JUDGMENT No. «232 IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG NO. 194 OF 1984 ) ) GENERAL DIVISION °° Between: TAITO (AUSTRALIA) PTY. LTD. and TAITO CORPORATION (Applicants) E EASTERN MICRO ELECTRONICS PITY. LTD. JOSEPH LAZAR and MAZZ ENTERPRISES (AUST- RALTA) PTY. LTD. (Respondents) Coram: Smithers J. 15 October 1984 Before the Court are two motions by the applicant seeking punishment of the second respondent (Mr. Lazar) for alleged contempts of Court in respect of conduct contravening orders made by Sweeney J. on 4 July 1984 and by Woodward J. on 18 July 1984 and 26 July 1984. The motions are brought in proceedings commenced by the applicants.in applications filed on 2 July 1984 in which they sought relief against the respondents in respect of alleged wrongful conduct on their part in and about their trading in certain amusement machines. The applicants' complaint was that by selling and otherwise dealing in the machines the respondents infringed their copyright in literary works 'constituting an <integral- part of the machines. The applicants sought injunctions restraining the respondents whether by themselves, their servants, agents or howsoever from: (i) selling, renting or dealing in amusement machines of the kind known as "TX-1" bearing the insignia thereon - Tazmi; (ii) infringing the applicants' copyright in the said amusement machines; {iii) engaging in conduct which was misleading or deceptive by inducing or creating a belief that the firstnamed respondent is the only person importing or entitled to import the said amusement machines into Australia or the only person importing or entitled to import the said amusement machines into Victoria; (iv) engaging in conduct which is misleading or __.:=2.:.: deceptive or likely to mislead or deceive any person by inducing or creating a belief that the firstnamed respondent is entitled -: to sell, let on hire or by way of trade offer or expose for sale or hire or by way of trade exhibit in public the said amusement machines; (vw) parting with power, possession, custody or control (otherwise than to the Applicants) of the said amusement machines and other relief. The machines in question are computerised amusement machines. The predominant commercial use of those machines in the hands of their owners was to locate them in amusement parlours, milk bars or other places where people congregate so that they are available to those attending such establishments for the playing of games. The players place coins being the fee for playing into a set in the machine. From time to time the owner of the machine collects from the machines the proceeds from the playing of the machine and they are shared between the owner of the machine and the proprietor of the amusement establishment. On 4 July 1984 a motion by the applicants seeking interlocutory relief was granted and various orders were made in the presence of counsel for the applicants and the solicitor for. the then respondents, namely, Eastern Micro Electronics Pty. Ltd. (EME) and Mr. Lazar. At the conclusion of the hearing on that day the learned Judge made orders including: "The following interlocutory injunctions go until the hearing and determination of the application or until further order restraining the respondents whether by themselves, their servants or agents or howsoever from: (4) (ii) (LiL) (iv) 3.(i) (ii) (111) selling, hiring out or encumbering amusement machines of the -kind known 'TxX-1- and bearing the insignia TX-1 and the name Tazmi; infringing the applicants copyright in the said machines; engaging in conduct which is misleading or deceptive or likely to mislead or deceive any person by inducing or creating a belief that the firstnamed respondent is the only person importing or entitled to import the said amusement machines into Australia or the only person importing or entitled to import the said machines into Victoria; engaging in conduct which is misleading or deceptive or likely to mislead or deceive any persons by inducing or creating a belief that the first named respondent is entitled to sell, let on hire or by way of trade, offer for sale or hire or by way of trade exhibit in public the said amusement machine. parting with power, possession, custody or control (otherwise than to the Applicants) of the said amusement Machines or any components or parts therefor, embodying any reproduction of any substantial part of the computer programme contained within the main control panel of the said amusement Machines and any documentation designed for use with any such reproduction; selling, disposing of, destroying, altering or concealing any such item as is referred to in sub-paragraph (i) above; parting with power, possession, custody or control (otherwise than to the Applicants) or hiding, defacing, altering or destroying any documents (which expression in this Order includes records in magnetic or other computer readable form) relating to the importation, acquisition, distribution, sale or hire of any such item referred to; 4. aoe 5. That the firstnamed respondent by a director do upon Affidavit to be filed and served on the solicitors of the applicants within seven days of this date disclose - : bras (a) the whereabouts of all the said amusement machines and the documents referred to in paragraph 3 of this Order; (b) (i) the names and addresses of the person or persons from whom the firstnamed Respondent has obtained any ef the said amusement machines or documents referred to in paragraph 3 of this Order; (ii) the names and addresses of the person or persons to whom the firstnamed respondent has supplied any of the said amusement machines prior to the service of this Order. 