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: "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 in support of or arising out of the Australian Government's request dated 8th 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 in response to or arising out of the Australian Government's request dated 8th July 1985 that Grant Anthony Ditfort be returned to Australia to be dealt with according to law." The subpoena was returnable on 1 June 1987. Shortly after the proceeding commenced before Finlay Ja call was made, inter alia, upon that subpoena. The transcript contains a notation as follows: "(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)". 2 UNREPORTED JUDGMENTS The present summons has proceeded upon the basis that the complaint made against Mr Foot is, in substance, that he conveyed to Miss Wild the information on which she answered the subpoena and that he knew that answer to be false. It is conceded that the information which Miss Wild conveyed to the court in answer to the subpoena was in fact incorrect. There were documents which were within the literal terms of the subpoena and they were not produced. The question at issue in the proceeding has been whether Mr Foot conveyed instructions to Miss Wild knowing them to be false. The matter has proceeded in a somewhat unusual way. It is relevantly of a criminal nature: see Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd 160 CLR 98 at 106 et seq. However, Mr Hastings, who has appeared for Mr Foot on the instructions of the Australian Government Solicitor, informed Mr Ditfort that affidavits would be prepared by Mr Foot and by Mr Jonathon Brown, an officer of the Department of Foreign Affairs and Trade, that those affidavits would be tendered in evidence, and that the deponents would be available for cross examination. The affidavits were read and the witnesses were cross examined by Mr Ditfort. Mr Foot was an officer of the Australian Attorney General's Department from 25 May 1982 until 7 March 1989. He now acts on contract for that Department. On 1 June 1987 and, presumably, for some little time before that date, he was a Senior Legal Officer in the International Branch of the Criminal Law and Enforcement Division of the Central Office of the Attorney General's Department in Canberra. The proceedings involved in the prosecution of Mr Ditfort were being conducted by the Director of Public Prosecutions. A hearing of it had been fixed for 1 June 1987. In preparation for those proceedings, Mr Foot had been involved in communications to and from the Australian Embassy in Bonn, Federal Republic of Germany. He had drafted or seen communications which had taken place between 7 May 1987 and 29 May 1987. Those communications had been concerned, inter alia, with documents which had passed between Australia and the Federal Republic of Germany relating to the proceedings taken to secure the return of Mr Ditfort to Australia. He was, therefore, acquainted with the fact that there were documents which were, or apparently were, within the terms of the subpoena. However, he was not involved in the criminal proceedings against Mr Ditfort in the sense that they were being conducted not by the Attorney General's Department but by the Director of Public Prosecutions. The circumstances in which Mr Foot conveyed instructions to Miss Wild and in which she informed the court as she did were stated by Mr Foot as follows. At approximately 9.32 o'clock in the morning of | June 1987 Mr Foot received, or at least took, a telephone call in Canberra from a Mr Ben Calcraft of the Department of Foreign Affairs. Mr Calcraft told him that "we" would like the Director of Legal Services, ie the Sydney office of the Australian Government Solicitor, "to represent us regarding a subpoena". The subpoena was that here in question. Mr Calcraft is alleged to have said: "Searches have been made in Canberra but there are no documents caught by the subpoena. The proceedings in which the subpoena is issued are against Grant Anthony Ditfort and are believed to be conducted by the Director of Public Prosecutions. Mr Brown of the DPP is involved in the matter." Mr Foot enquired of Mr Brown but was informed that he could not appear to answer the subpoena. Mr Foot then, having made some enquiries, spoke to a Mr Robert Greig of the office of the Australian Government Solicitor in Sydney. Mr Foot said: URJ DITFORT v FOOT (Mahoney JA) 3 "The Department of Foreign Affairs has received a subpoena returnable in the Supreme Court of New South Wales at 10 am this morning to produce documents in proceedings relating to Grant Anthony Ditfort. Our instructions are that searches have been conducted in Canberra but there are no documents caught by the subpoena. Can you arrange for an appearance?" It was as the result of this conversation that Miss Wild answered the subpoena as she did. Mr Foot has said, in evidence, before this Court that there were "no circumstances causing me to doubt the correctness of the instructions to which I have referred" and that the "circumstances were urgent". He said that he knew that Mr Calcraft "worked in the Legal Branch of the Department of Foreign Affairs and I accepted that he had authority to issue instructions in relation to the subpoena". He said that at no time during that day was he informed of the precise terms of the subpoena nor did he see a copy of it. He said: "It did not occur to me that the cables sent or received by the Attorney General's Department to which reference is made in paragraph 48 of the affidavit of the claimant sworn herein on 20 March 1989 may have been within the terms of the subpoena to the Department of Foreign Affairs. As an officer of the Attorney General's Department I accepted that the subpoena was addressed to the Department of Foreign Affairs and, as such, confined to documents in the possession of that Department." Mr Ditfort sought, by cross-examination and otherwise, to establish that Mr Foot knew that the instructions he was given by Mr Calcraft and which he relayed to Miss Wild were incorrect. It has been conceded by Mr Hastings for Mr Foot, that Mr Calcraft's instructions were incorrect: there were, as I have said, documents within the terms of the subpoena. He has accepted that Mr Foot had been aware of the existence of the communications made in May 1987 to which I have referred and I do not think he contests - at least, it is clear - that had Mr Foot known of the terms of the subpoena, the inference would be open that he would have adverted or did advert to the communications to which I have referred and consequently that he knew there were documents to be produced in answer to the subpoena. But, his submission has suggested, the proper conclusion of fact is that Mr Foot did not know of the terms of the subpoena, that he did not in fact advert to the possible significance of those communications in relation to it, and that consequently he did not convey instructions which he knew to be false. In my opinion, Mr Hastings' submission in this regard should be accepted. Mr Foot gave evidence, in chief and in cross-examination. I accept that he endeavoured to give true and accurate evidence. I accept that, on the