Re Ditfort, Grant Anthony v Ex parte Deputy Commissioner of Taxation

[1988] FCA 275

.

IN THE FEDERAL COURT	OF AUSTRALIA	)
)

GENERAL DIVISION BANKRUPTCY DISTRICT	)
)
OF THE STATE OF NEW SOUTH WALES	) No. NSW 1577 of 1986
1
AND THE AUSTRALIAN CAPITAL TERRITORY	)

RE :  GRANT ANTHONY DITFORT
Debtor/Applicant

EX PARTE: DEPUTY COMMISSIONER OF

TAXAT I ON

Judgment Credltor/Respondent

CORAM: GUMMOW	J .
PLACE:	SYDNEY.
DATE :	3 JUNE 1988.

MINUTE OF ORDER

CONTEMPT MOTION

THE COURT ORDERS THAT:

1. The respondent pay the applicant's costs of the

motion.

2. Otherwise the motion is dismissed.

- Note : Settlement and entry of orders 1s dealt wrth by Order

IN	THE	FEDERAL	COURT	OF AUSTRALIA	)
)

GENERAL DIVISION BANKRUPTCY DISTRICT	) )
OF THE STATE OF NEW SOUTH WALES	) No. NSW 1577 of 1986 )
AND THE AUSTRALIAN CAPITAL TERRITORY	)

RE :  GRANT ANTHONY DITFORT
Debtor/Applicant

EX PARTE: DEPUTY COHHISSIONER OF

TAXAT I ON

Judgment Creditor/Respondent

CORAM:	GUMMOW J .
PLACE:	SYDNEY.
DATE :	3 JUNE 1988.

REASONS FOR JUDGMENT ON CONTEMPT HOTION

By application filed 19 November 1987, the appllcant

seekr 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

followr: 

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 Proper Officer
Department of Foreign Affairs,

. 2

1 0 0 Willlam Street

Sydney"

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."

The annexed schedule was in the following terms:

"l.	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 Australran Government in support of or
arising Australian the of out
Government's requests dated 3rd April
1985 and 8th July 1985 that Grant
Anthony Ditfort be returned to
Australia to be dealt with accordrng to law.
2.	to the Australian Government or any
Copier of all documents and notes given or on behalf of the Government of the Federal Republic of Germany in response
to or arising out of the Australian
Governmrnt's requests dated 3rd April
1985 and 8th July 1985 that Grant
Anthony Ditfort returned be 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 rn 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 rnotlon

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 is to be
treated as the specificatlon 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

Summons.

On 17 March 1988, further documents were produced to

the Court in further answer to the Summons of 22 December 1987.

Mr. Gibb of counrel 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 docu~entr fell within the schedule to the Summons.

Later, in the course of the hearing on 17 March, whlch

dealt also wlth other aspects of the proceedlngs, Mr. Fergus,

who is M T . Clarke's superior and 1s 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

. 4 .

mornlng to locate Part 1 of the file. Mr. Fergus stated tkar:
this part had not yet been located in Canberra, and that I t
might have been destroyed in accordance with usual arcnl.lal

procedures.

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, is that it is conceded that the Summons was not complied with, but reliance IS placed upon the principles which appear in Halsbury's Laws of England, 4th Ed., Vol. 9, para. 53, under the heading "Civll Contempt". Paragraph 53, omitting the footnotes, reads as follows:

5 3 .  Unintentional Disobedience

Although contempt may be committed in the absence of wilful disobedience on the part of the contemnor, committal OK sequestration will not be ordered unless the contempt involves a degree of fault or misconduct.

Thus accidental and unintentional

disobedience 1s not sufficient to ~ustify
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
112-113.
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 i s 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 m a ~ o r cases on several
occasions. He has occupied his present posltion since October
1984.

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 ill on 19

January, before that action had been completed.	Mr. Ian Clarke
took over at short notice to continue the action which	Mr .

Fergur had couunced. Hr. Ferqur 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
sick leave in thir period.

The evidence shows that a facsimile message (No. F.CH

18110) warn	rent to the Aurtrallan Embassy in Bonn. Attached
to it war a copy of the Summons, and the Embassy was asked to

advire 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
would be forwarded to Canberra.

c' 6.

Mr. Fergus had also instituted a search of records

held in Canberra. The result was the productlon of the

documents on 2 February. That, of course, was insuff~clent

compliance with the Summons. After service o f the bankrupt's appllcation on 12 February 1988, Mr. Fergus conducted a further search of all relevant Department files. But he did not find any other documents wrthin the schedule to the Summons.

In the performance of its responslbllitles, the Department retains copies of all cables sent to and received from overseas on its computerised records. Howeve c, 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 cable6 will, however, be kept by that post and the

originating department in Australia.

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 document6 were produced to the Court by Mr. Clarke on 2

February 1988.

On 10 March 1988, Mr. Ferqus 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
mons TO EXIST, IN ANSWER TO HIS SUMMONS:

FOR EXAMPLE, COPIES OF ATTORNEY-GENERAL'S REQUISITION, WARRANTS AND SUPPORTING

EVIDENCE, AND JUDGMENTS OF GERMAN COURTS.

WE WOULD BE GRATEFUL I F 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. 0.80 40793)
reading as follows:

WE HAVE PHOTOCOPIED AND AUTHENTICATED ALL

(UNDERLINE ONE) MATERIAL ON THE DITFORT CASE

HELD AT POST INCLUDING THE THE

ATTORNEY-GENERAL'SREQUISITION, WARRANTSAND

SUPPORTING EVIDENCE.

2. THE FORMER FIRST SECRETARY IN BONN, ALEX

BROOKING, WHO DEALT WITH THE DITFORT CASE
DURING HIS POSTING HERE, IS NOW WORKING IN

THE WEST EUROPE SECTION. IT MAY BE USEFUL,

I? YOU HAVt NOT ALREADY DONE	SO, TO DISCUSS
THE CASE WITH	HIM.

3. ALL MATERIAL WITH EXCEPTION OF

CONFIDENTIAL CABLES	. . . WILL BE RETURNED
11.3.88.

TO CANBERRA PER AIR ?REIGHT BAG NO 510 OF

On 11 March, Mr. Fergus caused a cablegram (O.CE

507858) to be sent	in	response. The material parts read	as
followr:

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
GOVERNUENT WERE OMITTED DESPITE THE CLEAR

TERMS OF THE SCHEDULE.

2 . PLEASE FORWARD IN AIR FREIGHT BAG 510 OF

11.3.88 ALL ORIGINAL (UNDERLINE TWO)

DOCUUENTS, IN ORIGINAL FILE COVERS, WHICH

.

. a .

RELATE TO DITFORT CASE. WE MUST HAVE

EVERYTHING	(UNDERLINE	ONE)	HELD BY THE
EMBASSY.

3 . OFFICER RESPONSIBLE FOR HANDLING THE WORK ON F.CH 18110 SHOULD DESPATCH URGENTLY BY TELEMEMO A FULL REPORT ON THIS MATTER DETAILING THE FOLLOWING:

(I) HOW ORIGINAL SEARCH WAS

CONDUCTED, INCLUDING	ALL FILE
REFERENCES;

( 11) REASONS WHY SELECTION WAS MADE

FROM AMONGST DOCUMENTS HELD;

(111) WHETHER FURTHER DOCUMENTS WERE

IDENTIFIED IN RESPONSE TO O.CE

507105 AND IF SO WHY THEY WERE

NOT IDENTIFIED IN ORIGINAL

SEARCH.

4. FAILURE TO PRODUCE ALL DOCUMENTS HAS

CAUSED EMBARRASSMENT FOR DFAT AND A-G'S

BEFORE THE COURT. TO MINIMISE DAMAGE, WE MUST PROVIDE ALL DOCUMENTS AND BE ABLE TO

GIVE A FULL EXPLANATION AT THE HEARING	ON 1 7
MARCH.

The response from Bonn was by cable (No. 0.80 40800

dated 11 March 1988).	The material part of this reads a s
follows:

WE REGRET THAT OUR COMMENT "ALL MATERIAL" IN

0.80 40793 CAUSED YOU CONCERN.

2 . ALL DOCUMENTS REQUESTED IN F.CH 18110

WERE DESPATCHED TO CANBERRA BY FIRST

AVAILABLE BAG (AF 5 0 3 OF 22.1.88). THE ONLY

POSSIBLE EXCEPTION BEING A COPY OF THE ENGLISH VERSION OF THE ATTORNEY GENERAL'S REQUISITION, WARRANT AND SUPPORTING

EVIDENCE. WE HAD PRESUMED A COPY OF THIS

DOCUMENT WOULD BE HELD IN CANBERRA FROM

WHERE ORIGINAL WAS SENT. A COPY OF THE

GERMAN TRANSLATION, WHICH YOU	MAY NOT HAVE
WAS, HOWEVER, RETURNED.	OUR REFERENCE TO
"ALL MATERIAL"	IN PARA 1 OF 0.60 40793 MEANT
EVERY ITEM OF CORRESPOND- ENCE [SIC	1 HELD AT
THE POST THAT REFERRED TO	THE DFFORT CASE

AND NOT (UNDERLINE ONE) ADDITIONAL MATERIAL

COVERED BY ITEMS 1 AND 2 OF THE SCHEDULE OF

THE SUMMONS TO WITNESS.

