DITFORT v KATZ [1991] NSWCA 80

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

SAMUELS, MAHONEY and PRIESTLEY JJA 8 July 1991, 8 July 1991 [1991] NSWCA 80

CONTEMPT OF COURT — ABUSE OF PROCESS CONTEMPT OF COURT — summons annexing statement of charge that barrister made a statement to a court "which was false" motion for summary dismissal of summons on ground that statement of charge did not allege that barrister made the submission in the course of argument "otherwise than honestly" — held (1) that this was an allegation of abuse of process constituting contempt in which it was necessary for the claimant to allege and prove that the statement impugned was made with knowledge of its falsity: Linwood v Andrews and Moore (1888) 58 LT 612, R v Weisz, Ex parte MacDonald (1951) 2 KB 611, Ditfort v Brown (1990) 19 NSWLR 49 and Borrie and Lowe's Law of Contempt, 2nd ed (1983) at 308 referred to; (2) that the general rule that intention to interfere with the due administration of justice was not a necessary ingredient in the proof of contempt was not applicable; (c) that the statement of charge incapable of sustaining a contempt and the summons would be dismissed.

Samuels JA This matter before the court today is the current proceeding in a series of proceedings which have arisen out of the extradition from the Federal Republic of Germany to Australia of Mr Grant Ditfort, and his subsequent conviction in Australia upon certain criminal charges.

The details of the facts may be found in a number of reports, and in unreported judgments of this court also, and I need not recapitulate them.

This matter arises in this way: On 28 February 1991 Mr Ditfort, the claimant, filed a summons charging one Leslie Katz, a barrister of this court, with contempt. The statement of charge annexed to the summons read:

"The claimant, Grant Anthony Ditfort, charges that on | June 1987 Leslie Katz did commit contempt of the Supreme Court of New South Wales in that as counsel appearing for the Commonwealth Director of Public Prosecutions he did make a statement to the court which was false, thereby misleading the court to the detriment and prejudice of the claimant and thereby was misfeasant of his duties to the court." The summons was supported by various affidavits filed over a period, and ultimately in June of this year Mr Katz, the opponent, filed a motion in which he sought that the summons be summarily dismissed. The basis upon which that relief was sought was set out in a letter, and it has been repeated in the claimant's written submissions and was to this effect: