Nor Fer O1isTRisuTiont - a e o 3 IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. G82 of 1979 ) GENERAL DIVISION ) BETWEEN: SUNIBRITE PRODUCTS (AUST.) PTY. LIMITED Applicant ID: JABUNA PTY. LIMITED Respondent JUDGE MAKING ORDER: Bowen C.J. DATE OF ORDER: 8 February 1980. WHERE MADE: Sydney.ORDE THE COURT ORDERS THAT the Respondent pay to the Applicant its costs of the motion as between solicitor and client. IN THE FEDERAL CCURT OF AUSTRALIA) ) NEW SOUTH WALES DISTPICT RECISTRY) No. G82 of 1979 ) GENEPAL DIVISION ) BETWEEN : + SUNIBRITE PRODUCTS (AUST.) PTY. LIMITED Applicant AND: JABUNA PTY. LIMITED Respondent CORAM: Bowen C.J. 8 February 1980. REASONS FOR JUDGMENT BOWEN C.J.: This is a motion by Sunibrite Products (Aust.) Pty. Limited (hereafter called "Sunibrite") pursvant to Order 40 of the Federal Court Rules against Jabuna Pty. Limited (hereafter called "Jabuna") for an order that Jabuna be punished for contempt of Court. On 20 December 1979 Sunibrite commenced proceedings against Jabuna seeking certain injunctions. The matter came before the Court on 28 December 1979 when Jabuna, without prejudice and without admissions, gave certain undertakings which, it was noted, were to operate until 3 January 1980 or further order. These included an undertaking to the Court in the following terms: "That it will place on the front of each display box hereafter sold over an area being the whole of the exposed area at the lower front of the display box a sticker covering the printing saying "This 1s not a Sunibrite Product" and that it will endeavour to place a similar sticker on boxes in retail outlets which may come to its attention in the course of deliveries of its products to those retail outlets." The matter was adjourned to 3 January 1980. When it was again before the Court on that day, certain orders were made against Jabuna, one of which was to operate after 30 January 1980 and certain undertakings by Jabuna were given to the Court. It was noted, as undertaking (a), that the existing undertaking given on 28 December 1979 was continued up to and included 30,January 1980. It was further noted that Jabuna gave to the Court an undertaking in the following terms: "(b) The Respondent undertakes to the Court not prior to 30 January 1980 to permit any employee or agent of the Respondent to sell any of the Respondent's products complained of to any outlet or shop which was an existing customer of the Applicant for its muesli slices or yoghurt pies as at December 1979 unless the Respondent labels the products with a label or printed words clearly saying "This is not a Sunibrite Product". The order of the Court made on 3 January 1980 was duly entered on 9 January 1980. On 11 January 1980 the motion for contempt was issued by Sunibrite against Jabuna. The motion had subscribed to it a statement of charge as required by Order 40 r.6 of the Federaj) Court Rules. This statement of charge alleged that Jabuna was guilty of contempt in that it had failed to comply with undertakings given by it on 28 December 1979 and 3 January 1980 in the following respects, namely: "(a) it has not placed on the front of each display box sold after 28 December 1979 a sticker saying "This is not a Sunibrite Product" covering the printing over the whole of the exposed area at the lower front of such box; and (b) it has permitted its employees or agents to sell certain of its products to outlets or shops which were existing customers of the Applicant for its muesli slices or yoghurt pies as at December 1979 without having labelled the products so soJd with a label or printed words clearly saying "This is not a Sunibrite Product"." Evidence was given that the notice of motion and three affidavits in support were served on Jabuna on 14 January 1980 by being left at the registered office at 12.25 p.m. At the same time, a document containing the undertakings given on 28 December 1979 and 3 January 1980 was also left at the registered office. Both undertakings had endorsed upon them a statement notifying Jabuna that in the event of its failing to observe the undertakings given by it to the Court as set out, it might be liable to be punished for contempt of Court by sequestration or fine or both. Al] documents were pushed under the door of the premises which were at that time not open for business. The evidence given upon the hearing of the motion, which was relied upon by Sunibrite to establish the alleged breaches, dealt mainly with goods of Jabuna sold to three shops which were customers of Sunibrite as at December 1979: l. A delicatessen shop at 668 New South Head Road Rose Bay conducted by Mr. Henry Perl; 2. A delicatessen shop known as "Rose Bay Bread Shop" at 517 Old South Head Road Rose Bay conducted by Mr. Stan Hatkis; 3. A milk bar known as "The Orange Spot", 214 Pitt Street Sydney conducted by Mr. Maher Garas. Before dealing with the evidence relating to Jabuna products sold to these shops, JI should deal with a preliminary guestion which was raised and argued by Counsel for Jabuna that there had been a failure by Sunibrite to comply with Order 40 r.13(3) of the Federal Court Rules and a submission that the motion should in consequence be dismissed. Order 40 r.13(3) provides: "13.