Lane v Registrar of Supreme Court of NSW [1981] HCA 35; (1981) 148 CLR 245 (28 July 1981)

HIGH COURT OF AUSTRALIA

LANE v. REGISTRAR OF SUPREME COURT OF N.S.W. [1981] HCA 35; (1981) 148 CLR 245

Contempt of Court

High Court of Australia
Gibbs C.J.(1), Mason(1), Murphy(1), Wilson(1) and Brennan(1) JJ.

CATCHWORDS

Contempt of Court - Subpoena to produce documents - Advice given not to produce particular documents &which would otherwise have been produced - Interest of adviser on procuring non-production - Documents not within class described in subpoena - Intent - Whether action likely to interfere with administration of justice - Subpoena addressed to stranger to action - Requirements - Supreme Court Rules (N.S.W.), Pt 37.

HEARING

1981, June 2, 3; July 28. 28:7:1981
APPEAL from the Supreme Court of New South Wales.

DECISION

July 28.
THE COURT delivered the following written judgment: -
This is an appeal from an order of the Supreme Court of New South Wales two charges of contempt of court, fining him a total of $3,100 and ordering that he pay one third of the costs (1980) 1 NSWLR 688 . The present respondent, the Registrar of the Supreme Court (Equity Division), preferred charges of contempt of court against the appellant and two other defendants, Graeme Kenneth McPherson and Partnership Pacific Ltd. and the charges were heard before the Court of Appeal. We are concerned only with the two charges on which the appellant was convicted, namely the eighth and ninth charges laid in the statement of charges annexed to the summons. Those two charges were stated as follows, the reference in the statement to "the Second Defendant" and "the Third Defendant" being a reference to the appellant and to Partnership Pacific respectively:
"Procuring Bank of Tokyo not to produce HM in answer to their subpoena of 20 April

8. That the Second Defendant was guilty of contempt of Court in that:
(a) the Second Defendant was prior to and as at the dates hereinafter

referred to an officer of the Third Defendant;
(b) as at 12 April 1979 the Second Defendant knew that proceedings in the matter of Marra Developments Limited No. 3270 of 1978 had been commenced in the Equity Division of this Honourable Court and knew the nature of such proceedings;
(c) on or about 12 April 1979 the Second Defendant wrote in his own hand a document entitled 'Yunghanns & Truesdale' concerning an offer by Industrial Equity Limited to acquire certain of the preference shares in Marra Developments Limited at a price of 51.5c per share (which document is hereinafter referred to as 'the Hand-written Memorandum').
(d) on or about 12 April 1979 the Second Defendant delivered or caused to be delivered to the Bank of Tokyo a copy of the Hand-written Memorandum.

PARTICULARS
(i) A copy of the Hand-written Memorandum was given to Mr. Kuzumaki at a

meeting of certain members of the Executive Committee of the Third Defendant on 12 April 1979.
(ii) Mr. Kuzumaki is and was as at 12 April, an officer of the Bank of Tokyo.
(iii) The copy of the Hand-written Memorandum was given to Mr. Kuzumaki in his capacity as the duly appointed representative of the Bank of Tokyo at meetings of the said Executive Committee and as agent for the Bank of Tokyo.
(iv) In the alternative if the Hand-written Memorandum was given to Mr. Kuzumaki as a director of the Third Defendant Mr. Kuzumaki after the said Executive Committee meeting, as agent for the said Third Defendant delivered the Hand-written Memorandum to the Bank of Tokyo.
(e) On or about 20 April 1979 the petitioners in the said proceedings served on the Bank of Tokyo a Subpoena requiring the production of, inter alia, all communications from any officer of the Third Defendant or any officer acting in the affairs of the Third Defendant from 1 January 1974 to 20 April 1979 referring to Marra Developments Limited or Peter Nicholas Yunghanns or J. Truesdale.
(f) The copy of the Hand-written Memorandum was in the possession of the Bank of Tokyo on the date of service of the said Subpoena.
(g) The copy of the Hand-written Memorandum was within the terms of the said Subpoena and it was the duty of the Bank of Tokyo to produce the same in answer to the said Subpoena.
(h) On or about 23 April 1979 the Second Defendant well knowing the matters referred to in paragraph (e), (f), and (g) wilfully procured Mr. Kuzumaki for and on behalf of the Bank of Tokyo not to produce a copy of the Handwritten Memorandum to the Court upon return of the said Subpoena on 24 April 1979 with intent on the part of the Second Defendant to suppress and withhold from the Court all evidence of the said document and its contents.

