SECRETARY, COMMONWEALTH ATTORNEY-GENERAL'S DEPARTMENT v DITFORT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 13 November 1989 [1989] NSWCA 182 Kirby P The Secretary of the Attorney-General's Department of the Commonwealthof Australia moves the Court for an order that a subpoena addressed to him be set aside. He seeks costs and other relief. The proceedings referred to in the subpoena are listed to come before the Court tomorrow and the following day, 14 and 15 November 1989. Those proceedings involve a charge by Grant Anthony Ditfort of contempt of court on the part of Graham Vincent Brown arising out of an alleged contempt of the Supreme Court by Mr Brown, an officer of the Commonwealth, connected with the answer made to an earlier subpoena issued out of the Court. The basis of the motion is primarily that the subpoena addressed to the Secretary of the Attorney-General's Department is, on its face, irrelevant to the issues which are before the Court on the charge of contempt brought against Mr Brown. The charge of contempt has a long background. This is referred to in ancillary proceedings involving a like application by the Federal Director for Public Prosecutions and in certain earlier proceedings between the present parties. I am dealing with the matter in the Motions List of the Court and pursuant to s46 of the Supreme Court Act 1970. It is suggested that a comparison of documents sought in the schedule to the subpoena under challenge and the answers given to the Supreme Court which are said to give rise to Mr Brown's contempt, are so dissimilar as to be "chalk and cheese". It may be that it will so appear to the Court when it sits to hear the proceedings concerning Mr Brown. However, the matter is of some complexity. Iam not inclined, on my present inadequate understanding of the issues involved, to grant the relief that is sought in the motion upon the basis relied upon. However, a subsidiary question arises. This is whether the person who presently holds the office of Secretary of the Attorney-General's Department, Mr Alan Rose, should be excused from attending court to answer the subpoena in person. According to an affidavit of Mr Robert Orr sworn 10 November and read to the Court, Mr Rose was appointed Secretary of the Attorney-General's Department on 4 March 1989. This was some time after the events which give rise to the charge of contempt. That charge states that Mr Brown's contempt occurred on | June 1987. It is therefore open to inference that Mr Rose would have no personal knowledge of the circumstances of the matters relevant to the alleged contempt and no personal responsibility for it. On the other hand, as in the earlier proceedings today involving the Federal Director of Public Prosecutions, Mr Weinberg, it is desirable that there should be before the Court a person who, with authority and knowledge, can answer to the Court questions properly put to him or her by the parties or the Court, including questions concerning the adequacy of the response to the subpoena should such questions arise. 2 UNREPORTED JUDGMENTS In the light of the history of the matter to which I have briefly referred in Mr Weinberg's case it is undesirable that such questions should be left in the air. I am told by counsel for the Secretary of the Department that Mr Ian Clark, an officer of the Department, can answer the subpoena addressed to the Secretary with knowledge of the documents in the possession of the Department and with authority on behalf of the Secretary of the Department to whom the subpoena was issued. Accordingly, it is appropriate to relieve Mr Alan Rose personally of the obligation to attend before the Court tomorrow, 14 November 1989. I will do so on the assurance of counsel that Mr Clark will attend court to answer to the subpoena if the court rules that the documents referred to in it are relevant to the issues before the Court. Whether Mr Rose will be required to attend Court on 15 November 1989 or at another time may be the subject of an order by the Court as it will be constituted tomorrow to hear the charge of contempt against Mr Brown. The motion is therefore dismissed to the extent that it seeks the setting aside of the subpoena. However, the additional order which I make is that Mr Rose be relieved from any obligation to attend before the Court tomorrow, 14 November 1989. The costs of this motion will be reserved to be dealt with by the Court disposing of the relevant summons for contempt.