(3) Where - (a) a proceeding for contempt is commenced by a party for the failure of the accused person to observe an undertaking to the Court; and (b) the undertaking was not given to the Court by the accused in person, or if the accused person was a corporation or organisation, by a responsible officer of the corporation or organisation in person, a document, containing the terms of the undertaking shall be personally served on the accused person endorsed with a statement that in the event of his failing to observe the undertaking, the person served may be liable to be punished for contempt of court by imprisonment or fine or both, or in the case of a corporation or organisation, by sequestration or fine or both." It was submitted that the undertaking with the endorsed statement served on 14 January 1980 had not been "personally served". Reference was made to Order 7 r.2(1)(b) which provides: "2.(1) Personal service of a document is effected on - (a)... (b) a corporation or organisation - by leaving a , copy of the focument at the registered office of the corporation or organisation or, if there is no registered office at the principal place of business or the principal office with some person apparently an officer of or in the service of the corporation or organisation and apparently of or above the age of sixteen years; and (c) ..." It was argued that the requirement of leaving the document with some person apparently an officer of or in the service of the corporation applied both to the case where there is a registered office and the case where there is no registered office. I do not accept this argument. I read Order 7 r.2(1)(b) as drawing a distinction between the case where there is a registered office, in which case ut is sufficient to leave it at the registered office, and the case where there is no registered office when the proccdwe of delivering it to an individual as described in the latter part of paragraph 2(1)(b) applies (cf. Companies Act 1961 (N.S.W.) ss.111 and 362). It was further argued by Counsel for Jabuna that Sunibrite could rely only on breaches alleged to have occurred before the date of the motion, namely 11 January 1980 and this contention was not contested by Counsel for Sunibrite. However, Counsel for Jabuna then argued that because there was no compliance with Order 40 r.13(3) prior to commencement of the proceedings on 11 January 1980 the Court had ao jurisdiction to deal with the matter. Alternatively, it was argned that, as a matter of discretion, the Court would not punish for a contempt alleged to have occurred in the absence of compliance with the Rules. In my opinion, Order 40 r.13(3) does not go to jurisdiction. That this is so, I conclude from its wording and from the fact that the Court hes power to 4ispense with compliance with its Rules (Order 1 r.8). However, I agree with the submission that the question of compliance with Order 40 r.13(3) and the question whether any alleged breach relied upon occurred hefore or after service of the Gocuments required by Order 40 r.13(3) goes to discretion. The reason behind the Rule is plain enough. Where the undertaking has not been given personally, particularly where it requires positive acts of compliance, it is most desirable that there should have been brought to the attention of the person sought to be punished for contempt, the precise terms of the undertaking and notice of the consequences of non-compliance (Ronson Products Limited v. Ronson Furniture Lamited [1966] Ch. 603; Trade Practices Commission v. C.G. Smith Pty. Liwited [1978] A.T.P.R. 17,624 at p.17,628). Where this has not been done the Court, depending on the circumstances of the particular case, will be reluctant to exercise its power to punish for contempt. I shall return to this question later. The next question which arises is whether any breach of either undertaking (a) or (b) has been established. Some argument took place as to the standard of proof required. Contempt constituted by breach of an order of the Court or of an undertaking given to the Court is classed as a civil contempt and is contrasted with those contempts which take place in the face of the Court or outside the Court which are classed as criminal contempts (Consolidated Press Limited v. McRae (1955) 93 C.L.R. 325 at p.333; Australian Consolidated Press Limited v. Morgan (1964) 39 A.L.J.R. 32 at pp.38 et seq: Borrie and Low, The Law of Contempt, 1975, pp.314 et seq). In cases of criminal] contempt, proof is reguired beyond reasonable doubt. In cases of civil contempt, because the consequences may involve fine or imprisonment or in the case of a corporation fire or sequestration, proof of the utmost cogency is also required (Clifford v. Middleton [1974] V.R. 737 at p.739; Fullerton v. Cardiner [1977] Supreme Court Procedure, Practice Decisions, p.18; Borrie and Low, supra, pp.3]9 et seu). I turn now to the evidence in relation to products sold by Jabuna to the three shops conducted by Mr. Perl, Mr. Hatkis and Mr. Garas. In the case of Mr. Perl, the affidavit evidence was that a display box containing nucsl1 slices was sold by Jabuna to Mr. Perl on 8 January 1980. The box and slices were tendered in evidence. The bo. @id not have placed upon the front of it any sticker as renuired by the undertaking given on 28 DPecerber 19379 which was continued on 3 January 1980. The mucsli slices sold to Mr. Perl were wrapped in cellophane and had some printed letters upon the cellophare wrapping. In the case of one muesli slice, the full wording was legible. It read "This is not a Sunibrite Product", which were the words required by undertaking (h). In the case of the other muesli slices, either the words had not all been clearly reproduced by the method of printing adopted or were to a degree obscured by folds in the paper or were difficult to read because of the nature of the wrapping and the nature of the printing. While some attempt had been made to comply with the undertaking, the result achieved was unsatisfactory, heving regard to the requirement in the undertaking that Jabuna label its product with a label or printed words "clearly saying" "This is not a Sunibrite Product". I feel bound to conelude that this was not "clearly said" on the products tendered in evidence. It remains to consider whether the display box and mues]i slices in question were sold to Mr. Perl by Jabuna after the relevant undertakings were given. Clearly they were sold before the commencement of proceedings. Mr. Perl was examined in the witness box. After hearing Mr. Perl I am unable in my mind to exclude the possibility that the display box was one sold to him before 28 December 1979. Some evidence was tendered in relation to the sale of display boxes after 11 January 1980 without the reguisite words upon them. These instances occurring after commencement of the proceedings were not relied upon to establish breach. However, 1t was submitted that this evidence strengthened the conclusion I was asked to draw that the display box sold to Mr. Perl was sold without the requisite wording after the giving of undertaking (4). I do not consider that evidence sufficient to remove the doubt J have mentioned. Having regard to the staneard of proof, required in these matters, I conclude that breach of undertaking (a) in respect ef the display krox has not been made out. In the case of the muesli slices, because clearly an attempt has been made to place upon the foods the pristed words, which I have mentioned, J am satisfied they were goods which were sold after the relevant undertaking (b) was given on 3 January 1980. I conclude, therefore, there was a breach of undertaking (b). As to the'sale to Mr. Hatkis, the evidence was that a display box containing muesli slices had been sold to Mr. HNatkis not later than 8 January J]980. there was no direct evidence as to how much earlicr than that date it had been sold to him. However, one muesli slice from the box was tendered in evidence. It had on it in red print the letters "Sun". There was no evidence when this was placed on the product or whether a fuller message had at any time appeared upon it. I was asked by Counsel for Sunibrite to infer that it was done after 3 January 1980 when the undertaking relating to placing these words on the product was given. J was asked by Counsel for Jabvna to consider as a possible rational explanation that the full statement regusred by the undertaking had at first appeared upon the product but had been smudged or smeared by subsequent handling to a point where only the word "Sun" remained. I find that the proof of breach in this instance does not reach the standard required for this type of procecding. I am not prepared to hold that there has been a breach in the case of this particular product. As to the sale of the product to Mr. Garas, there was tendered in evidence a Sunibrite display box containing Jabuna's muesli slices which were purchased from Mr. Garas by Mr. Glass, the Managing Director of Sunibrite on 8 January 1980. Mr. Garas gave evidence by affidavit that these were sold to him by Jabuna during the preceding week, that is the week ending 4 January 1980. It was not clear whether they were sold to him before or after 3 January 1980 when the relevant undeitaking was given. This was a case where some of the products contained in the @Gisplay box had red printing on them but it was illegible and one item had no printing on it at all and one item had on it black printing which was obscured by the folding but which, if carefully studied, could be read as "This is not a Sunibrite Product". Mr. Garas was not examined in the witness box. I regard this evidence as unsatisfactory in relation to the date of sale of the box and the illegible froducts. T am not prepared to hold that breach jn respect of these guods has been established to the necessary standard of proof. In the result, there has been proved a breech of undertaking (b) in respect of the Jabuna muesli slices sold to Mr. Perl. The breach has occurred in circumstances where an attempt has been made to comply with undertaking (kr) but the attempt has not been adequate. It appcars to me that the whole sense of the undertaking given, when it required that Jabuna label its products with a label or pitinted words "clearly saying" "This 1s not a Sunibrite Product", was that this should be evident to the ordinary purchaser of the goods. What 3s required for compliance with the undertaking is a label or printed words which effectively convey to a purchaser the required message. It becomes necessary, therefore, to deal with the question of discretion raised by the circumstance that the Order 40 r.13(3) requires service of the undertaking and the notice of the consequences of non-compliance upon the person accused of contempt. At the time of the breach of undertaking (b) which 1s established hy the evidence, this notice had not been given, although it was subseauently given. This 1s not one of the cases referred to in Order 40 x.13(3) where the undertaking has becn given to the Court by the accused in person or by a responsible officer of the corporation in person. On the other hand, it must be said that present in Court when the undertaking was given was Mr. Dotch, a director of Jabuna and also Mr. Murray, another director of Jabuna, who was the solicitor for Jabuna instructing in the matter so that the Company was aware of the undertaking given at the time and of the possible consequences of non-compliance. Having regard to these facts and to the general nature of the breach which has been proved, 1t appears to me that it will be sufficient to mark the Court's disenproval of the failure to comply in a proper way with the undertaking if Jabuna is ordered to pay Sunibrite's costs as between solicitor and client of this motion. The order of the Court will be that Jabuna pay to Sunibrite its costs of the motion as between solicitor and client. 5 olpuens Ieertify thal thie ana the cleveus dias Peed ALM Pees too ad Tue Peas as fer dae £02 Naged hewen | 5 Mme tin the Clhaer cud, © oF Sf / ' / , \ / Assnesphe/ ALL t LY ' Y \ Cow ( snA8 } pated: £2 fO J ne cee eee ee A Lt CCAR, eepy of Lhe a e sof his Eoucw J -3|80 IN _THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. G82 of 1979 ) GENERAL DIVISION ) BETWEEN: SUNIBRTTE PRODUCTS (AUST.) PTY. Applicant AND: JABUNA PTY. LIMITED Respondent JUDGE MAKING ORDER: Bowen C.J. DATE OF ORDER: 8 February 1980. WHERE MADE: Sydney. ORDER THE COURT ORDERS THAT the Respondent pay to the Applicant its costs of the motion as between solicitor and client. IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALFS DISTRICT REGISTRY) No. G82 of 1979 ) GENERAL DIVISION ) BETWEEN: ; SUNIBRITF PRODUCTS (AUST.) PTY. LIMITED Applicant AND: JABUNA PTY. IJIMITED Respondent CORAM: Bowen C.J. 8 February 1980. REASONS FOR JUDGMENT BOWEN C.J.: This is a motion by Sunibrite Products (Aust.) Pty. Limited (hereafter called "Sunibrite") pursuant to Order 40 of the Federal Court Rules against Jabuna Pty. Limited (hereafter called ""Jabuna") for an order that Jabuna be punished for contempt of Court. On 20 December 1979 Sunibrite commenced proceedings against Jabuna seeking certain injunctions. The matter came before the Court on 28 December 1979 when Jabuna, without prejudice and without admissions, gave certain undertakings which, it was noted, were to operate until 3 January 1980 or further order. These included an undertaking to the Court in the following terms: "That it will place on the front of each display box hereafter sold over an area being the whole of the exposed area at the lower front of the display box a sticker covering the printing saying "This is not a Sunibrite Product" and that it will endeavour to place a similar sticker on boxes in retail outlets which may come to its attention in the course of deliveries of its products to those retail outlets." The matter was adjourned to 3 January 1980. When it was again before the Court on that day, certain orders were made against Jabuna, one of which was to operate after 30 January 1980 and certain undertakings by Jabuna were given to the Court. It was noted, as undertaking (a), that the existing undertaking given on 28 December 1979 was continued up to and included 30 January 1980. It was further noted that Jabuna gave to the Court an underteking in the following terms: "(b) The Respondent undertakes to the Court not prior to 30 January 1980 to permit any employee or agent of the Respondent to sell any of the Respondent's products complained of to any outlet or shop which was an existing customer of the Applicant for its muesli slices or yoghurt pies as at December 1979 unless the Respondent labels the products with a label or printed words clearly saying "This is not a Sunibrite Product". The order of the Court made on 3 January 1980 was duly entered on 9 January 1980. On 13 January 1980 the motion for contempt was issued by Sunibrite against Jabuna. The motion had subscribed to it a statement of charge as required by Order 40 r.6 of the Federal Court Rules. This statement of charge alleged that Jabuna was guilty of contempt in that it had failed to comply with undertakings given by it on 28 December 1979 and 3 January 1980 in the following respects, namely: "(a) it has not placed on the front of each display box sold after 28 December 1979 a sticker saying "This is not a Sunibrite Product" covering the printing over the whole of the exposed area at the lower front of such box; and (b) it has permitted its employees or agents to sell certain of its products to outlets or shops which were existing customers of the Applicant for its muesli slices or yoghurt Pies as at December 1979 without having labelled the products so sold with a label or printed words clearly saying "This is not a Sunibrite Product"." Evidence was given that the notice of motion and three affidavits in support were served on Jabuna on 14 January 1980 by being left at the registered office at 12.25 p.m. At the same time, a document containing the undertakings given on 28 December 1979 and 3 January 1980 was also left at the registered office. Both undertakings had endorsed upon them a statement notifying Jabuna that in the event of its failing to observe the undertakings given by it to the Court as set out, it might be liable to be punished for contempt of Court by sequestration or fine or both. All documents were pushed under the door of the premises which were at that time not open for business. The evidence given upon the hearing of the motion, which was relied upon by Sunibrite to establish the alleged breaches, @Gealt mainly with goods of Jabuna sold to three shops which were customers of Sunibrite as at Pecember 1979: 1. A delicatessen shop at 668 New South Head Road Rose Bay conducted by Mr. Henry Perl; 2. A delicatessen shop known as "Rose Bay Bread Shop" at 517 O1d South Fiead Road Rose Bay conducted by Mr. Stan Hatkis; 3. A milk bar known as "The Orange Spot", 214 Pitt Street Sydney conducted by Mr. Maher Garas. Before dealing with the evidence relating to Jdabuna products sold to these shops, I should deal with a preliminary question which was raised and argued by Counsel for Jabuna that there had been a failure by Sunibrite to comply with Order 40 r.13(3) of the Federal Court Rules and a submission that the motion should in consequence be dismissed. Order 40 r.13(3) provides: "13.(3) Where - (a) a proceeding for contempt is commenced by a party for the failure of the accused person to observe an undertaking to the Court; and (b) the undertaking was not given to the Court by the accused in person, or if the accused person was a corporation or organisation, by a responsible officer of the corporation or organisation in person, a document, containing the terms of the undertaking shall be personally served on the accused person endorsed with a statement that in the event of his failing to observe the undertaking, the person served may be liable to be punished for contempt of court by imprisonment or fine or both, or in the case of a corporation or organisation, by sequestration or fine or both." It was submitted that the undertaking with the endorsed statement served on 14 January 1980 had not been "personally served". Reference was made to Order 7 r.2(])(b) which provides: "2.(1) Personal service of a document is effected on - (a)... (b) a corporation or organisation ~ by leaving a , copy of the focument at the registered office of the corporation or organisation or, if there is no registered office at the principal place of business or the principal office with some person apparently an officer of or in the service of the corporation or organisation and apparently of or above the age of sixteen years; and {c) ..." It was argued that the requirement of leaving the document with some person apparently an officer of or in the service of the corporation applied both to the case where there is a registered office and the case where there is no registered office. I do not accept this argument. J read Order 7 r.2(1)(b) as drawing a distinction between the case where there is a registered office, an which case it 31s sufficient to leave it at the registered office, and the case where there is no registered office when the procedure of delivering it to an individual as described in the latter part of paragraph 2(1)(b) applies (cf. Companies Act 196] (N.S.W.) ss.1ll and 362). It was further argued by Counsel for Jabuna that Sunibrite could rely only on breachee alleged to have occurred before the date of the motion, namely 11 January 1980 and this contention was not contested by Counsel for Sunibrite. However, Counsel for Jabuna then argued thot because there was no compliance with Order 40 r.13(3) prior to commencement of the proceedings on J]1 January 19£0 the Court had no jurisdiction to deal with the matter. Alternatively, it was argued that, as a matter of discretion, the Court would not punish for ai contempt alleged to have occurred in the absence of compliance with the Rules. In my opinion, Order 40 r.13(3) does not go to jurisdiction. That this is so, I conclude from its wording and from the fact that the Court has power to dispense with compliance with its Rules (Order 1 r.8). Wowever, I agree with the submission that the question of compliance with Order 40 r.13(3) and the question whether any alleged breach relied upon occurred before or after service of the documents required by Order 40 r.13(3) goes to discretion. The reason behind the Rule is plain cnough. Where the undertaking has not been given personally, particularly where it requires positive acts of compliance, it is most desirable that there should have been brought to the attention of the person sought to be punished for contempt, the precise terms of the undertaking and notice of the consequences of non-compliance (Ronson Products Limited v. Ronson Furniture Limited [1966] Ch. 603; Trade Practices Commission v. C.G. Smith Pty. Liwited [1978] A.T.P.R. 17,624 at p.J7,628). Where this has not been done the Court, depending on the circumstances of the particular case, will be reluctant to exercise its power to punish for contempt. I shall return to this question later. The next question which arises is whether any breach of either undertaking (a) or (b) has been established. Some argument took place as to the standard of proof required. Contempt constituted by breach of an order of the Court or of an undertaking given to the Court is classed as a civil contempt and is contrasted with those contempts which take place in the face of the Court or outside the Court which are classed as criminal contempts (Consolidated Press Limitec v. McRae (1955) 93 C.L.R. 325 at p.333; Avstralian Consolideted Press Limited v. Morgan (1964) 39 A.L.J.R. 32 at pp.38 et seq; Borrie and Low, The Law of Contempt, 1975, pp.314 et seg). In cases of criminal contempt, proof is reguired beyond reasonable doubt. In cases of civil contempt, because the consequences may involve fine or imprisonment or in the case of a corporation fine or sequestration, proof of the utmost cogency is also required (Clifford v. Middleton [1974] V.R. 737 at p.739; Fullerton Vv. Cardiner [1977] Supreme Court Procedure, Practice Decisions, p.18; Borric and Low, supra, pp.319 et seg). I turn now to the evidence in relation to products sold by Jabuna to the three shops conducted by Mr. Perl, Mr. Hatkis and Mr. Garas. In the case of Mr. Perl, the affidavit evidence was that a display box containing mucsli slices was sold by Jabuna to Mr. Perl on 8 January 1°80. The box and slices were tendered in evidence. The box did not have placed upon the front of it any sticker as reauired by the undertaking given on 28 December 1979 which was continued on 3 January J980. The muesli sJices sold to Mr. Perl were wrapped in cellophane and had some printed letters upon the cellophane wrapping. In the case of one muesli slice, the full wording was legible. It read "This is not a Sunibrite Product", which were the words required by undertaking (h). Tn the case of the other muesli slices, either the words hac not all been clearly reproduced by the method of prin*ing adopted or were to a degree obscured bry folds in the paper or were difficult to read because of the nature of the wrapping and the nature of the printing. While some attempt had been made to comply with the undertaking, the result achieved was unsatisfactory, having regard to the requirement in the undertaking that Jabuna label its product with a label or printed words "clearly saying" "This 1s not a Sunibrite Product". I feel bound to conclude that this was not "clearly said" on the products tendered in evidence. It remains to consider whether the display box and muesli slices in question were sold to Mr. Perl by Jabuna after the relevant undertakings were given. Clearly they were sold before the commencement of proceedings. Mr. Perl was examined in the witness box. After hearing Mi. Perl I am unable in my mind to exclude the possibility that the display box was one sold to him before 28 December 1979. Some evidence was tendered in relation to the sale of display boxes after 1] January 1980 without the requisite words upon them. These instances occurring after commencement of the proceedings were not relicd upon to establish breach. However, it was submitted that this evidence strengthened the conclusion ] was asked to draw that the display box scold to Mr. Perl was sold withont the requisite wording after the giving of undertaking (a). I do not consider that evidence sufficient to remove the doubt J have