Procuring the Bank of Tokyo not to produce TM in answer to their subpoena of 20 April

9. That the Second Defendant was guilty of contempt of Court in that: -
(a) The Plaintiff repeats the matters alleged in paragraph 8 (a), (b) and

(e);
As at 20 April, 1979 the Type-written Memorandum was in the possession of the Bank of Tokyo.

PARTICULARS
(i) A copy of the Type-written Memorandum was delivered to Mr. Kuzumaki at

the office of the Bank of Tokyo on 18 April 1979;
(ii) Mr. Kuzumaki is and was as at 18 April 1979 an officer of the Bank of Tokyo.
(iii) The copy Type-written Memorandum was given to Mr. Kuzumaki in his capacity as the duly appointed representative of the Bank of Tokyo at meetings of the said Executive Committee and as agent for the Bank of Tokyo.
(iv) In the alternative, if the Type-written Memorandum was given to Mr. Kuzumaki as a director of the Third Defendant, Mr. Kuzumaki as agent for the Third Defendant, delivered the Type-written Memorandum to the Bank of Tokyo.
(c) The Type-written Memorandum was within the terms of the said Subpoena served on the Bank of Tokyo and it was the duty of the Bank of Tokyo to produce the same in answer to the said Subpoena.
(d) On 23 April 1979 the Second Defendant well knowing the matters alleged in paragraphs (b) and (c) hereof and 8(e) wilfully procured the Bank of Tokyo not to produce a copy of the Type-written Memorandum to the Court upon the return of the said Subpoena on 24 April, 1979, with intent on the part of the Second Defendant to suppress and withold from the Court all evidence of the said document and its contents." (at p249)

2. The facts of the case were as follows. Proceedings had been brought by petition in the Supreme Court by a number of ordinary shareholders in Marra Developments Ltd. seeking relief under s. 186 of the Companies Act 1961 (N.S.W.), as amended. The defendants to the petition were the company, and a group of shareholders, described collectively as "the Yunghanns connexion", who owned the bulk of the preference shares and controlled the company and were alleged to be exercising their control in a manner oppressive to the plaintiffs. The proceedings were due to commence before Needham J. on 24 April 1979. The appellant was a corporate finance manager employed by Partnership Pacific, a merchant bank which had lent a considerable sum of money to Yunghanns on the security of his shares in Marra. The shares in Partnership Pacific were held equally by the Bank of New South Wales, the Bank of America and the Bank of Tokyo. Each of those banks appointed persons to be members of the board of directors of Partnership Pacific and of the executive committee of that company. The executive committee had a limited authority to approve applications for borrowings; applications not within the authority required the approval of the board. Mr. Kuzumaki, who was employed by the Bank of Tokyo as its senior representative in its Australian representative office in Sydney, had been appointed by that bank to be a member of the board of directors and of the executive committee of Partnership Pacific. On 11 April 1979 the appellant was told by Mr. Vear, the general manager of Partnership Pacific, that Yunghanns had sold his shares in Marra to another company, Industrial Equity Ltd., and was asked to calculate "a figure for accrued interest which we (Partnership Pacific) would be prepared to forego in clearing up our whole Yunghanns involvement." The account had been a "troublesome" one and Partnership Pacific welcomed the prospect of early payment. On the following day, after various discussions, the officers of Partnership Pacific were prepared to recommend a proposal that the shares owned by Yunghanns should be released from the security on terms which meant the forgiveness of about $1.5m of interest, that the sale of those shares to Industrial Equity would thus be able to proceed and that a loan of about $6m would be made to Industrial Equity on the security of the shares. It was hoped that once the allegedly oppressive shareholders had sold their shares to Industrial Equity, the latter company would be able to settle the proceedings brought by the ordinary shareholders. It was also hoped to complete the transaction by 23 April, on which date Industrial Equity intended to announce to the Stock Exchange that it had acquired the shares. Before this proposal was put to the directors of Partnership Pacific, the appellant consulted a solicitor, Mr. Lehane, a member of the firm of Messrs Allen, Allen & Hemsley, and was advised that the financing of the transaction would not be a contempt of court, and that the transaction could not be set aside by the petitioning shareholders once it had been completed. The appellant then sought the views of the directors of Partnership Pacific on the proposal. Mr. McDonald, who had been appointed by the Bank of New South Wales, indicated his agreement to it. The appellant then arranged that Mr. Kuzumaki and Mr. McCoy (an appointee of the Bank of America) should meet with himself and Messrs Vear and McPherson (who was also an officer of Partnership Pacific) to discuss the matter, and Mr. Kuzumaki requested him to prepare something in writing to enable him to understand the transaction. The appellant accordingly wrote out the document which is referred to in the charges as the handwritten memorandum. It is unnecessary to refer in detail to the contents of that document, which set out the details of the proposal and the recommendations of the officers of Partnership Pacific that it should be accepted. The meeting was held on the same day, 12 April, and copies of the handwritten memorandum were given to Messrs Kuzumaki and McCoy. Because of the amount involved it was necessary that the proposal for the borrowing by Industrial Equity should be approved by the board of directors, and the board did approve. However, it became apparent that Industrial Equity would need to borrow about $6.5m rather than the $6m which the board had approved, and on 18 April Mr. McPherson prepared another document - the typewritten memorandum - for further consideration by the board. This document was headed "Memorandum to the Board (through Executive Committee)" and set out the details of the proposal, as well as some details of the financial position of Industrial Equity. However, in this document no reference was made by name to Marra or Yunghanns; the former was referred to as Alpha and the latter as Beta. Copies of this document were forwarded to Messrs McDonald, McCoy and Kuzumaki. (at p251)

