GRANT A DITFORD v LYNETTE KJ WILD [1989] NSWCA 62

GRANT A DITFORD v LYNETTE KJ WILD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, CLARKE and MEAGHER JJA 22 February 1989, 22 February 1989

[1989] NSWCA 62

Contempt — Subpoena to produce document addressed to "The Proper Officer, Department of Foreign Affairs" — Subpoena answered by officer of Australian Government Solicitor Office upon instructions from senior officer in that office — Court informed that there were no documents falling within the scope of the subpoena — In fact there were documents falling within that scope — proceedings for contempt brought against officer answering subpoena in court — HELD no evidence of contempt by her. Subpoena duces tecum — Commonwealth Department — discussion as to correct method of addressing subpoena. ORDERS (1) Summons for contempt dismissed as against Ms LKJ Wild; (2) No order for costs both in respect of proceedings against Ms Wild and in respect of the reserved costs in the proceedings against Mr Hayden.

Hope and Clarke and Meagher JJA In this matter the opponent brought proceedings for contempt against the claimant, Ms Wild. The alleged contempt occurred in these circumstances. In proceedings in the Criminal Division in the Supreme Court the opponent, Mr Ditfort, served a subpoena directed to "The Proper Officer, Department of Foreign Affairs, 100 William Street, Sydney". A number of documents were described in the schedule to the subpoena.

When the matter came on for hearing on 1 June 1987 before Finlay J a call was made on the subpoena and the transcript of the proceedings records as follows:

"Miss L Wild of the 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."

It appeared later that there were documents that fell within the scope of the subpoena and which had they been available should have been produced, assuming that a proper subpoena had been served calling for their production. The contempt alleged by Mr Ditford was the disobedience of the subpoena by failing to produce documents in court which fell within the description in the schedule to the subpoena. Proceedings for contempt were brought both against William George Hayden, who was the Minister for Foreign Affairs at the time, and Ms Wild. Mr Hayden and Ms Wild thereupon brought proceedings for the dismissal of the summons or its permanent stay. On 11 November 1988 the Court dismissed the summons in so far as it was brought against Mr Hayden. The hearing of the remainder of the notice of motion was stood over to a date to be fixed, and is today before the court.