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[1988] FCA 275
General information, not legal advice.
Federal Court of Australia
1988-06-03
Gummow J
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By application filed 19 November 1987, the applicant seeks an order under s. 154 of the Bankruptcy Act 1966 annulling his bankruptcy ("the principal proceedings"). These reasons for judgment deal with a contempt motion taken out by the applicant on 12 February 1988. The circumstances are as
In the course of the preparation of his case in the principal proceedings, the applicant, on 22 December 1987, caused to be issued by the Deputy Registrar in Bankruptcy a Summons under rule 125 of the Bankruptcy Rules. The Summons was directed to:
The Summons required attendance on 2 February 1988, and production of "any documents in your custody or under your control that relate to the matter, and in particular, the following documents:
"As described in the Schedule see annexure hereto."
"1. Copies of all documents and notes given to the Government of the Federal Republic of Germany or any agency of that Government in the years 1985, 1986, 1987; by or on behalf of the Australian Government in support of or arising out of the Australian Government's requests dated 3rd April 1985 and 8th July 1985 that Grant Anthony Ditfort be returned to Australia to be dealt with according to
to the Australian Government or any agency of the Australian Government by or on behalf of the Government of the Federal Republic of Germany in response to or arising out of the Australian Government's requests dated 3rd April 1985 and 8th July 1985 that Grant Anthony Ditfort be returned to Australia to be dealt with according to law."
On 2 February 1988, Mr. Ian Clarke, Acting Executive Officer, Administrative Law Section of the Department of Foreign Affairs and Trade ("the Department"), appeared in Court to respond to the Summons. He produced to the Court a bundle of documents in answer to the Summons and the parties were given liberty to inspect them. On the same day, the principal
proceedings were set down for hearing on 17 March 1988.
On 12 February 1988, the applicant filed a motion that Mr. Clarke be dealt with for contempt of court in respect of an allegedly inadequate response to the Summons dated 22 December 1987. On 29 February 1988, the Court gave the applicant leave to file an amended application and, by consent, the loosely expressed "statement of charge" therein 1s to be treated as the specification of the alleged contempt for the purposes of rule 176 (1) of the Bankruptcy Rules. The gravamen of the alleged contempt is that Mr. Ian Clarke, as the Proper Officer of the Department failed to produce to the Court on 2 February all of the documents falling within the terms of the
On 17 March 1988, further documents were produced to the Court in further answer to the Summons of 22 December 1987. Mr. Gibb of counsel appeared. He indicated that after Mr. Ditfort had made his complaint, those instructing Mr. Gibb had caused further inquiries to be made. It was established that there were in fact further documents held at the Embassy in Bonn in the Federal Republic of Germany. It was not denied
that these documents fell within the schedule to the Summons.
Later, in the course of the hearing on 17 March, which dealt also with other aspects of the proceedings, Mr. Fergus, who is Mr. Clarke's superior and is the Director of the Administrative Law Section in the Department of Foreign Affairs and Trade, produced to the Court Parts 2, 3 and 4 of a file marked "German-Australian Relations Extradition Treaty". Mr.
Fergus gave evidence that a search had been made on that
Morning to locate Part 1 of the file. Mr. Fergus stated that this part had not yet been located in Canberra, and that it
might have been destroyed in accordance with usual arcnival
In the course of a further hearing, on 31 March 1988, Part 1 of the file was produced to the Court and added to the
documents already produced in answer to the Summons.
The position, therefore, 1s that 1t 18 conceded that the Summons was not complied with, but reliance 1s placed upon
the principles which appear in Halsbury's Laws of England, 4th
Ed., Vol. 9, para. 53, under the heading "Civil Contempt". Paragraph 53, omitting the footnotes, reads as follows: 53. Unintentional Disobedience
Although contempt may be committed in the absence of wilful disobedience on the part of the contemnor, committal or sequestration will not be ordered unless the contempt involves a degree of fault or misconduct. Thus accidental and unintentional disobedience is not sufficient to justify sequestration or committal, but the respondent may be ordered to pay the costs of the application.