3. On 20 April 1979 the Bank of Tokyo received a subpoena ordering it to attend at the Supreme Court on 24 April 1979 and produce the documents described in the schedule. So far as it is material, the schedule read as follows:

"BANK OF TOKYO
All communications and documents recording oral communications to and

from

(a) any officer of Partnership Pacific Limited,
(b) the secretary of the executive,
(c) any member of the executive committee of Partnership Pacific Limited,
(d) any officer acting in the affairs of Partnership Pacific Limited,
from 1.1.74 to date,
referring to
. . .
(ii) Marra Developments Ltd.
(iii) P. N. Yunghanns, . . . "

On the morning of 23 April Mr. Kuzumaki placed in a folder all the documents which seemed to him to answer the description contained in the schedule to the subpoena. He then telephoned the appellant and asked him to come and help him check whether the documents which he had collected were complete. The appellant came to his office and checked the documents, which included a copy of the handwritten memorandum and a copy of the typewritten memorandum. Then the appellant suggested that he should seek advice on the matter from Messrs Allen, Allen & Hemsley and, with Mr. Kuzumaki's concurrence, he went to see Mr. Lehane. He took with him the subpoena and the documents in the folder, but although he showed Mr. Lehane the subpoena he did not show him the documents. He described to Mr. Lehane the typewritten memorandum and inquired whether the bank was required to produce it. The reason which he gave for his inquiry was that the document did not refer to Marra or Yunghanns by name, but Mr. Lehane advised him that the typewritten memorandum was not required to be produced for quite a different reason. Mr. Lehane said:
"I don't think so (i.e., that the subpoena requires the bank to produce the typewritten memorandum). As I read the subpoena, what it requires is documents which are in the Bank's possession and all communications from and to the Bank to and from any of the persons in (a) (b) (c) and (d). This document, if it is as you describe it, is a communication from officers of Partnership Pacific to Mr Kuzumaki as a director of Partnership Pacific, not to the Bank, and it is the directors' document, not the Bank's."
The appellant returned to Mr. Kuzumaki's office to communicate to him the result of his visit to Mr. Lehane. At this point there is a conflict of evidence. Mr. Kuzumaki, who swore an affidavit but did not give oral evidence, said that the appellant pointed to the file of documents and said: "I think this is in order, but there are papers between your office and Tokyo on the file and you should get in touch with your solicitors to see if they are covered by the subpoena." Mr. Kuzumaki said that he did not remember whether the appellant then referred to the handwritten memorandum and the typewritten memorandum. While the appellant was still in his office, Mr. Kuzumaki telephoned his solicitors, Messrs Baker & McKenzie, but the partner whom he wished to consult was not available. Later that afternoon, according to Mr. Kuzumaki's evidence, the appellant telephoned him and said: "It is not necessary to produce the documents relating to the new transaction", which Mr. Kuzumaki understood to mean the handwritten memorandum and the typewritten memorandum, which related to the purchase of shares by Industrial Equity. The appellant's version of these events was also given by affidavit, upon which he was cross-examined at some length. His evidence was that on his return to Mr. Kuzumaki's office he said to Mr. Kuzumaki: "Mr. Lehane is of the view that the I.E.L. papers are not covered by the subpoena." Later that day the appellant was requested by the Bank of America to help that bank with a similar subpoena that it had received. He went to the bank and was shown their files which, as he observed, did not contain a copy of the handwritten memorandum or of the typewritten memorandum, and when he inquired he was told that the bank had no paper relating to Industrial Equity. He knew however that there were documents on the file that were addressed to members of the board or the executive committee of Partnership Pacific, and he did not tell the officer of the Bank of America who was showing him the documents of the advice that he had received from Mr. Lehane or that, in accordance with the reason underlying that advice, those documents were not covered by the subpoena. He was told that the Bank of America did not intend to obtain legal advice, and later rang Mr. Kuzumaki and said: "I have learnt that the Bank of America are not choosing to take legal advice in relation to their subpoena. I'm ringing you just in case you wish not to take legal advice also." The learned members of the Court of Appeal formed an adverse view of the credibility of the appellant and found much of his evidence unacceptable. They accepted the version of events put forward by Mr. Kuzumaki. (at p253)

4. Later that day, the 23 April, Mr. Kuzumaki did speak to his solicitor, but because he believed that the bank was not required to produce the copy of the handwritten memorandum or of the typewritten memorandum he did not seek any advice from his solicitor in relation to those documents. On 24 April, when the Bank of Tokyo answered the subpoena, it did not produce either the copy of the handwritten memorandum or the copy of the typewritten memorandum. On the same day Mr. McPherson appeared before the Court on the return of the subpoena addressed to Partnership Pacific, and gave evidence that he had ordered the destruction of the typewritten memorandum - this was the subject of a charge on which Mr. McPherson was convicted, but which did not involve the appellant in any way. When Mr. Kuzumaki heard of this evidence, he sought legal advice as to the obligation of the bank to produce its copies of the handwritten memorandum and the typewritten memorandum. He was advised that it was doubtful whether the documents were in the possession, custody or control of the bank, and that they might more properly be regarded as within his own possession, custody or control as a director of Partnership Pacific. Notwithstanding this advice he decided to produce the documents. (at p254)

5. In the Court of Appeal, Moffitt P. and Hope J.A. agreed with the reasons given by Glass J.A. in respect of the two charges now in question, but added some supplementary reasons of their own. Glass J.A. said that it was irrelevant whether the Bank of Tokyo was bound to produce the documents. He said that it was plain that but for the advice given him by the appellant, Mr. Kuzumaki would have produced the copies of the handwritten memorandum and the typewritten memorandum together with all the other documents from the file, that it was a clear obstruction to the administration of justice to cause the suppression of documents which would otherwise be produced in court in answer to a subpoena, and that the charge would be made out if it were shown that the appellant intended that such an obstruction would occur or knowingly tendered advice calculated to produce such a result. His Honour was satisfied that on 23 April the appellant was concerned to prevent, if he could, the production of the handwritten memorandum and the typewritten memorandum on the following day. The advice he had been given by Mr. Lehane would, if honestly applied, have excluded from production all papers addressed to members of the executive committee. The appellant did not pass on that advice until he had ascertained that the Bank of America did not have the handwritten memorandum or the typewritten memorandum on their file. The conduct charged as contempt was not due to the solicitor's advice, but to a belief that the documents which the appellant wished to suppress could be safely extracted from the file held by Mr. Kuzumaki. Glass J.A. accordingly held that the guilty state of mind which the prosecution must show had been established. Moffitt P. and Hope J.A. added that the appellant, to serve private ends, had used Mr. Lehane's advice as a pretext to offer persuasion to Mr. Kuzumaki, and had deliberately misrepresented that advice. They said:
"In our view, under the pretext of passing on to Mr Kuzumaki what he was led to believe was genuine legal advice conscientiously obtained (the appellant) contrived to have kept from the Court documents which he wished suppressed in the interests of his employer. By leading Mr Kuzumaki to understand that his advices as to what to produce and what not to produce were in accordance with such legal advice, he contrived, in order to serve those interests, to have produced to the court a selection of documents which was not in conformity with any legal advice he had obtained." (at p255)

6. The argument of the respondent, which the Court of Appeal in substance accepted, was that the appellant wished to suppress the handwritten memorandum and the typewritten memorandum, so that the sale of the shares to Industrial Equity, which it was in the interest of Partnership Pacific to see completed, would not be jeopardized. Mr. Lehane's advice, if logically applied, would have meant that no documents prepared for the executive committee of Partnership Pacific need be produced, but if no such documents had been produced the plaintiffs might have been led to direct further subpoenas that would have covered the handwritten memorandum and the typewritten memorandum, whereas if some such documents were produced the plaintiffs might have been led to suppose that there were no others. Moreover, if the Bank of America were to produce the handwritten memorandum and the typewritten memorandum that might have led to embarrassment if the Bank of Tokyo had not produced those documents. For these reasons the appellant advised Mr. Kuzumaki not to produce the memoranda only when he had reason to believe that the Bank of America would not do so, and he failed to advise Mr. Kuzamaki that, consistently with Mr. Lehane's advice, he need not produce any documents sent to the executive committee of Partnership Pacific. (at p255)

7. There is one aspect of this theory that we find it difficult to accept. With all respect we doubt whether it was right to reject the appellant's version of the conversation he had with Mr. Kuzumaki on his return from Mr. Lehane's office. This is not an ordinary case of a conflict of testimony depending on credibility. The Court of Appeal did not see Mr. Kuzumaki in the witness box, and in any case his evidence did not necessarily contradict that of the appellant, for he did not remember whether the appellant referred to the handwritten memorandum and the typewritten memorandum. Moreover, the appellant's version seems to us to accord with the probabilities. If the appellant had any interest in the question whether the documents should or should not be produced, it was to ensure that they should not be produced. There was of course nothing that reflected adversely on Partnership Pacific in the documents themselves. However the officers of Partnership Pacific obviously wanted the sale of the shares to Industrial Equity to be completed; in the way the company would receive payment of the debt due to it by a debtor who had proved so unsatisfactory that Partnership Pacific was prepared to forego $1.5m in interest to be rid of him. The premature disclosure of the sale might have resulted in its cancellation. The appellant had himself suggested that he consult the solicitor, and the advice he had received, that the typewritten memorandum need not be produced, suited the interests of his employer, Partnership Pacific. He had really nothing to gain by refraining from passing on the advice until he had spoken to the Bank of America; the natural thing to do would have been to tell Mr. Kuzumaki that he was not obliged to produce the memoranda and then to have passed on the same advice to the Bank of America. Moreover, there is no evidence that he tried to discover whether the third shareholder, the Bank of New South Wales, had in its possession copies of the handwritten memorandum and the typewritten memorandum and was intending to produce them. There is no doubt that it was open to the Court of Appeal to find that the motive of the appellant in getting and passing on Mr. Lehane's advice was to ensure, in the interest of Partnership Pacific, that the documents be not produced. It must however be said that there seems to have been no apparent danger to Partnership Pacific in the production of the documents on 24 April, since the sale was in fact announced, as it was intended to be announced, on 23 April. Neverthless before the announcement was actually made it may have been thought wise to play safe. Further the Court of Appeal was entitled to find that the appellant intentionally refrained from telling Mr. Kuzumaki that the effect of Mr. Lehane's advice was that none of the documents sent by Partnership Pacific to the executive committee need be produced. If it mattered, we would not however be satisfied according to the criminal standard of proof that the appellant had passed on to Mr. Kuzumaki advice with regard to the production of the typewritten memorandum different from that which he had received from Mr. Lehane. (at p256)

8. If, however, all the findings of the Court of Appeal are accepted, it is nevertheless clear that the contempt as charged was not committed. It was an element of each charge that the appellant well knew that it was the duty of the Bank of Tokyo to produce the handwritten memorandum and the typewritten memorandum in answer to the subpoena (see charge 8, pars.(h) and (g); charge 9, pars. (d) and (c)). It was not proved that the appellant had any such knowledge; on the contrary, he had been advised by Mr. Lehane that the bank was not obliged to produce the typewritten memorandum, and the reason for this advice extended equally to the handwritten memorandum. The appellant had not the slightest reason to doubt the correctness of that advice. Indeed, as will be seen, the advice was correct. The members of the Court of Appeal in their reasons did not say that they found that this element in the charges was established. They relied, instead, on other matters, not alleged in the charges, namely that the appellant had dishonestly misrepresented, or at least had failed to pass on correctly, Mr. Lehane's advice, and that his motive in acting as he did was to keep the documents away from the court in the interest of Partnership Pacific. The charges were not amended to reflect the new basis on which the convictions were rested, and the formal order was that the appellant was guilty of the charges as set out in the statement of charges. Such a finding cannot stand: "no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him": Coward v. Stapleton [1953] HCA 48; (1953) 90 CLR 573, at pp 579-580 . (at p257)

9. Even if the charges had been, or were now to be, amended, the evidence would not establish that the appellant committed a contempt of court. The expression "contempt of court" is often popularly misunderstood. In a case such as the present, the offence consists not in affronting the dignity of the court, but in interfering with the due administration of the law: see Attorney-General v. Leveller Magazine (1979) AC 440, at p 459 . As Cussen J. said in In re Dunn; In re Aspinall (1906) VLR 493, at p 497 , the essence of the offence is "action or inaction amounting to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice, using that term in a broad sense". In the present case, the charges against the appellant are that he wilfully procured Mr. Kuzumaki or the Bank of Tokyo not to produce the handwritten memorandum or the typewritten memorandum on the return of the subpoena. On such a charge it seems to us essential to prove that the document should have been produced. It is no interference with the administration of justice that a person, not a party to the action, who has been served with a subpoena should do no more than the subpoena orders him to do. There is no reason why such a person should officiously produce documents which he has not been commanded to produce. Since that is so, it is no contempt to tell a person, correctly, that he is not obliged to produce a particular document, even if the person giving the advice has an interest that it be accepted. Such a situation cannot be compared with cases in which a person keeps a material witness out of the way to avoid service of a subpoena (see Clements v. Williams (1836) 2 Scott 814 , or attempts to dissuade someone intending, but not bound, to give evidence in a criminal matter from doing so (see R. v. Carroll (1913) VLR 380 , or destroys a document which he knows may be required to be produced. In such cases the act done is likely to interefere with the course of justice. In a case such as the present, where the document is left intact and in its existing custody, the administration of justice is not interfered with; if a subpoena is issued to the person who has the document requiring him to produce it, it can be produced. (at p258)

10. It was submitted on behalf of the respondent that conduct otherwise lawful can amount to a contempt of court if done with a particular intention. That is correct, but the intention must be to do something likely to interfere with the course of justice. Thus it may be lawful for one man to advise another to take a holiday in Brazil, but the giving of the advice may constitute a contempt of court if the advice is given for the purpose of keeping the witness out of the way to avoid service of a subpoena. It may be lawful to dismiss a servant or to deprive a man of his office in a trade union, but if this is done for the purpose of punishing him for having given evidence it is a contempt of court: Rowden v. Universities Co-operative Association Ltd. (1881) 71 LTJo 373 ; Attorney-General v. Butterworth (1963) 1 QB 696 . In those cases, the purpose, intention or motive of the act was to do the very thing that would interfere with the course of justice - to keep the witness out of the way or to victimize the witness. The words "purpose", "motive", "object" and "intention" are used interchangeably in the judgments in Attorney-General v. Butterworth and it is quite unnecessary for present purposes to distinguish between them; we shall use the word "intention" to cover motive as well. An intention to interfere with the administration of justice is not necessary to constitute a contempt; the critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important (Attorney-General v. Butterworth (1963) 1 QB at pp 725-726; and see at pp722-723 ; John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351, at p371 . A lawful act may constitute a contempt if done with the intention of interfering with the course of justice, but will not become a contempt simply because it was done to achieve some purpose or further some interest of the person doing it. For one person to advise another who has been served with a subpoena to refrain from producing a document which the person giving the advice rightly believes falls outside the description of documents contained in the subpoena and therefore need not be produced does not become a contempt because the person giving the advice wishes to achieve some lawful purpose of his own by ensuring that the documents are not produced. (at p259)