mentioned. Having regard to the standard of proof, required in these matters, I conclude that breach of undertaking (a) in respect of the display box has not been made out. In the case of the muesli slices, because clearly an attempt has been made to place upon the foods the printed words, which I have mentioned, I am satisfied they were goods which were sold after the relevant undertaking (b) was - 10 =- given on 3 January 1980. I conclude, therefore, there was a breach of undertaking (b). As to the''sale to Mr. Hatkis, the evidence was that a display box containing muesli slices had been sold tio Mr. Hatkis not later than 8 January 1980. There was no direct evidence as to how much earlier than that date it had been sold to him. However, one muesli slice from the box was tendered in evidence. It had on it in red print the letters "Sun". There was no evidence when this was placed on the product or whether a fuller message had at any time appeared upon it. I was asked by Counsel for Sunihrite to infer that it was done after 3 January 1980 when the undertaking relating to placing these words on the product was given. IT was asked by Counsel for Jabuna to consider as a possible rational explanaticn that the full statement required by the undertaking had et first appeared upon the preduct but had been smudged or smeared by subsequent handjJing to a point where only the word "Sun" remained. I find that the proof of breach in this instance does not reach the standard required for this type of proceeding. I am not prepared to hold that there has been a breach in the case of this particular product. As to the sale of the product to Mr. Garas, there was tendered in evidence a Sunibrite display box containing Jabuna's muesli slices which were purchased from Mr. Garas by Mr. Glass, the Managing Director of Sunibrite on 8 January 1980. Mr. Garas gave evidence by affidavit that ve re these were sold to him by Jabuna during the preceding week, that is the week ending 4 January 1980. It was not clear whether they were sold to him before or after 3 January 1980 when the relevant undertaking was given. This was a case where some of the products contained in the display box had red printing on them but it was jllegible and one item had no printing on it at all and one item had on it black printing which was obscured by the folding but which, if carefully studied, could be read as "This is not a Sunibrite Product". Mr. Caras was not examined in the witness hox. T regard this evidence as unsatisfactory in relation to the date of sale of the box and the illegible products. I am not prepared to hold thet breach in respect of these goods has been established to the necessary standard of procf. In the result, there has been proved a breach of undertaking (b) in respect of the Jabuna muesli slices sold to Mr. Perl. The breach has occurred in circumstances where an attempt has been made to comply with undertaking (b) but the attempt has not been adequate. It appears to me that the whole sense of the undertaking given, when it required that Jabuna label its products with a label or printed words "clearly saying" "This 1s not a Sunibrite Product", was that this should be evident to the ordinary purchaser of the goods. What is required for compliance with the undertaking is a label or printed words which effectively convey to a purchaser the required message. It becomes necessary, therefore, to deal with the question of discretion raised by the circumstance that the Order 40 r.13(3) requires service of the undertaking and the notice of the consequences of non-compliunce upon the person accused of contempt. At the time of the breach of undertaking (b) which is established by the evidence, this notice had not been given, although 1t was subsequently given. This is not one of the cases referred to in Order 49 r.13(3) where the undertaking has been given to the Court bv the accused in person or by a responsible officer of the corporation in person. On the other hand, it must be said that present in Court when the undertaking was qiven was Mr. Dotch, a director of Jabuna and also Mr. Murray, another director of Jabuna, who was the solicitor for dabuna anstructing in the matter so that the Company was aware of the undertaking given at the tire and of the possible consequences of non-compliance. Having regard to these facts and to the general natrre of the breach which has been proved, it appcars to me that it will be sufficient to mark the Court's Gisapproval of the failure to comply in a proper way with the undertaking if Jabuna is ordered to pay Sunibrice's costs as between solicitor and client of this motion. The order of the Court will be that Jabuna pay to Sunibrite its costs of the motion as between solicitor and client. ——— '4 . . atypst bey I certify that this and the dlevew 3 , PTECeECiny ye mew ae a true ey ol ae Lear tas dor at ete Pete rot hrs fonou: ' se Sacro. Bowes the Chact gudige, © ze higet Lowen . tr see me = ee