Mr. Gibb also relied upon Australasian Meat Industry Employees'
Union v Mudginberri Station Pty. Ltd. (1986) 161 CLR 98 at
In his affidavit evidence, Mr. Fergus states that he has the responsibility within the Department for advising and implementing the administrative law aspects of matters
affecting international relationships between Australia and all
foreign countries. He says he 1s also responsible for answering subpoenas addressed to the Minister for Foreign Affairs and Trade, or to the Department, seeking documents, and that he has performed this duty in major cases on several
occasions. He has occupied his present position since October
The Summons issued 22 December 1987 was served on the Department in Sydney on 15 January 1988. Mr. Fergus was the officer responsible for initiating action to comply with the Summons, and after receipt of the Summons he took the steps he describes in his affidavit. However, he became 111 on 19 January, before that action had been completed. Mr. Ian Clarke took over at short notice to continue the action which Mr. Fergus had commenced. Mr. Fergus was not at work on 2 February, the return date of the Summons. He had a recurrent viral infection and this resulted in him taking two periods of
The evidence shows that a facsimile message (No. F.CH 18110) was sent to the Australian Embassy in Bonn. Attached to it was a copy of the Summons, and the Embassy was asked to advise whether any documents were held of the type described in items 1 and 2 of the schedule. The Embassy was asked to forward all such documents to Mr. Fergus by the first available bag. On 20 January 1988, the Embassy replied by cablegram stating that all documents corresponding to those described in schedules 1 and 2 had been photocopied and authenticated, and
Mr. Fergus had also instituted a search of records held in Canberra. The result was the production of the documents on 2 February. That, of course, was insufficient compliance with the Summons. After service of the bankrupt's application on 12 February 1988, Mr. Fergus conducted a further search of all relevant Department files. But he did not find
any other documents within the schedule to the Summons.
In the performance of its responsibilities, the Department retains copies of all cables sent to and received from overseaS on 1tS computerised records. However, Department files will not necessarily contain copies of all cables about a particular extradition sent from, for example, the Attorney-General's Department to an overseas post. Copies of all cables will, however, be kept by that post and the
On Monday, 1 February 1988, all documents received from Bonn together with documents he had recovered from the Department's files were sent from Canberra to Sydney. These documents were produced to the Court by Mr. Clarke on 2
On 10 March 1988, Mr. Fergus caused to be sent to the Australian Embassy at Bonn a cablegram (No. O.CE 507105) as follows:
DITFORT HAS ALLEGED THAT DFAT IS IN CONTEMPT OF THE FEDERAL COURT ON THE GROUND THAT WE HAVE NOT PRODUCED ALL DOCUMENTS WHICH HE KNOWS TO EXIST, IN ANSWER TO HIS SUMMONS: FOR EXAMPLE, COPIES OF ATTORNEY-GENERAL'S REQUISITION, WARRANTS AND SUPPORTING
WE WOULD BE GRATEFUL IF YOU WOULD IMMEDIATELY INITIATE A FURTHER SEARCH TO IDENTIFY ANY DOCUMENTS WHICH MIGHT NOT HAVE BEEN FOUND PREVIOUSLY.
URGENT CABLED RESPONSE WOULD BE APPRECIATED TO ENABLE US TO PREPARE FOR HEARING OF THE CONTEMPT APPLICATION ON 17 MARCH 1988.
On the same day, there was sent from the Bonn Embassy
to the Department in Canberra a cablegram (No. 0.BO 40793)
WE HAVE PHOTOCOPIED AND AUTHENTICATED ALL (UNDERLINE ONE) MATERIAL ON THE DITFORT CASE HELD AT THE POST INCLUDING THE ATTORNEY-GENERAL 'S REQUISITION, WARRANTS AND SUPPORTING EVIDENCE.
REFTEL CAUSES US GRAVE CONCERN. F.CH 18110 REQUESTED QUOTE PLEASE FORWARD ALL SUCH DOCUMENTS (I.E. THOSE DESCRIBED IN ITEMS 1 AND 2 OF THE SCHEDULE) TO ME BY FIRST AVAILABLE BAG UNQUOTE. WE HAVE NOW TO EXPLAIN TO THE FEDERAL COURT WHY DOCUMENTS SENT TO YOU FOR ONFORWARDING TO THE FRG GOVERNMENT WERE OMITTED DESPITE THE CLEAR TERMS OF THE SCHEDULE.
RELATE TO DITFORT CASE. WE MUST HAVE EVERYTHING (UNDERLINE ONE) HELD BY THE EMBASSY.
(T) HOW ORIGINAL SEARCH WAS CONDUCTED, INCLUDING ALL FILE REFERENCES;
(III) WHETHER FURTHER DOCUMENTS WERE IDENTIFIED IN RESPONSE TO 0O.CE 507105 AND IF SO WHY THEY WERE NOT IDENTIFIED IN ORIGINAL SEARCH.
BEFORE THE COURT. TO MINIMISE DAMAGE, WE MUST PROVIDE ALL DOCUMENTS AND BE ABLE TO GIVE A FULL EXPLANATION AT THE HEARING ON 17 MARCH.
The response from Bonn was by cable (No. 0.BO 40800 dated 11 March 1988). The material part of this reads as follows:
WE REGRET THAT OUR COMMENT "ALL MATERIAL" IN 0.BO 40793 CAUSED YOU CONCERN.
The telememo, also dated 11 March 1988, so far as material, provides as follows:
T) M VAN RIJN, SECOND SECRETARY (C+A) CONDUCTED THE WORK ON F.CH 11110 By REVIEWING PARTS 2, 3 AND 4 OF PILE 821/2/6 (GERMAN-AUSTRALIAN RELATIONS, EXTRADITION TREATY ) AND COPYING ALL DOCUMENTS CORRESPONDING TO THOSE DESCRIBED IN ITEMS 1 AND 2 OF THE SCHEDULE OF THE SUMMONS TO WITNESS. AS YOU ARE AWARE ITEMS 1 AND 2 OF THE SUMMONS TO WITNESS SOUGHT COPIES (1) ONLY OF RELEVANT DOCUMENTS. PAGE 5 OF F.CH 18110 REFERS.
II) NO SELECTION OF DOCUMENTS WAS MADE. DOCUMENTS FORWARDED WERE THOSE SOUGHT BY ITEMS 1 AND 2 OF THE SCHEDULE OF SUMMONS TO THE WITNESS DATED 22.12.87 WHICH WAS FAXED TO BONN ON 20.1.88 PER F.CH 18110.
III) NO FURTHER DOCUMENTS WERE IDENTIFIED IN RESPONSE TO 0.CE 507105. A COPY OF THE ENGLISH VERSION OF THE ATTORNEY GENERAL'S REQUISITION, WARRANTS AND SUPPORTING EVIDENCE COULD, HOWEVER, FALL INTO THIS CATEGORY. (PLEASE SEE PARA 2 OF 0.BO 40800 FOR EXPLANATION). THE ORIGINAL (UNDERLINE ONE) AND ORIGINAL TRANSLATION (IN GERMAN) OF THE ATTORNEY GENERAL'S REQUISITION, WARRANTS AND SUPPORTING EVIDENCE, WAS FORWARDED TO THE GERMAN AUTHORITIES AND IS OF COURSE HELD BY THEM.
The circumstances in which there was a failure to comply with the terms of the Summons sufficiently appear from
The evidence shows that, on receipt of the Summons,
Mr. Fergus and those assisting him promptly took the matter in hand. The failures in the operation of what otherwise should be an effective system lay in the careless and inefficient response from the Bonn post to the requests from Canberra. It 1s true that as late as 31 March 1988, the documents produced from records in Australia had to be supplemented by part 1 of the file. However, it had only become apparent to Mr. Fergus (as he indicated in his oral evidence on 17 March) that part 1 might exist after receipt of a memorandum from the Embassy in Bonn dated 11 March. This aspect of the matter was then
In all the circumstances of the case, and having regard to the careless and inefficient conduct of those in the Bonn post, the facts nevertheless attract the application of the principle to which I have already referred. The present
case stands in contrast to authorities such as James v Cowan
(1929) 42 CLR 305. There, the Acting Secretary of the Dried Fruits Board of South Australia was directed by the South Australian Minister of Agriculture to refuse to produce, in response to a subpoena to produce certain minute books of the Board. That was a case of deliberate disobedience which plainly constituted a contempt for which the Acting Secretary was dealt with by the High Court. The present case 1s one of casual accidental and unintentional disobedience and it 1s not one of conscious intentional or systematic disobedience:
Heatons Transport (St. Helens) Ltd. v Transport and General
Workers' Union [1973] AC 15 at 108-109; Australasian Meat
Industry Employees' Union v Mudginberri Station Pty. Ltd.
(supra); New South Wales Egg Corporation v Peek (1987) 10
terms of the Summons has been established (and indeed was not
disputed) but no order should be made for punishment. However,
I propose to order that the respondent to the motion filed 12
February 1988 pay the costs thereof of the applicant.
this and the ten (10) are a true copy of the Judgment of his Honour Mr.
S. Gibb instructed by the Australian Government Solicitor.
(1986) 161 CLR 98
(1929) 42 CLR 305
(1987) 10
NSWLR 72