11. The question then is whether the handwritten memorandum or the typewritten memorandum is one of those documents described in the schedule to the subpoena. A subpoena to produce documents is an important means of establishing the facts in issue in litigation and thereby enabling justice to be done. However, it is an instrument which may be misused. It is not right that a subpoena addressed to a person who is not a party to the action should be in such wide and general terms that it requires the witness to make a "burdensome search for evidence at his own expense", to use the words of Page Wood V.C. in Lee v. Angas (1866) LR 2 Eq 59, at p 63 . To avoid putting a person who may have no interest in the suit to inconvenience and expense, a subpoena to produce documents must "specify with reasonable particularity the documents which are required to be produced": Commissioner for Railways v. Small (1938) 38 SR (NSW) 564, at p 573 . There is nothing in Pt 37 of the Supreme Court Rules (N.S.W.) that detracts from those salutory rules. The subpoena addressed to the Bank of Tokyo does not satisfy these tests; it is vague and general and appears to have been used as a means of discovery. Nevertheless, the bank was bound either to comply with it or to apply to the court to set it aside. But that did not mean that the bank had any legal, or for that matter moral, obligation to produce documents that did not come within the description contained in the schedule. (at p259)

12. The schedule to the subpoena describes the documents by reference to the persons to and from whom they were sent, and by reference to their subject matter. The description of the subject matter of the documents is quite sufficient; they must refer to Marra or to Yunghanns. However, to come within the description, the communications must have been "to and from" the persons mentioned in pars. (a) to (d). The subpoena therefore covers a communication to, e.g., an officer of Partnership Pacific, or from such an officer, but it does not say expressly from or to whom such communication must have been sent. It cannot have been intended that the Bank of Tokyo was required to produce every document recording a communication from an officer of Partnership Pacific to anyone in the world referring to the persons described in the numbered paragraphs of the schedule, whether or not the bank had ever received such communication. The intention of the subpoena must have been to require the bank to produce only those documents which had been sent to or from the bank; indeed the words "Bank of Tokyo" in the heading of the schedule can have no other purpose than to indicate the connexion of the bank with the documents. In other words, the subpoena describes communications between the bank and the persons named in the lettered paragraphs with reference to the person named in the numbered paragraphs. The handwritten memorandum and the typewritten memorandum do not answer that description. Each of those documents was from an officer of Partnership Pacific, and to a member of the executive committee, but neither was a communication to or from the bank. Neither document therefore was one of those described in the schedule. (at p260)

13. The proper conclusion is therefore that the appellant, rightly believing that the documents were not required to be produced, persuaded Mr. Kuzumaki not to produce them. The fact that it suited the appellant that they should not be produced did not convert his conduct into a contempt. Nor did the fact that he did not take steps to prevent the production of other documents which also did not come within the schedule have that result; their production was unnecessary, but the omission of the appellant to take any active steps to prevent their production did not obstruct or interfere with the administration of justice. In the argument on behalf of the respondent, reliance was placed on the submission that the appellant was meddlesome in getting Mr. Lehane's advice, and that he was guilty of misrepresentation in transmitting Mr. Lehane's advice without explaining that, in accordance with the reason on what it was based, it was unnecessary to produce other documents. The fact that the appellant had advised Mr. Kuzumaki that the documents need not be produced when that was not the question on which Mr. Kuzumaki had sought his assistance may support the view that the appellant was anxious that the documents should not be produced but is not otherwise material. If it be considered that the appellant suppressed part of Mr. Lehane's advice, and thereby misrepresented it, the misrepresentation was not made to the court or in the course of performing any duty required of the appellant by the court, and it did not result, and was not intended to result, in any failure fully to comply with the subpoena. What the appellant sought, and temporarily achieved, was to prevent the production of two memoranda that were not required to be produced; if, in addition, he sought to create the impression that those documents did not exist, that did not interfere with the due administration of justice, for the only legitimate purpose of the subpoena was to secure the production of the documents specified in it. The conduct of the appellant may be open to criticism, but it did not amount to a contempt of court. (at p261)

14. For these reasons we are of the opinion that the appellant was wrongly convicted of contempt of court and we would allow the appeal. (at p261)

ORDER

Appeal allowed with costs.

Order of the Supreme Court of New South Wales (Court of Appeal) varied as follows:
(a) Paragraph three of the said order is set aside and in lieu thereof it is ordered that the appellant be found not guilty of the eighth and ninth charges set out in the statement of charges.
(b) Paragraph seven of the said order is set aside.
(c) Paragraph nine of the said order is varied by deleting the words "and Christopher Campbell Lane each" and by adding to that paragraph the following words "and the Registrar in Equity pay to Christopher Campbell Lane his costs."