6. The respondents do within 24 hours of service of a copy of this order deliver up or cause to be delivered up into the custody of the Applicants' solicitors all of the said amusement machines and the documents referred to in paragraph 3 of this Order. 7. Liberty be reserved generally to any party to apply on not less than 24 hours' notice." On 5 July 1984 a sealed copy of the order made was served on Mr. Lazar personally. The copy order contained an endorsement to the effect that if the person to whom it was directed disobeyed the order he might be committed to prison. On 18 July 1984 Woodward J. heard a motion on behalf of EME and Mr. Lazar seeking an order discharging the order of Mr. Justice Sweeney dated 4 July 1984. In support of that motion Mr. Lazar filed an affidavit sworn on 13 July 1984. That motion was dismissed. On the same day the applicants sought an order joining Mazz Enterprises (Australia) Pty. Ltd. (Mazz) as a respondent and seeking declarations and injunctions against it similar to those made against EME and Mr. Lazar. Woodward J. so ordered. By motion dated -16 August -1984- the. applicants -sought _.=.._: committal of Mr. Lazar for alleged contempt of the order of Sweeney J. of 4 July 1984 and the orders of Woodward J. of 18 duly 1984 and 26 July 1984 as alleged in a statement of charge of that date. The statement of charge alleges that:- (a) Mr. Lazar on various dates between 12 July and 30 duly 1984 sold five TX~-1 machines and thereby infringed the applicants' copyright and engaged in conduct which was misleading and deceptive, and (b) that Mr. Lazar parted with power, possession, custody and control over three of the said machines by installing one of them at premises at 163 Sladen Street, Cranbourne on 14 July 1984, and another at 22 Glengala Road, West Sunshine on 25 July 1984 and by releasing another machine to Ian Sykes on 24 July 1984. During the hearing of this motion before me the applicants sought leave to amend the statement of charge by alleging the following in lieu of paragraph (a) last mentioned: - " - "(a) On various dates between 12th July 1984 and 30th July 1984 the first named Respondent acting through the secondnamed Respondent sold 5 TX-1 machines to Moreland Finance Pty. Ltd., alternatively sold the said 5 machines to the thirdnamed Respondent. (b) Alternatively on 14th July 1984 alternatively 23rd July 1984, the secondnamed Respondent sold the said 5 machines to Moreland Finance Pty. Ltd. on behalf of the -thirdnamed.-Respondent..2 2° tu: . (c) By his participation in the sales aforesaid, the secondnamed respondent sold the said 5 machines. (d) By reason of the said sales the Respondents infringed the Applicants' copyright and engaged in conduct which was misleading and deceptive and so acted in contempt of the orders recited in paragraphs 1, 2 and 3 hereof." After argument I granted leave to amend the statement of charge. By motion dated 6 September 1984 the applicants sought the committal of Mr. Lazar for contempt alleged in the statement of charge of that date. In that statement of charge it was alleged that:- (a) on or about 7 July 1984 the first named respondent through the second named respondent sold two of the said machines bearing serial numbers 407621 and 407520; (b) on or about 7 July 1984 the first named respondent through the second named respondent parted with power, possession or control over the said two machines, by agreeing to sell them as aforesaid; (c) on or about 28 July 1984 the first named respondent through the second named respondent accepted further payment for the said two machines in the sum of $20,500.00 and thereby, and to that extent, parted with power or control over the said machines. The notice of motion of 16 August 1984 together with statement of charge of that date was served personally on Mr. Lazar. The notice of motion dated 6 September 1984 together with statement of charge of that date was served on Mr. Lazar's solicitors. The two notices of motion in respect of the alleged contempt came on for hearing before me on 21 September 1984. Mr. Barnard and Mr. Burnside appeared for the applicants and Mr. R. Gillard appeared for the three respondents. By order made during the hearing of the motion dated 16 August 1984 the motions were heard together. From the evidence placed before me by the parties it is apparent that at all material times Mr. Lazar and his wife, Ann [Lazar have been the only shareholders of EME and Mazz and have been the only directors of those companies. At all material times EME has carried on the business of selling video amusement machines throughout the State of. Victoria. It does not manufacture such machines or import them into Victoria. Such machines are imported by Mazz and then purchased by EME. Before 13 July 1984 Mazz had imported nine TX-1 machines from Japan. Prior to the end of June 1984 EME had dealt with certain of the machines which it had purchased from Mazz. In particular it had sold machines numbered 302555, 407520 and 407621 to one Colin Knight and machine numbered 406595 to one John Angel. By 13 July 1984 two of the machines sold to Mr. Knight had been purchased back from him by EME. Those two machines were sold to one Ian Sykes by EME before 13 July 1984. The situation of EME in relation to its dealings in the machines was set forth in the affidavit of Mr. Lazar sworn and filed on 13 July 1984. He stated:- "Eastern carries on the business of selling Video Amusement Machines throughout the State of Victoria. It does not manufacture such machines nor does it import them into this country. It does, however, purchase such machines from Mazz Enterprises (Australia) Pty. Ltd. ("Mazz"), a company of which I am also a Director, and it has purchased TX-1 Video Amusement Machines from Mazz. Mazz imported these machines into this country and it is those machines which form the subject matter of these proceedings. The making of the interlocutory orders and their continuance has and will cause Eastern serious and irreparable harm. If Eastern is unable to complete the sales of the four TX-1 machines which it has already agreed to sell and the ninth machine which it has not yet sold, this will mean that it has substantial working capital tied up in stock which it is unable to realize. Eastern has borrowed some THIRTY-FIVE THOUSAND DOLLARS ($35,000) to finance the purchase of the TX-1 machines and it is incurring interest charges on this loan. The continuance of the prohibition against selling the TX-1 machines therefore adversely affects - the liquidity of Eastern. Furthermore, in as much as Eastern is unable to complete the sales it has made, this will have the effect of disappointing the expectations of the purchasers and the owners of the sites on which the machines are planned to be located. It will deprive the salesmen of commission on these sales. It will adversely affect the goodwill of Eastern as a reliable supplier of goods." 10. On 23 June 1984 EME advertised that it had available for sale two machines in two of the best locations in Melbourne with profits of approximately $400 to §500 per week for an investment of just $19,000 per machine. Mr. and Mrs. Sykes of Morwell were attracted by this advertisement, communicated with Mr. Lazar, and agreed to purchase the two machines at a total cost of $38,000. This transaction was reduced to writing, The two machines the subject of this transaction bear serial Nos. 407621 and 407520. The transaction was negotiated by Mr. and Mrs. Sykes with Mr. Lazar personally. One Leslie Smith, ostensibly a salesman but in fact an independent associate of some kind of EME, was in attendance. According to the evidence of Mr. Sykes his first contact with Mr. Lazar was on 2 duly 1984 by telephone. He had written a letter to EME on 27 June 1984 but had received no reply. He said he had also gone to the premises of EME on the afternoon of Saturday 30 June 1984 but there was nobody then in attendance. In his telephone conversation of 2 July 1984 Mr. Sykes indicated willingness to acquire the two machines, discussed financing the purchase, placement of the machines in various sites and the expected returns, and other matters. Between 2 and 7 July 1984 there were telephone conversations between Mr. Lazar :-and Mr. Sykes and:'on the morning of 7 July he went to the premises of EME and met Mr. Lazar, Mr. Lazar introduced him to Mr. Smith. Mr. Smith took Mr. and Mrs. Sykes to Matt's Blue Room where they inspected one of the TX-~1 machines. They then returned to EME. Mr. Sykes agreed to 11. purchase the two machines for a total of $38,000 and signed a written agreement embodying the transaction. In that agreement EME was the vendor, Mr. Sykes was referred to as the operator. The machines were described, the price was stated. ~A-deposit of $3,800 was provided for and Mr. Sykes gave his cheque for that amount on that day. The document was dated 29 June 1984. Mr. Sykes asked why the agreement was so dated. According to him he was told that from a tax point of view it would be advantageous that it be so dated. If this transaction was carried out on 7 July 1984 it is clear that it was a transaction carried out in disobedience of the order of Mr. Justice Sweeney which had been made on 4 duly 1984 and it was entered into in contempt thereof. On behalf of Mr. Lazar, however, it is said that in fact the transaction was completed and the document signed on Saturday, 30 June 1984. It is said that it was dated 29 June 1984 in compliance with a suggestion of his that that would be a good date to adopt because it was the last banking day of the financial year ending on 30 June 1984. Mr. Lazar has nowhere deposed to the truth of this explanation. Mr. Smith was called and said that the agreement was made and signed on 30 June 1984. But between Mr. Sykes and Mr. Smith I am quite satisfied that Mr. Sykes is stating the situation accurately and that Mr. Smith is in error. I found Mr. Sykes a most refreshing and convincing witness and -accept his evidence fully. He gave a good account of his movements at the relevant period. Mr. Smith, on the other hand, I found unconvincing. So far as an objective factor bears upon the taal 12. probabilities it is to be noted that the cheque dated 29 June 1984 for §3,800 deposit was paid into EME's bank on 9 July 1984, That would be normal for a cheque given to EME on 7 July. In the 'circumstances 'one would hardly expect it to have been held by EME for so long if EME really received it on 30 June. And of course if the agreement had been signed on 30 June there was no reason for choosing another date as the date of the sale. But if the agreement was signed on 7 July, it was essential with the injunction in force that EME and Mr. Lazar choose another date and that the date chosen be a date before 4 July 1984. According to Mr. Sykes, Mr. Lazar told him on 7 duly that he was expecting another five machines to arrive shortly. Mr. Sykes indicated to Mr. Lazar that he was interested in acquiring those machines. Mr. Sykes negotiated a price of $17,000 per machine instead of $19,000 for the additional five machines. With respect to that proposed transaction finance was necessary. Mr. Lazar suggested the Moreland Finance Corporation (Vic) Pty. Ltd. Mr. Sykes called on that company on 10 July 1984 and applied for finance for the seven machines for a total sum of $127,000. Mr. Sykes said that on 14 July he went to EME where the negotiations .for the. five machines ~ were finalised --and -"the paper work" was carried out. According to Mr. Smith this occurred on 7 July and that the paper work included the signing .of a document post-dated 11 July 1984. 13. The written agreement for the second purchase namely the purchase of the five machines does bear the date 1] July 1984. This does not seem to have been questioned by Mr. Sykes. He observed, however, that the agreement was in the name of Mazz as vendor. His understanding until then was that he was dealing with EME. He asked Mr. Lazar why the agreement was in the name of Mazz and was told by Mr. Lazar that it was another of his companies which he wanted to put it through. Mr. Sykes was satisfied to accept this, thinking that the finance company would make sure of title to the machines. As to the circumstances and date of signature of the agreement with respect to the five machines I accept the evidence of Mr. Sykes. The date was one week after the signing of the agreement to buy the first two machines. Mr. Smith also puts the signing of the second agreement at one week after the signing of the first. The contents of the affidavit of Mr. Lazar of 13 July 1984 also bear on the date of the signing of the agreement in respect of the five machines. He speaks of there being nine machines imported. He indicated that at 13 July 1984 there were only five of the nine which were not sold although as to four of that five, EME had agreed to seli them. With one sold to Knight and one to Angel and two to Sykes there were five of the nine unsold on 13 July 1984. If the purchase agreement between Mazz and Sykes was signed on 7 or 11 July Mr. Lazar could not have said on 13 duly that EME had -agreed to sell four of the last five. He would have known that Mazz had already sold all of the last five. It is curious that he speaks of an agreement by EME to sell four of the last five machines leaving the last machine unsold. No 14. explanation of that was forthcoming from either counsel. But it is important that the agreement to sell four of the last five is stated to have been a sale by EME and not Mazz, that it is EME and not Mazz which is --intending to sell~ the last Machine and that it does not mention that Mazz had sold the last five machines on 7 or 11 July. The sale by EME to Sykes is spoken of, not as a completed agreement, but rather as an agreement yet to be completed. This is consistent with the sale to Sykes being in a state of agreement not yet finalised, as was the fact. Had the agreement concerning the five machines been already signed the machines had been sold by Mazz and there would have been no point in Lazar contending that EME was selling the machines and still had one to seli. If the situation were that the sale of the last five machines to Sykes had been made on 7 July and deliberately so made, as is asserted, by Mazz rather than EME while there was no injunction applicable to Mazz, the application by EME of 13 July 1984 for relief from the injunction against it, was, for practical purposes, quite unnecessary. EME would by then have had no selling to do. All these considerations support Mr. Sykes' evidence that the agreement concerning the five machines was signed on 14 July 1984. Whatever notion might have existed in the mind of the respondents as at 13 July 1984 as to the possible use of Mazz as a vendor to Sykes the situation as explained to the Court by the affidavit of Mr. Lazar of that date was that EME owned the machines and had the right to sell and control them and was entitled and intended to sell them. And having regard to 15. the basic situation as between EME and Mazz that Mazz was the importer and EME was the seller the immediate transfer of the machines from Mazz to EME immediately they were available would be natural enough. . - The following passage in the evidence of Mrs. Lazar is also relevant:- "Mrs. Lazar does Mazz employ anybody by way of permanent staff? --- No. It does not carry on any business, does it? --- It can, it has the ability to sell if it wants to. But it does not? --- It does - it did. What Staff has it got? --- It has not got any reguiar staff. What stock has it got? -~- We bring - we are an importing company so we import machines from overseas; that is its stock. When they are imported by Mazz, they are automatically transferred to Eastern; is that - not so? --- Not always, no. Mostly then? ~-~- Mostly, yes." I am quite satisfied that on 13 July 1984 as against Mazz, EME was the owner or entitled to become the owner and entitled to full power, possession, custody and control of the five machines sold to Mr. Sykes on 14 July 1984. It is apparent that until the document of purchase was signed by Mr. Sykes he believed that he was dealing with EME. It is apparent also that the only reason that Mazz was. introduced into the transaction was to attempt to avoid the 16. effect of the injunction against EME. But the ownership of the goods having been in EME at least until 13 July 1984 Mazz could only enter into the agreement with Sykes if in some way it was clothed with authority by EME to -act-on its -behalf, or as its nominee, or it acquired the property and control of the machines from EME. If the proper inference is that Mazz acted simply as agent or nominee for EME then the sale to Sykes was in direct contravention with the injunction against EME. If on the other hand Mazz sold by arrangement between itself and EME that it sold to Sykes as a principal, then, either EME sold the machines back to Mazz or it transferred to Mazz its power, possession, custody and control of the machines and thereby disobeyed the injunction. In all the operations of -EME the relevant conduct was that of Mr. Lazar. It was he who negotiated with Mr. Sykes with respect to the sale of the first two machines and then the five machines. He was obviously the manager and an executive operative of EME and Mazz. He was a director of both companies. The acts constituting the conduct of EME were the acts of Mr. Lazar. He was at all relevant times aware of the terms of the order of the Court. He must have understood that the purpose of the order was to preserve the property in the machines and their locations as they were when the order was made and that what was done by him frustrated those purposes. In so far as the conduct of EME was in contempt of the order of 4 July 1984 Mr. Lazar being a director was equally in 17. contempt. Where, as in this case, the acts of the director are the acts of contempt on the part of the company, the actual responsibility accords with the legal responsibility. The director's acts .being the company's acts and being. the... — _' acts constituting the contempt of both the company and the director the order of Sweeney J. against the company would have been effectual to bind the director whether or not that order had inciuded an order binding him in express terms. The liability of a director of a company in the contempt of the company in disobeying an order of which he is aware .is explained in Ronson Products Ltd. v. Ronson Furniture Ltd £19661 1 Ch 603; Biba Ltd. v. Stratford Investments Ltd. €19731 1 Ch 281 and Phonographic Performance Ltd. v. Amusement Caterers (Peckham) Ltd £19633 3 All ER 493. In this case there is an order expressly made against Mr. Lazar. Mr. Gillard urged that it extended only to forbidding Mr. Lazar from selling or otherwise dealing with the machines as a principal. He said the Mr. Lazar did not do that. He urged, quite properly, that a party against whom an injunction is made is bound only so far as its terms speak clearly and unambiguously. In this case Mr. Lazar knew that he and EME were enjoined against selling the machines in question. In my opinion that order also clearly enjoined him against arranging for -:another party to sell the machines. That is what he did. Not only did he arrange for Mazz to enter into an agreement to sell the machines to Mr. Sykes but he was personally involved in a transaction with Mazz in which EME authorised Mazz to enter into that agreement as agent or 18. nominee for EME or in which EME transferred its right title and interest in the machines to Mazz to enable it to enter into the agreement with Mr. Sykes in the capacity, for that transaction, of a principal. -In -my opinion whichever. of these events occurred Mr. Lazar by instigating, managing and arranging them was guilty of conduct constituting selling the machines within the meaning of the order and that that would have been be so understood by Mr. Lazar. In addition the order enjoined both EME and Mr. Lazar from parting with the possession, power, custody and control of the machines. The transactions by Mazz with Mr. Sykes as agent or nominee of EME or as principal involved EME in parting with such possession, power, custody and control. Further, in his capacity as the executive representative of both EME and Mazz, Mr. Lazar had certain power over and control of the machines. By the order he was enjoined against parting with such power and control which he had in that or any capacity. But he did part with such power and control by arranging the transactions between EME, Mazz and Mr. Sykes. Iam satisfied that the situation existing between EME and Mazz was that Mazz entered into the transaction with Mr. Sykes as agent or nominee for EME rather than that it acted as a principal having purchased -the machines from EME. 'There is no evidence of a transaction of purchase by Mazz from EME. Also the sum of $20,500 being part of the sum of $24,300 paid by Mr. Sykes on a package purchase including the five machines the subject of the second sale and the two previous machines 19. was credited on cancellation of part of that package to Mr. Sykes' liability to EME. I accept Mrs... Lazar's evidence only - to the extent that. she counselled performing the sale of the machines to Mr. Sykes in the name of Mazz. She said she took control of the sale to Mr. Sykes for the purpose of making it a transaction by Mazz rather than EME, but she did nothing to indicate that there was any reality in this. She took no part in any of the negotiations with Sykes. The credibility of Mrs. Lazar leaves much to be desired. Apart from her failure to perform as one would have reflected if she took that transaction into her own hands as a genuine Mazz transaction it is clear that so far as she associated herself with the transaction she knew that she was inviting Mr. Sykes and the finance company to buy the Machines without even a warning that there was a serious copyright claim affecting them, which if valid, rendered the machines valueless to those parties. She says she instructed Smith to sell to Sykes for Mazz, but although Smith did sign the agreement, he did so in accordance with Mr. Lazar's decision to put the transaction through another of his companies. It is a reasonable inference that Smith was chosen to sign the sale agreement of 14 July because, in view of the existing injunction, neither Mr. nor Mrs. Lazar desired actually to make the sale to Mr. Sykes. In the end what was done was to use the name of Mazz. It is to be observed that the sum of §85,000 received by the vendors of the five machines was paid to the solicitors for both companies and applied at least in part to pay off EME's borrowings for the 20. purchase of stock. I am quite satisfied beyond reasonable doubt that Mr. Lazar wilfully -engaged-:in the.-conduct referred to intending thereby to frustrate the purpose of the order restraining him and EME from selling or parting with the machines. He thereby engaged in conduct forbidden by the order and was guilty of contempt in respect of conduct of himself and EME relating to the sale of two machines to Mr. Sykes of 7 July 1984 and the conduct of himself and EME relating to the sale of the five machines. In committing these contempts he did so in circumstances in which two things have happened: 1. the applicants have lost the benefit of the order; and 2. substantial interests of innocent third parties have been placed at serious risk. a All this has been done on behalf of EME so that it could discharge some of its debts. This was a ruthless piece of conduct. It is my view that an order should now be made which will reflect the view of the court concerning the matter of wilful disobedience of orders of this kind. Orders of this kind are made every day in this court and parties rely upon them. It is essential to the administration of justice that 21. there should be full confidence that such orders will be obeyed and that people will not frustrate them by using technicalities to conceal the realities of a situation. It is not asking too much for parties to behave themselves ina commonsense way. Lazar's conduct was wilful and serious. It may be that the respondents will win this action on the ground that the applicants' copyright claim is unsound. But the order was made on the basis that the copyright claimed by the applicant was supported by the evidence to an extent sufficient to require that the machines be kept in their existing ownership and control pending trial. It is perfectly clear that if the respondents do not win this action Mr. Sykes and Moreland Finance have handed EME $109,000 and it has used it, it is said, for its own purposes. But for ail I know, EME has still got it. What has to happen, it seems to me, is that the position has to be restored and the only way of restoring it at the moment is to get the machines back. The respondents can only regain the machines back by returning the money back to the people who have paid it. In default of that, restoration may be to some extent achieved by the respondents repaying the money received into Court. If the position were restored, one would take a different view of this matter, and one wonders why it cannot be restored. Every consideration of commonsense and ordinary morality requires that the situation be restored so that the litigation can progress. The evidence would suggest that it is probably within the resources available to the respondents to restore the situation. 22. What I have in mind is to commit Mr. Lazar to Pentridge Prison for three months on each motion with an intimation that if the money received by the respondents is paid into court together with costs he may apply for reconsideration in the matter. The appropriate order is that which I made on 3 October 1984.