3. ALL DOCUMENTS REQUESTED IN PARAGRAPH 2 OF REFTEL HAVE BEEN DESPATCHED BY AIR FREIGHT

BAG NO 510 OF 11.3.88. MATERIAL NOT RELATED

TO THE DITFORT CASE HAS REMOVED FROM THE

THREE FILE PARTS BEING RETURNED AND	IS HELD
AT POST.
4. REPORT REQUESTED	IN PARA 3 OF REFTEL
FOLLOWS BY TELEMEMO.

The telememo, also dated	11 March 1988, so far a s materlal,
provides as follows:

I ) M VAN RIJN, SECOND SECRETARY (C+A)

CONDUCTED THE WORK ON F.CH 11110 BY REVIEWING PARTS 2 , 3 AND 4 OF FILE 821/2/6

(GERMAN-AUSTRALIAN RELATIONS, EXTRADITION

TREATY) COPYING AND DOCUMENTS ALL

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 1

ONLY OF RELEVANT DOCUMENTS. PAGE	5 OF F.TH
18110 REFERS.
I1 1	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.

111) NO FURTHER DOCUMENTS WERE IDENTIFIED
IN RESPONSE TO O.CE 507105. A COPY OF THE

ENGLISH VERSION OF THE ATTORNEY GENERAL'S

REQUISITION, WARRANTS SUPPORTING AND

EVIDENCE COULD, HOWEVER, FALL INTO THIS

CATEGORY. (PLEASE SEE PARA 2 OF 0.80 40800

FOR EXPLANATION). THE ORIGINAL (UNDERLINE

ONE) AND ORIGINAL TRANSLATION (IN GERMAN) OF

THE ATTORNEYGENERAL'S REQUISITION, WARRANTS

AND SUPPORTING EVIDENCE, WAS FORWARDED TO

THE GERMAN AUTHORITIES AND	IS OF COURSE HELD
BY THEM.

The circumstances in whlch there was a failure to

comply with the terms of the Summons sufficiently appear from

what has been set out above.

The evidence shows that, on receipt of the Summons,

.
. -

II 10

Mr. Fergus and those asslstlng him promptly took the matter ln

hand. The failures in the operation 3f what otherwise should be an effective system lay in the careless and inefflcl5nt response from the Bonn post to the requests from Canberra. It is 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 promptly put in hand by Mr. Fergus.

In all the clrcumstances of the case, and having

regard to the careless and inefficient conduct of those in the Bonn post, the facts nevertheleas 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 3 0 5 . There, the Acting Secretary of the Dried

Fruit8 Board of South Australia was directed by the South Australian Minister of Agriculture to refuse to produce, i n

Board. That was a case of deliberate disobedience which	responre to a subpoena to produce certain minute books of the
plainly constituted a contempt for which the Acting Secretary was dealt with by the High Court. The present case 1 s one of casual accidental and unintentlonal dlsobedlence and it is not
one of conecious intentlonal or systematic disobedience:
Heatons Transport (St. Helens) Ltd. v Transport and General
Workers’ Union [l9731 AC 15 at 108-109; AuStralaSlan Meat
Industry Employees’ Union v Mudglnberrl Statlon Pty. Ltd.

.

. .

I

11.

( s u p r a ) ; New South Wales Egg Corporation v - Peek (1987) 10

NSWLR 72 at 81-82.

The result i s that the failure to comply with t h e

terms of the Summons has been established (and indeed	.xas nct
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.

I certify that this and the ten ( 1 0 )

preceding pages are a true copy of the

Reasons for Judgment of his Honour M r .

Justice Gummow.

Associate:

Date:  3 June 1988.

Counsel for the Applicant:  The applicant appeared in

person .

Counsel for the Respondent: S. Gibb instructed by the

Australian Government

Solicitor.

Date of Hearing:	17 and 31 March 1988, 12 May 1988.
Date of Judgment:	3 June 1988.