DITFORT v KATZ

Court of Appeal (NSW)|1991-07-08|Before: Samuels JA, Finlay J

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:

There is no allegation or evidence that Mr Katz put that submission otherwise than honestly."

The motion came before us on 24 June and on that day, the claimant's summons having been fixed for hearing today, we adjourned the motion ordering that it should be heard before we embarked upon consideration of the summons. That has been done.

It seemed to the court that, having regard to the nature of the grounds taken in the motion, it would be most expedient to deal with the matter as if it was a demurrer to the statement of charge, and accordingly it has been unnecessary to have read all the affidavits which have been filed. The transcript of proceedings before Finlay J on 1 June 1987, when, as is common ground, the statement impugned was made by the opponent, was tendered and admitted and that has been the only evidence that we have before us.

Accordingly, the question is to be decided on the form of the charge, and it is whether the statement of charge as drawn discloses prima facie a case of contempt of court. The opponent submits, as I have indicated (this is the second submission and it is the only one which I find it necessary to deal with), that there being no allegation in the charge that the statement was made other than honestly, the statement of charge is bad on its face and is incapable of yielding a contempt of court. Putting the matter in slightly different words, the opponent's allegation is that in a case of contempt of this kind, and picking up the precise allegations in the charge, it is necessary for a claimant to allege and prove that the statement was made with knowledge of its falsity, or deliberately or wilfully or with intent to deceive.

The claimant, on the other hand, contends that this situation is covered by the general principle that in cases of contempt of court it is unnecessary to prove that the act was done with the intention of interfering with the due administration of justice.

In my view the opponent's contention is plainly correct and I can state my reasons, I think, quite shortly.

This is a particular kind of contempt of court which differs in a variety of respects from the contempt with which we are more familiar, perhaps that constituted by the interference by the media in the running of criminal trials. Of that type of contempt Hinch v The Attorney General (1987) 164 CLR 15 is a typical example.

The present kind of contempt is dealt with very clearly, it seems to me, in Borrie and Lowe's Law of Contempt, 2nd ed (1983), at p 308 and following. There the learned author points out that what we are considering here is abuse of the court's process amounting to or constituting contempt. At p 309 this is said:

"The most serious example of the abuse of process is conduct which is intended to deceive the court, for example by the deliberate suppression of facts or by the presentation of falsehoods. Contempt also includes bringing a frivolous or vexatious proceeding."

In a case such as Hinch, or the Builders Labourers' Federation (The State of Victoria and Anor v The Australian Building Construction Employees' and Builders Labourers' Federation (1982-3) 152 CLR 25) the contempt was the publication of material in the first, and the conduct of an inquiry in the second, which had the necessary tendency to interfere with the administration of justice. Whether that was the intention was not essential to the proof of the charge of contempt.

In a case such as the present the act of contempt is the statement said here to be false, and equally whether that statement was made with the intention of interfering in the administration of justice is not essential to the proof. But it is essential to establish that the statement was a deliberate falsehood or amounted to the deliberate suppression of facts. The contempt here consists of the abuse of process constituted by the intention to deceive the court. So that intention is a necessary element of the act of contempt itself rather than a description of the

intention which may have accompanied the act. The requirement that the act must be done to deceive the court entails deliberation, or knowledge of the falsity of the statement.

There is a number of cases which establish this proposition: but I think I need refer only to Linwood v Andrews and Moore (1888) 58 LT 612 and R v Weisz, Ex parte MacDonald (1951) 2 KB 611. In an earlier case in this series, Ditfort v Brown (1990) 19 NSWLR 49, I endeavoured at 53 to cover some of this ground, and I referred there to what seemed to me to be the most material authorities.

If the law were otherwise it would follow that a barrister, for example, but probably any advocate, whether barrister or solicitor, would be guilty of contempt if he or she made an assertion of fact which turned out to be untrue, although it was made in the utmost good faith. This, of course, cannot be right. It would require an advocate to conduct his or her independent analysis and examination of the instructions received from a client. It would place an intolerable burden on those appearing in the forensic arena and would be contrary to the perceived notions of our adversarial procedure. I do not wish it to be thought that I myself regard every aspect of that procedure as beyond criticism, or that the advocate's role is not one which requires great care and delicacy in certain circumstances. I know of no authority which requires any advocate to warrant as it were the truth of every statement of fact which he or she advances in court.

Mr Ditfort was prepared to concede that no such warranty covered a submission of law and I would respectfully agree with that view. But he argued that statements of fact had to be warranted or guaranteed by their maker but, for the reasons I have just offered, I cannot agree with that proposition.

As the matter stands, therefore, there is no allegation that the opponent, when he made the statement upon which reliance was placed, knew it was false; the assertion is merely that it was false in fact. It is not suggested that the word "false", which is ambiguous to an extent, was used or was intended to be read in the statement of charge as indicating knowledge of the untruthful nature of what was said. Indeed, any allegation of that kind would be inconsistent with the argument upon which the claimant relies.

In those circumstances it seems to me to follow that the statement of charge which, being an allegation of criminal conduct, must be clearly and distinctly framed, does not disclose any offence. To be more precise, it does not disclose on its face a contempt of court and is not capable of supporting such conduct.

It is unnecessary, as I said a little earlier, to consider whether or not the statement made by the opponent was correct, or to undertake an examination of the nature of the statement, that is to say whether it was a statement of law or a statement of fact. In my opinion, for the reasons I have given, I think that the challenge to the statement of charge and thus to the summons succeeds, and that the summons should be dismissed. We will hear counsel presently on the question of costs.

Priestley JA I also agree. (Parties addressed on the question of costs. Mr Walker asked for costs on an indemnity basis so that costs other than unreasonable costs should be paid. Mr Ditfort stated the evidence only arose in June 1990 and that the statement of Mr Katz was untrue. No evidence was put before the court that the Attorney General did exercise the power of the Crown prerogative. He would be seeking to submit fresh evidence before the Court of

Criminal Appeal. He considered Mr Katz to be an honourable man and it was a mechanical process without malice. Had the truth been told in the first place he would not have been as disadvantaged as he was. He submitted Mr Katz was entitled to reasonable costs, and that this was the last of the contempt proceedings.)

Samuels JA The opponent has applied for an order for costs on an indemnity basis, relying upon the nature of the case, its fate, and the time which has elapsed since 1987, or indeed even earlier when the initial events took place. We do not think that it is appropriate to make an order of that kind, which Mr Walker, counsel for the opponent, has very clearly told us has not previously been made in matters of this sort. We consider, of course, that we must make an order for costs in the ordinary way.

The formal orders of the court are the summons is dismissed with costs. The Claimant appeared in person

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

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