DITFORT v CALCRAFT (NO 2) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY JA and Hope AJA 30 January 1990, 2 February 1990 [1990] NSWCA 54 CONTEMPT — punishment — proper order — whether order of reprimand appropriate or required — whether findings of the Court disclosed in its reasons are sufficient — seriousness of contempt — legally qualified member of the Australian Public Service fails to ensure an adequate answer to a subpoena issued by the claimant in criminal proceedings in which he was involved — fails otherwise properly to comply with the subpoena or to seek further time for doing so — extenuating circumstances relating to the opponent and to the circumstances of the service of the subpoena — effective publicity of the finding of contempt upon the opponent — held: (1) In the circumstances no order of reprimand need be made, the reasons of the Court being sufficient reprimand to the opponent in the circumstances. New South Wales Bar Association v Thomas (No 2), Court of Appeal, unreported, 18 December 1989; (1989) NSWJB 222 referred to; (2) The opponent should be ordered to pay the claimant's costs assessed at $5, OOO. Cachia v Isaacs and Ors, Court of Appeal, unreported, 23 March 1989; (1989) NSWJB 46 referred to. Crimes (Taxation Offences) Act 1980 (Cth). Extradition (Foreign States) Act 1966 (Cth), s10(4). Kirby P, Priestley JA and Hope AJA. For the reasons given by the Court on 22 December 1989 the charge of contempt of court brought by the claimant against the opponent was held to have been made out. The Court concluded that Mr Calcraft was the source, within the Department of Foreign Affairs and Trade, of a response to a subpoena of the Supreme Court which, it was agreed, was incomplete and inaccurate. The Court held that although the case was not one of wilful and contumelious defiance of a subpoena, neither was it a case of accidental and unintentional disobedience. It is unnecessary to repeat the findings of the Court which are contained in the earlier Reasons for Judgment. In those reasons it was indicated that the Court was inclined to admonish Mr Calcraft and to order him to pay the claimant's costs of the proceedings. The Court was not inclined to consider that further punishment was called for in the circumstances of the case. However, as the Court had not been addressed on the matter of penalty the order made was that the proceedings stand over for argument on that issue. Written and oral argument has now been considered by the Court. It is appropriate therefore to proceed immediately to final orders. The claimant substantially adopted the position that punishment was a matter for the Court. He had seen his function as that of vindicating the orders of the Court and its authority. It was for the Court to determine what, if any, level of punishment was required for that purpose. By the same token, the claimant suggested that, at the least, the course foreshadowed by the Court was appropriate and that the matter should be disposed of by a formal order of admonishment or reprimand. The seriousness of the contempt found In order to ensure a proper appreciation of the level of the seriousness of the opponent's found contempt, the claimant urged that the Court should approach the matter bearing in mind that, if that contempt were not deliberate (as the Court 2 UNREPORTED JUDGMENTS had found) it was at least very close to wilful, in the sense of exhibiting a reckless disregard for the basic duties of obedience to subpoenas. The opponent would have been aware of those duties because he was a lawyer. The form of the subpoena itself spelt out the risk of imprisonment for non-compliance with the subpoena. The claimant also sought to contest the suggestion in the reasons for judgment of Kirby P (with which the other members of the Court agreed) that, in the events which had occurred, the failure of the opponent to produce the documents referred to in the subpoena had not caused any relevant prejudice to the claimant. This conclusion had been reached because: "Finlay J clearly disposed of the application for a stay on the basis that the legality, or otherwise, of the claimant's extradition to Australia from the (Federal Republic of Germany) was not justifiable. This was a decision of law. No amount of evidence would appear to affect that decision." The claimant pointed out that Finlay J had proceeded upon the basis that the extradition sought was claimed pursuant to an exercise by the Federal authorities on behalf of Australia of the Crown's prerogative. By reference to one of the documents which the claimant said ought to have been produced in answer to the subpoena, the claimant asserted that the Federal Attorney General had actually been asked by his Department to request the claimant's extradition pursuant to the Extradition (Foreign States) Act 1966 (Cth). At the relevant time, as is common ground, the Federal Republic of Germany had not been brought into the scheme of that Act by virtue of regulation made pursuant to s10(4) of the Act. Had Finlay J been alerted to the erroneous basis upon which extradition had been sought, by the production of the documents referred to in the subpoena, this would have called his Honour's attention to the "flaw" in the extradition request. As for other reasons the extradition could not be lawfully sought pursuant to an exercise of the Crown prerogative, it would have disclosed the illegality of the extradition. It would thus have armed the claimant with a basis for supporting his contention that his extradition to Australia was an abuse of process. It would therefore have resulted in a permanent stay of the criminal proceedings. In that way, the