DITFORT v FOOT [1989] NSWCA 65

DITFORT v FOOT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and MEAGHER JJA 6 July 1989, 21 July 1989 [1989] NSWCA 65

Proceeding for Contempt of Court — Charge that Opponent conveyed instructions for answer of subpoena to produce documents "which he knew to be false" — Not proved that Opponent knew instructions to be false — Reference to duty of lawyer conveying instructions to solicitor who is to attend court to answer subpoena to inquire as to accuracy of instructions conveyed. ORDERS Proceeding dismissed; no order as to costs

Mahoney JA In this proceeding Grant Anthony Ditfort seeks an order that the opponent DenisJohn Foot be punished for contempt of court. The contempt of court charged is that on | June 1987 Mr Foot committed contempt "by conveying instructions, which he knew to be false, in connection with the answer of a subpoena issued out of" the court and returnable on that day.

The circumstances in which the contempt is alleged to have been committed are generalLy as follows. Mr Ditfort had been returned from the Federal Republic of Germany to Australia in relation to charges concerning, to put the matter compendiously, alleged taxation offences. It was Mr Ditfort's contention that he had been wrongfully brought back to Australia. On 1 June 1987 there was before Finlay J, sitting in the Criminal Division of the Court, a proceeding in a matter entitled Regina v Ditfort and Ginges. It was, as the court has been informed then proposed to take objection to the charges then brought against, inter alia, Mr Ditfort. In reply to that objection, the Crown proposed to submit that the circumstances of Mr Ditfort's return to Australia were not, at least in the relevant respects, open to examination by the court.

The solicitors for Mr Ditfort had issued a subpoena directed to: "The Proper Officer, Department of Foreign Affairs, 100 William Street, Sydney NSW". The subpoena ordered the production of: