult to believe that he would not have conveyed such instructions to Miss Wild. It would have been obvious to him that to do so would not only be in conflict with the information and request provided by the opponent. It would be in breach of the obligation which the department had to make proper answer to the court. Accordingly, to the very high standard of proof required, I am satisfied that the opponent did not ask Mr Foot to seek further time on behalf of the department to answer the subpoena. I would not conclude that, by his evidence, the opponent was consciously seeking to deceive the court. He faces a serious charge of contempt. Mr Foot's contemporaneous note clearly indicates that the opponent made a complaint about the shortage of time for compliance ("subpoena only received 27/5/89 from DFA Syd'). When it was put to Mr Foot that the opponent had said that "if anything else had to be done more time would be required", he responded that he had no memory of that and would only be speculating. It is perfectly possible that the opponent, reconstructing events more than two years later, has convinced himself that he asked for further time, as he knows he should have, if proper answer could not be made to the subpoena within the time provided. Communication is, at the best of times, an uncertain thing. It is even possible that at the time, the opponent thought, by his complaints about the shortness of time, that he had sufficiently conveyed the need to ask for further time. However, I am fully satisfied that he did not. I prefer in this regard the evidence of Mr Foot. I accept that the opponent did not sufficiently make it clear to Mr Foot that the department needed more time properly to answer the subpoena. URJ DITFORT v CALCRAFT (Kirby P) 13 This, therefore, poses the question whether, as the person who initiated the instruction that led to Miss Wild's answer to the court, the opponent, as the statement of charge alleges, gave "instructions that were false or having no honest belief in the said instructions being true". As the case was finally presented, I do not believe that deliberate and wilful dishonesty to the court was made out. In fact, in the end, I did not take this to be the contention of the claimant. That contention was rather that, by indifference co the obligations to ensure that a proper answer was made to the subpoena and/or by plain misinterpretation of the scope of the subpoena, the opponent's instructions were, in the relevant sense, wilful and not a mere unintentional disobedience which would not justify punishment for contempt. See Mudginberri (above) 112-113. It was not unintentional disobedience The file of the Department of Foreign Affairs and Trade concerning Mr Ditfort, as produced to this Court, represents a different compilation in 1989 from the compilation which was handed to the opponent for his examination in mid-1987. The exact content of the file on Friday 28 May 1987 when the opponent inspected it has not been proved with a precision which would permit certainty. Unfortunately, the coversheet of the file does not contain a chronological record of the entries in it. Therefore, much of the time of this Court was taken in examining the documents now on the file, and the evidence of witnesses, in an attempt to reconstruct exactly what was presented to the opponent for decision upon the response to the subpoena. The opponent said that the file as presented to him was much smaller. This much is not in doubt. An examination of the cables now attached to the file shows that some of them bear the general reference of extradition files (1519/1/3) rather than the particular file number concerned specifically with the extradition of Mr Ditfort (1519/3/206). Furthermore, at least one of the cables now on the claimant's file bore an incorrect number (1519/3/204) which referred to the file of another fugitive. It is perfectly possible that the cable with that number was placed on file 204 and not 206 at the time that the Ditfort file was presented to the opponent. Furthermore, another cable bore the reference to a file dealing with the general subject of Australia's relations with the FGR in relation to an extradition treaty (821/2/6). Yet another cable was transmitted to the Attorney General's Department on 29 May 1987. It would not have come into the divisional office until after 1 June 1987. Mr Foot had no memory of seeing it. It seems reasonable to infer that it would not have been before the opponent on 28 May 1987. In addition to these remarks about particular cables, there are other indications in the evidence which could help to explain why further cables which are now on the claimant's file were not there on 28 May 1987. It was put that the claimant's name had been misspelt as "Ditford" instead of "Ditfort'. It seems unlikely that this would have caused confusion or mis-filing. Much more likely to cause this was the "ramshackle" nature of the department's then filing system. The department receives hundreds of cables each day. Some of them would relate to several subject matters. The assignment of the file number could be partially accidental or arbitrary. There was a system for checking the cables. This could be done by request to the department's communications centre. So much was proved by Mr Jonathan Brown. However, the opponent, whilst knowing of this facility, said in evidence: 14 UNREPORTED JUDGMENTS "Tt is a fairly massive exercise, you needed the permission of at least the Division Head, you were liable to incur the undying emnity (sic) of Communications. It took a matter of weeks and it was only done under extreme urgency. I can't ever recall it being done in my time in the Department." It was not done in the present case. I allow that the location of all documents caught by the subpoena issued at the request of the claimant would not have been a simple