morning of 1 June 1987, he accepted as correct the information given to him by Mr Calcraft, that he made no enquiry as to the terms of the subpoena or what had been done to satisfy it, and that he conveyed that information accordingly. On that basis, the charge made against him has not been made out. The allegation that he conveyed instructions that he knew to be false is incorrect. Reference has been made in the proceeding to the duty of a lawyer asked to give instructions to a person who, on behalf of one who has been subpoenaed to produce documents, is to convey those instructions to the court. I do not think it necessary to examine the obligations of such a person, within the context of government or otherwise. What he should do will depend upon or at least be affected by the circumstances. A solicitor who takes the responsibility of instructing a person to appear in court to answer a subpoena and who instructs 4 UNREPORTED JUDGMENTS that person what is to be said has some responsibility in respect of the instructions given to that person. I do not mean by this that where a lawyer acting in that role has received instructions from his client that there is no document within the subpoena, it is the obligation of the solicitor, eg, formally to search the client's records. In some circumstances, something less than a search may be required: a solicitor is, I think, ordinarily not (as Mr Foot described his role) "merely a post box". However, I do not think it necessary for present purposes to attempt more closely to define those obligations, generally or in this case. The court has invited submissions as to the costs of the present proceeding. Ordinarily the costs should be borne by Mr Ditfort. Whether Mr Ditfort was significantly prejudiced by the return made upon the subpoena and the extent of such prejudice is not clear. And insofar as he suffered prejudice his remedy does not lie against Mr Foot. Mr Hastings has conceded, on behalf of his client, the unsatisfactory nature of what took place. As far as the evidence before the court indicates, there has been no precise identification of where the fault should be seen to lie. No doubt it lies with someone for whom the Australian Government is responsible. But it would not be proper to order that Mr Foot pay the costs in an endeavour to procure that it bear the burden of them. In my opinion, the costs should follow the event of the proceeding. Clarke JA I agree with Mahoney JA that the summons should be dismissed for the reasons which he has given. Unfortunately I am unable to agree with the costs order he proposes. The opponent at the relevant time worked in the Canberra Office of the Australian Government Solicitor and was admitted as a barrister in the State of New South Wales. He accepted instructions from Mr Calcraft of the Department of Foreign Affairs to act on its behalf to answer a subpoena to produce documents which had been issued by the Court and served upon that department. He did not know the contents of the subpoena. He did not inquire as to the contents. He simply accepted the instruction that the Department of Foreign Affairs had no documents which fell within the categories of documents described in the subpoena. As a result of his acceptance of instructions and his failure to take any steps to ensure that Mr Calcraft was correct when he said the Department had no documents within its possession that fell within the terms of the subpoena he made arrangements which led to the court being informed, quite erroneously, by a member of the staff of the Australian Government Solicitor situated in Sydney that the Department of Foreign Affairs had no documents to produce in answer to the subpoena. While I would agree with Mahoney JA that in the present case the occasion does not arise to explore the extent of the obligations of a legal practitioner who undertakes to answer a subpoena on behalf of his client I wish to make it quite plain that, whatever the extent of those obligations, in my opinion the opponent acted in dereliction of his duty. He said in evidence that he was a mere "postbox". I accept that he believed that that was his role. But that belief indicates that the opponent undertook an obligation without the slightest understanding of the responsibilities accompanying that undertaking. If he had merely asked Calcraft to read to him the contents of the subpoena he would, or should, immediately have become aware that the Department of Foreign Affairs had documents which fell within its terms. Instead he did nothing with the result that the court was misled. URJ DITFORT v FOOT (Meagher JA) 5 A subpoena to produce documents is, in effect, an order of the court calling upon the recipient to attend at court and to produce any documents within his possession which fall within the terms of the subpoena. In more recent years a practice has developed whereby the legal representative of the recipient of the subpoena has, on occasions, attended at court and answered it on his behalf. This practice has been tolerated by the courts primarily because of the trust reposed in legal practitioners and the corresponding perception that they will take appropriate steps to ensure that the court is not misled. If practitioners do not realise that in answering a subpoena they undertake, at the very least, an obligation to check the accuracy of their instructions then the courts would be unable to rely on the information furnished by practitioners and would require the attendance of the recipient in each case. In saying this I am putting to one side those cases in which documents may be produced in answer to a subpoena to the court office under the Supreme Court Rules. Those instances yiven rise to special considerations but even in those cases the person who required the issue of the subpoena would be able to test the correctness of the answer in the usual manner. In 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 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 significant prejudice to the claimant. In these circumstances I would make no order as to the costs of the present proceedings. Meagher JA This matter involves a subpoena issued by Mr. Ditfort on the Commonwealth of Australia. The subpoena was valid in form. It was addressed to "The Proper Officer, Department of Foreign Affairs, 100 William Street, Sydney, NSW. It was properly served. A Miss Wild answered it, informing the Court that there were no documents which fell within its scope. That answer was false, as such documents did exist. The result was that the Court was deceived and Mr Ditfort's rights were prejudiced; perhaps severely prejudiced, although the evidence does not permit a finding on this aspect of the matter. The result reflects very little credit on the Commonwealth of Australia. Mr Ditfort understandably feels aggrieved and has sought to charge Mr Foot, then an officer of the Attorney-General's Department, with contempt. 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. 6 UNREPORTED JUDGMENTS To agree with Mahoney JA (whose judgement I have had the benefit of reading in draft) that the charge of contempt must be dismissed. In my view there should be no order as to costs.