New South Wales Supreme Court CITATION : Evans v Citibank Ltd [2000] NSWSC 1017 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4999/99 HEARING DATE(S) : 19 October 2000 JUDGMENT DATE : 19 October 2000 Robb Evans of Robb Evans & Associates (P) Citibank Limited (D1) Benford Limited (D2) JK Publications Inc (D3) PARTIES : MJD Service Corp (D4) TAL Services Inc (D5) Kenneth Taves (D6) Teresa Taves (D7) European Bank Limited (D8) JUDGMENT OF : Hamilton J A S Martin SC & C C Hodgekiss (P) COUNSEL : No appearances (D2 - D7) R Webb (D8 & mentions D1) Deacons (P) SOLICITORS : Dibbs Crowther & Osborne (D1) No representation (D2 - D7) Baker & McKenzie (D8) CATCHWORDS : PROCEDURE [701] - Contempt, attachment and sequestration - Power of courts to punish for contempt - Supreme Court - Generally - Purging contempt - Principles. Harman v Secretary of State for the Home Department [1983] 1 AC 280 CASES CITED : Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 United Telecasters Sydney Limited v Hardy, (1991) 23 NSWLR 323 DECISION : Contempt purged. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J THURSDAY, 19 OCTOBER 2000 4999/99 ROBB EVANS v CITIBANK LIMITED & ORS JUDGMENT HIS HONOUR: 1 In this matter it unfortunately appears that the applicant, the plaintiff in the proceedings, Mr Douglas Edmund Raftesath, an employed solicitor of Mr Timothy George Peken, the plaintiff's solicitor, and Mr C C Hodgekiss of counsel, have been guilty of a contempt of court. The application is for that contempt to be purged. The contempt was in the handing to representatives of the New South Wales Crime Commission of four affidavits filed in the proceedings, three on behalf of the eighth defendant and one on behalf of the first defendant, but not read in Court. Both these defendants have now appeared and they offer nothing in opposition to the making of an order purging the contempt if the Court be minded to make such an order. 2 The case is illustrative of the care and concentration needed to be applied by legal representatives, often working under the heaviest pressures, to the rules whereby there is an implied undertaking by parties that documents they receive for the purposes of litigation only are not used except for the purposes of that litigation. Legal representatives need also at all times to bear in mind that these documents include affidavits which have been filed, or witness statements, that have come into their possession in circumstances where those documents have not become public documents or been read or tendered in Court. 3 What happened on this occasion is that investigations were being carried out by police officers and by the New South Wales Crime Commission in respect of matters related to the subject matter of these proceedings. At the forefront of the mind of the solicitor and barrister concerned was that some criticism had already been made, whether justifiably or not I have no idea, as to the degree of disclosure there had been to the Court on their client's behalf when shortly beforehand an ex parte injunction was obtained. In a situation where matters were of great urgency and there was great pressure upon them, on the plaintiff's instructions, they attended on Sunday, 19 December 1999 a conference with officers of the New South Wales Crime Commission. Their instructions included instructions to hand to officers of the New South Wales Crime Commission any documents that those officers required. The unread affidavits were handed over when they were asked by those officers to give them those affidavits. Mr Raftesath gave them the affidavits and Mr Hodgekiss saw them being given and said nothing. One of those officers has sworn an affidavit that points out that the New South Wales Crime Commission could and would have obtained the documents by compulsive process had it been minded to do so. The conference that was taking place was taking place in the course of enforcement of the law of the land by appropriate authority. Nonetheless, even criminal proceedings must be conducted according to law and part of the law is the rules (in the wide sense) in this Court as to how documents obtained for purposes of litigation may be handled: Harman v Secretary of State for the Home Department [1983] 1 AC 280; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. 4 Mr Hodgekiss certainly acknowledges that it would have been possible to apply, even on a Sunday, to a Judge of this Court for release from the undertaking, had the fact that what was occurring was in breach of the rules crossed his mind. He swears it did not. Mr Raftesath equally swears that it did not cross his mind. I unreservedly accept the word of each of them in that regard. They have both also proffered unreserved sworn apologies to this Court and to the parties whose affidavits were misused. I ought to say at once that I am acutely aware how easy it is for such matters to slip the mind under pressure despite their importance. I should add that Mr Raftesath was unaware that the rule applied to unread affidavits. It is unfortunate that that had not come to his attention and it is most important that all members of both professions who engage in litigation should be aware of this rule. However, as I have said, I unreservedly accept the word of both gentlemen that the subject matter did not occur to them at the time. 5 It may be said that the application to the Court for the purging of the contempt could have been made earlier but I do not propose to go into that matter. The important thing is that the application is now properly made on behalf of all three applicants by senior counsel and that unreserved apologies have been tendered. There appears to be no question that either of the parties whose affidavits they were suffered any damage which requires a compensation order. I should say that the law as to the principles relating to the purging of the contempt are conveniently set out in the judgment of Samuels AP in United Telecasters Sydney Limited v Hardy (1991) 23 NSWLR 323 at 340. The principles are that the elements that go towards the purging of contempt are unreserved apology, compensation or reparation for damages suffered by a party and the payment of relevant costs on the indemnity basis. I have already said there is no question of any damage. I have already dealt with the question of apology. So far as costs are concerned, it is agreed between the plaintiff and the eighth defendant that the plaintiff will pay the costs of the eighth defendant of the plaintiff's notice of motion dated 24 August 2000, including the costs of the motion as amended. I shall reserve any question of the costs of Citibank Limited. In the circumstances, I am prepared to make an order purging the contempt. 6 The orders that I make are: (1) I order that the plaintiff, Douglas Edmund Raftesath and Christopher Cunningham Hodgekiss be discharged from punishment for any breach of the implied undertaking arising from the disclosing or making available to officers of the New South Wales Crime Commission on 19 December 1999 of the affidavit of Susan Phelps sworn 17 December 1999 the affidavit of Joan Therese Fitzhenry sworn 17 December 1999 the affidavit of Rowan Milton Downing sworn 15 December 1999 and the affidavit of Christopher Schofield Moore sworn 16 December 1999 all filed in these proceedings. (2) By consent I order that the plaintiff pay the costs of the eighth defendant of the notice of motion including the notice of motion as amended. (3) I reserve all questions of the costs of Citibank Limited arising from this notice of motion. …oOo… Last Modified: 11/06/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.