task. I acknowledge that the opponent considered that the department was in the nature of a "conduit" for the Attorney General's Department which had the primary responsibility for extraditions. I am prepared to concede that a number of the cables now in the file were probably not there when the file was presented to the opponent. I also take into consideration the entitlement of the opponent to respond, on behalf of the department, only in terms of the documents specifically asked. Making all of these allowances, it does seem clear that there were documents on the claimant's file that should have been presented to the court in a proper answer to the subpoena. The file was opened on the 28 March 1985. The first cable marked to the file bears the date 31 July 1985. The file was not closed until 18 February 1988. It had therefore been open for more than two years when the subpoena was received and the opponent was called upon to advise on the response to it. Although Heads of Mission of Australian Embassies and High Commissions overseas are not part of the Australian Public Service (being appointed by the Federal Executive Council) the missions themselves are certainly considered to be agencies of the department. Therefore, the subpoena issued to the department would embrace communications to the Embassy in Bonn and copy communications from that Embassy to the government of the FGR. I also consider, even on a narrow construction of the subpoena, that copies of the responses from the government of the FGR set out in cables from the mission in Bonn to the department in Canberra would be within the terms of the subpoena. There are a number of such cables. I will not burden these reasons further by reproducing them all. Suffice it to say that they bear the correct reference to the Ditfort file (1519/3/206). They are on the file now. A number of them were there when the first answer was made to the summons out of the Federal Court. It seems most unlikely that they found their way to the claimant's file between the answer to the subpoena instructed by the opponent on | June 1987 and the first answer on 2 February 1988 to the summons of the Federal Court to which Gummow J refers. It is the completely negative response given to the subpoena which is impossible to accept. That some of the cables caught by the subpoena now on the file were not there may be accepted. But that none of them was there - despite bearing the file number and a date after the opening of the file but before 1 June 1987 - strains credulity. It was the manifest unacceptability of the answer given which caused the protest of the claimant's counsel before Finlay J. In October 1987, Mr Fergus was able to find a file of papers concerning the claimant in connection with related proceedings in the Federal Court by Mr Guenter Zoeller. According to Mr Jonathan Brown it was relatively easy to locate the claimant's file because it was specifically referred to in the index of files which also listed both the general and particular files which would allow relatively ready access to a number of other files that could contain material relevant to the claimant. That index was in existence, according to Mr Brown, in May 1987. To say all this is to say little more than the opponent himself acknowledged in evidence. He agreed that certain of the cablegrams or documents referred to by the cablegrams, would "most likely be caught" by the subpoena. Although he URJ DITFORT v CALCRAFT (Kirby P) 15 could not remember seeing them on the file as presented to him, neither could he deny that they were there. The high probability, as it seems to me, is that a number of the cablegrams with correct numbers were on the file. In such circumstances, the instruction conveyed to Mr Foot that "no documents caught by subpoena found" demonstrates an unacceptably careless attitude to the response which should have been made to the subpoena. It is a response which, as I have found, the opponent must have known would lead to an announcement in those terms to the court. He was aware that the proceedings for which the documents had been subpoenaed were serious criminal proceedings involving the claimant. I am therefore of the view that, to this extent, the charge against the opponent has been made out. It is not a case of wilful and contumelious defiance of a subpoena of the Supreme Court. But neither is it a case of accidental and unintentional disobedience. The duty falling upon the opponent, in the position which he temporarily held, was one which required him to ensure that one of three steps was taken: 1. To produce to the court each and every document which fell within the terms of the subpoena; 2. To produce to the court those documents with a clear announcement that they were the only documents which could be produced in the time provided and a request, if necessary, for further time within which properly to answer the subpoena; or 3. The above with either (i) clear instruction to apply to the court for the setting aside of the subpoena as unduly wide or oppressive; or (ii) the foregoing with clear instructions to seek exemption from the obligation to produce the documents, or some of them, upon the ground of public interest immunity, legal professional privilege or otherwise. The one response which was not acceptable, there being documents which fell within the subpoena on the file, as I am prepared to hold, was the instruction which the opponent gave. It is that instruction which was communicated to the court. It resulted in an incorrect, misleading and surprising answer being given to the court upon which Finlay J proceeded to act. In these circumstances the charge brought by the claimant has been made out. It is therefore necessary to consider the appropriate penalty. Penalty for the contempt The Court has not heard submissions on penalty because it reserved its decision before the foregoing conclusion was reached. It is therefore appropriate to allow the parties to address the Court on that subject. However, I consider that it is appropriate in the circumstances to indicate my thinking at this stage. My present inclination would be to propose that the opponent be admonished and ordered to pay the claimant's costs of these proceedings. I do not presently consider that any further punishment is called for. I say this bearing in mind my conclusion that the contempt found was not deliberate or contumelious but rather seriously careless of the opponent's duty to the court to ensure that the answer given to the court by the department was honest and accurate. A number of considerations, most of them already mentioned, may be taken into account in considering the culpability of the opponent. These include the very short time which the claimant allowed, after its service in Sydney and before the hearing, for an answer to a subpoena, expressed in wide terms by a large department of state with its head office in Canberra. 16 UNREPORTED JUDGMENTS It does not appear that, in the events which occurred the failure to produce the documents caused any relevant prejudice to the claimant. Finlay J clearly disposed of the application for a stay on the basis that the legality, or otherwise, of the claimant's extradition to Australia from the FGR was not justiciable. This was a decision of law. No amount of evidence would appear to affect that decision. Also to be considered is the fact that the opponent had no particular knowledge of the claimant's case. He was acting in a position when the decision fell be made by him. He was bound to rely, to some extent, on material provided to him by other officers. On the other hand, he was also bound himself to ensure that the department's response was as honest and accurate as the law required and as time permitted. It seems plain that many of the cables now in the file were not there when the subpoena was received. But the opponent's efforts (i) to disclose all those which were on file and were caught by the subpoena; (ii) to to search for other files or other sources within the department of the documents requested; or (iii) to ensure that the court was aware of the circumscribed search - were plainly inadequate. A moment's reflection would have convinced the opponent of the high likelihood that a number of documents would be within the possession of the department - either in Australia or at its mission in Bonn - falling within the scope of the subpoena. He appears to have taken an unduly narrow view of the requirements of the subpoena. He also appears to have relied on the fact that other agencies of the Commonwealth might answer similar subpoenas, where the Department of Foreign Affairs and Trade did not. As aresult, in part, of the proceedings before Gummow J and in this Court new procedures have been adopted by the department in an endeavour to ensure that this "regrettable default", which "should never have happened", will not recur. It would be unjust to hold the opponent responsible for the unsatisfactory features of the departmental filing system. But that he did not strive diligently enough to ensure that a correct answer was made to the subpoena and proper information given to the court requires more than an expression of these opinions in these reasons. In my opinion, it requires that the opponent should be admonished and required to pay the claimant's costs. Subject, therefore, to affording the parties the opportunity to address the Court on the matter of penalty, those are the orders which I would presently propose. The only formal order which now needs to be made is that the further hearing of the summons stand over to a date to be fixed by the Registrar in consultation with the parties. Because the Court cannot sit as presently constituted after 30 January 1990, it will be necessary that the argument on penalty be heard on or before that date. Priestley JA The President's full and careful summary of the materials that were before the Court and his reasoning upon them, enable me to confine myself to saying that I agree with his factual conclusions on the materials, and with his statement of the contempt that was committed. The contempt resulted from large government departments functioning rather inefficiently between themselves, and from their officers not being alert to the duties and obligations which come into existence when a subpoena is served, even upon the proper officer of a Commonwealth Government department. The one heartening sign in the rather depressing parade of evidence before the Court in this case is that the case itself seems to have brought about the implementation of a set of rules which should lessen the chances of a debacle like URJ DITFORT v CALCRAFT (Hope AJA) 17 the present one happening again. If nothing else is achieved by this case, it should give notice to institutions likely to be served with subpoenas from time to time, of the obligations to the court created by service of a subpoena, and the fact that non compliance really can, as the form of subpoena says, but no-one seems to believe, lead to imprisonment for contempt. In the circumstances of the present case, as explained by the President, I agree with the orders he proposes. Hope AJA I agree that for the reasons given by Kirby P and Priestley JA the charge of contempt has been made out against the opponent. I also agree with the orders proposed. The proceedings stand over to be listed on or before Wednesday 30 January 1990 on a date suitable to the Court and to the parties for the consideration of any submissions which the parties wish to make on the subject of penalty. Counsel for Claimant: In Person Solicitors for Claimant: In Person Counsel for Opponent: P Hastings Solicitors for Opponent: Australian Government Solicitor