claimant would have been spared the trial which he was obliged to face and the conviction and sentence he suffered under the Crimes (Taxation Offences) Act 1980. Thus ran the arguments of the claimant. There are many answers to these arguments so far as the present issues before the Court are concerned. First, it is clear that Finlay J was aware that the extradition legislation did not apply to the Federal Republic of Germany at the time of the request for the claimant's extradition. As that was indeed so, it must equally have been clear to Finlay J that the claimant's extradition was to be justified, if at all, as an exercise of the Crown's prerogative and not otherwise. This posed precisely the question which Finlay J proceeded to answer, namely whether such a claim was justiciable in an application for a stay for abuse of process such as the claimant had brought. His Honour's decision on that question is a decision of law. No amount of evidence would have affected it. We do not overlook the practical consideration that evidence could have been relevant to providing colour to the claimant's assertion that his extradition was unfair and illegal. It might have lent support to various arguments addressed to the merits. The documents ought (as is now acknowledged) to have been produced to the Court. But in the way Finlay J approached the matter, the absence of the documents does not appear to have affected in the slightest his ruling on the justiciability of the extradition. URJ DITFORT v CALCRAFT (NO 2) (Kirby P, Priestley JA and Hope AJA) 3 Secondly, when the documents are examined, it is clear that, although the minute sent to the Attorney General referred (apparently erroneously) to the Extradition (Foreign States) Act 1966, the actual request for extradition submitted with the minute and signed by the Federal Attorney General made no such reference. To that extent, the basis upon which Australia sought the extradition of the claimant was not, in its terms, so far at least as the Federal Republic of Germany was concerned, based erroneously upon the inapplicable statute. Not being based upon the statute, it could only be supported as a request by one foreign state to another. In our law, that basis must be found and justified in an exercise of the Crown's prerogative. Thirdly, the claimant has challenged his conviction and sentence. He has done this by way of appeal to the Court of Criminal Appeal. That appeal awaits hearing, pending the outcome of these proceedings. The appeal raises grounds of objection to the conviction and sentence, quite apart from the alleged error of Finlay J in the preliminary motion for a stay. No ultimate injustice is done to the claimant by the loss of such arguments as could have arisen from the documents had they been produced to Finlay J because those issues remain open in the claimant's appeal to the Court of Criminal Appeal. It is understood that that appeal will be heard later in the year. The claimant urged this Court, in effect, to use the vehicle of the contempt proceedings to dispose of the alleged error of Finlay J. But the contempt proceedings would be an entirely inappropriate and premature vehicle for that purpose. They would be especially inappropriate because of their criminal nature and the effect of their outcome on the opponent. They are also inappropriate because the claimant has many other objections to the conduct of his trial. It is appropriate that they should be disposed of in the one hearing. This is not that hearing. Fourthly, it is essential to remember that the issue now before the Court is the appropriate punishment of Mr Calcraft for the contempt found. It is inappropriate in fixing that punishment to burden Mr Calcraft with all of the consequences, however remote, of the conduct of the trial before Finlay J. It is especially inappropriate because there are other legal proceedings in which those consequences can, and may, be remedied. The claimant's repeated assertion that the documents must have altered the approach of Finlay J had they been produced is not made out. This conclusion merely restates the President's observations in his reasons of 22 December 1989. They remain valid and provide the context in which the seriousness of what occurred is to be judged. Suggested matters of mitigation Against the arguments of the claimant, a number of submissions were put on behalf of Mr Calcraft. It was suggested, for example, that although he was a legal practitioner and had held various posts calling for legal skills, there should not be attributed to him the knowledge of the obligation to comply with the subpoena enjoyed by experienced judges and barristers. But every lawyer either knows, or must be treated as knowing, that obligation. It is contained in the form of subpoena itself. And this Court's decision, disposing of the present charge, reinforces the Court's determination to ensure that legal practitioners especially, where officers of the court, must attend carefully and faithfully to the duty of responding to a subpoena or taking the other steps explained in the earlier reasons. It was also pointed out, as is true, that Mr Calcraft had little experience of extradition. On the other hand, at the relevant time he was acting in a position of responsibility where his decisions and actions concerning extraditions could 4 UNREPORTED JUDGMENTS affect the rights and liberty of others. This imposed upon him commensurate responsibilities as he would have realised. An affidavit was filed by Mr Calcraft setting out his past and present responsibilities, the publicity given to the finding of contempt and the serious consequence of the finding on his future career. Attached to that affidavit, received without objection, was a reference by the Secretary of the Senate Standing Committee on Regulations and Ordinances, Mr David Creed. It deposes to the opinion that: " Mr Calcraft is an honest, reliable and dedicated public servant. He works hard and is determined to produce the highest possible standard of work. He is a courteous, considerate person well liked by persons with whom he works. In the six years I have known Mr Calcraft he has always been a conscientious officer and I am aware of just how importantly he regards his legal responsibilities and the deep affect the decision of the Court has had upon him". Mr Calcraft's position as Secretary of the Senate Standing Committee for the Scrutiny of Bills is one of considerable importance and _ responsibility. Accordingly, the publicity given to the Court's finding of contempt would already have involved, necessarily, embarrassment and hurt to him. Amongst other places, the conviction was reported in the Canberra Times. Mr Calcraft deposes that: "T believe that as a result of the decision of the Court receiving newspaper publicity my position with the Scrutiny of Bills Committee is in jeopardy." Mr Calcraft reports a supervising officer as stating: "You may be advised to look for another job if you want to continue your service." The Court cannot control such publicity or individual reactions to it. In the material placed before the Court, both on this and on the earlier occasion, no doubt is cast upon the general sense of responsibility of Mr Calcraft or his adherence to his legal obligations. As well, there are the extenuating circumstances previously referred to. The filing system of the Department of Foreign Affairs and Trade was, at the relevant time, seriously defective. The Court has been assured that the defects have been repaired as a result of the contempt proceedings brought by Mr Ditfort. His subpoena was received very shortly before the return date. It was addressed to a large department of state with a very substantial registry, a huge flow of correspondence and outlying agencies in all parts of the world. Mr Calcraft was acting in the relevant position when the request was received by him. Whilst his response to the subpoena was inadequate, as the Court has found, the defaults must be weighed in the context in which they occurred and not judged in isolation. The appropriate penalty In all of the circumstances, the Court is of the opinion that it is not necessary or appropriate to make a formal order of admonishment or reprimand. Cf New South Wales Bar Association v Thomas (No 2), Court of Appeal, unreported 18 December 1989; (1989) NSWJB 222. See Priestley JA (with whom Hope AJA agreed) at 2-3. In saying this we are not deciding that the Court lacks power so to order (as was at one stage urged on Mr Calcraft's behalf). Courts have frequently reprimanded those found guilty of contempt. In whatever form it may be couched, the inherent power of the Court amply sustains such a reprimand. We do not believe that stating our conclusion as a formal order of reprimand would in this case serve any purpose necessary for the administration of justice. The reasons for judgment of the Court will stand as their own reprimand for the URJ DITFORT v CALCRAFT (NO 2) (Kirby P, Priestley JA and Hope AJA) 5 contempt resulting from Mr Calcraft's inadequate and inappropriate response to the subpoena. The purpose of the proceedings is the defence of the administration of justice. That purpose is adequately achieved by the earlier publication of the Court's reasons and by the order for the payment of the claimant's costs. After the earlier proceedings, the parties had some discussion about the payment of costs. The extent to which an unrepresented litigant may recover costs of proceedings in the Court was considered in the recent decision of the Court in Cachia v Isaacs, Court of Appeal, unreported, 23 March 1989; (1989) NSWJB 46. The claimant handed the Court a list of his costs amounting to $8,420. Counsel for the opponent acknowledged that many of the items in the list would be recoverable and were uncontroversial. These include filing fees ($500), witnesses expenses ($780), photocopying costs ($462) and so on. More contentious was an amount claimed of $2,500 for legal advice received by Mr Ditfort in the preparation of the proceedings, although it was agreed for the opponent that if such advice was had, it could be recovered. The Court will assume this without deciding it. The claimant sought $3,500 being $500 for each of the seven days that he was in Court and to offset time lost in the preparation of the case. As was pointed out in Cachia, the amount that may be recovered by a litigant in person for his own costs of attending court as party, witness and advocate is a matter of controversy. It is desirable that these proceedings should be brought to a close. It is undesirable that they should peter out in a dilatory procedure of taxation of costs. It appears possible, from what the Court was told, that Mr Calcraft may be indemnified for the whole or part of the costs involved although this would depend upon an application by him and is not assured. It is appropriate to allow a little time for such an application to be made. The opponent Ben Calcraft pay the claimant Grant Anthony Ditfort his costs of and incidental to the summons, which costs are assessed by the Court to be $5,000 and are to be paid within 60 days of order. Counsel for the Claimant: In person Solicitors for the Claimant: In person Counsel for the Opponent: P Hastings Solicitors for the Opponent: Australian Government Solicitor