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. Evidence has been adduced on behalf of Ms Wild as well as on behalf of Mr Ditfort. Ms Wild has given evidence by affidavit upon which she has been cross-examined. In addition a solicitor from the Australian Government Solicitor's Office, Mr Orr, who had been involved in discussions about documents, was also cross-examined by Mr Ditfort. The effect of the evidence makes it clear that Ms Wild was not the "proper officer" of the Department of 2 UNREPORTED JUDGMENTS Foreign Affairs, assuming that there could be such a person. We will refer shortly to this latter question although, in the light of the evidence before the Court, it is not necessary finally to resolve it. In Rochfort v Trade Practices Commission 1982) 153 CLR 134 the Court had to consider the validity and effectiveness of a subpoena directed to the secretary of an unincorporated trade association. The secretary sought to claim that the subpoena was not effective against him since he did not have the relevant control, possession or custody of the documents required to be produced; they were in the possession, custody or control of the association of which he was secretary. The High Court held that the subpoena was effective as against the secretary, and he was bound to produce the documents. The Court affirmed that in respect of a corporation a proper course to adopt is to direct a subpoena to the corporation by its proper officer. It would seem that in that event, if the subpoena is not complied with and it is desired to bring proceedings because of that non-compliance, the proper defendant or opponent would be the corporation. However, the High Court said that was not an appropriate way to subpoena an unincorporated association. In that case it is necessary to deal with individuals, and to look to the position of the individual to whom the subpoena is directed to see whether, having regard to the nature of his duties, he had that possession, custody or control of the relevant documents which obliged him to produce them. That case did not deal with a Department of State of the Commonwealth, but it does not appear to be in issue that the Department of Foreign Affairs is not a corporation. It is merely a collection of people under the control ultimately of the Minister and subject to him of the Secretary of the Department. It may be, but no view is expressed on this matter, that the Secretary of the Department is a proper person to whom a subpoena to produce documents held by the Department should be addressed, he being the person who has sufficient possession, custody or control to require the documents to be located and to be produced to the Court from which the subpoena has been issued. Accordingly it may well be that the subject subpoena was inappropriately drawn. It should be said at once that Mr Ditfort's mistake in this regard, if the subpoena was incorrectly addressed, is readily understood. However, the matter upon which the Court bases its decision is a different matter. It is the evidence concerning the position of Ms Wild. It is not now in issue that she was not an officer of any kind of the Department of Foreign Affairs at the relevant time, or indeed at any time. She was an employee of the Australian Government Solicitor's Office and was asked to come to court to answer the subpoena. Her instructions were to tell the court that there were no documents held which fell within the description of the documents in the schedule to the subpoena. She so told the court. She has no clear recollection of what she told the court as to her employment but it is most probable that the description of her in the transcript of 1 June 1987 does not correctly record what she said. As has been previously indicated, the transcript describes her as being "of the Department of Foreign Affairs", although it does not record that she said so. The transcript is consistent with the subpoena having been called and MS Wild answering it and it being assumed that she was from the Department of Foreign Affairs. However, it was clear, and indeed it is conceded, that she did not come from the department but that she was a solicitor who was acting upon instructions which she accepted and which she believed at the time when she answered the subpoena. In those circumstances it is clear and indeed Mr Ditfort, who has been of considerable URJ GRANT A DITFORD v LYNETTE KJ WILD (Hope and Clarke and Meagher JJA) 3 assistance to this Court, has readily conceded that there were was no case of contempt against her. Accordingly the summons for contempt must be dismissed. A question has arisen as to costs. Mr Ditfort in this regard has asked that no order be made as to costs because of the background of the case, the circumstances in which the proceedings for contempt were brought, and the circumstances relating to the subpoena and its being answered in court. Ms Wild does not object to no order being made as to costs, and no objection is taken to the same position applying to the costs which were reserved when the matter was before this Court in October and November of last year. Accordingly the summons is dismissed as against Ms Wild, no order as to costs is made and that order extends to costs which have been reserved. 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 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 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 orders of the Court are accordingly that the summons is dismissed as against Ms Wild. No order for costs will be made, both in respect of the proceedings against Ms Wild and in respect of the reserved costs in the proceedings against Mr Hayden. Claimant appeared in person. Counsel for the Opponent: Mr JR Sackar QC and Mr J Agius Solicitors for the Opponent: Australian Government Solicitor