ie L00 General Distribution not required IN THE FEDERAL COURT OF AUSTRALIA TASMANTA DISTRICT REGISTRY No. TG ~ of 13de we ewer GENERAL GiVIStToN BETWEEN WESTLAND LABORATORILS Id Applicant AN Of DISCOUNT GARDEN AND HOMECENTFEN PTY. LTB. Erading as HARRY & CARDEN CENTRE Respondent 16 DECEMBER, L986 KEELY J. PEASONS FOR JUDGMENT ON NOTICE OF MOTIUN FILED 4+ DECEMBER 1985 On 24 October 1°86 Everett J. made an order (the order) that "the Respondent by its servants or agents or otnerwise be restrained and an injunction is hereby areantea restraining the Respondent, its servants and agents from promoting, marketing or selling any living plant includinea davisions spores and sporelings and tissue cultures unaer the namé or Crade marl "Kimberley QGueen" unless such plants divi3ilon spore and sporeling of tissue culture be accompanied by a ticket in the form annexed hereto". It was said frum the Bar table that tnat oardér was made pv consent but the order, as entered on / November 1°86, doss not record thar it was made by consent. ee ee mm aS em ee a a i ee Se eT eR eS EE eae ee eC kee MEO Data itd Antal The applicant has filea ana served a notice or motion which alleges that the respondent has committed a contempt of the order. The statement of charge, as amended at the hearing without objection, alleges that the respondent at Hobart on or about 25 November 1986 "was in contempt of an order made by this Honourable Court on the 24th October 1580 in that by erecting a sian at 1ts Garden Centre it did sromote the plant 'Nephrolepis Obliterata under the name cr trademark ot 'Kimberley Queen'." The respondent company has asazisted in expediting the determination of the applicant company's motion; it has waived its right to personal service of the notice of motion, the statement of the charge and the supporting arfidavit. In considering this matter I have applied the stanaard of proor referred to in Fllendale Fty. Ltd. v Graham Matthevs Pty. Ltd. (1986) 65 ALK 275 at 280-1, where Forster J. said: .. the standard of procr required before I should find any of the respondents guilty of contempt of court on the Looting that they have committed or aided and abetted the commission or breaches oft the undertakings of 17 February 1984 talls short of proot beyond reasonable acubt. The standard nevertheless is higher than merely on the balance ot probabilities. Although the civil standard ot proot should be appiied 1t should be applied bearing in mind the serlousness of the altreqations and the serlousness of the possible consequences to the contemnor." RE DS Ta eae ate ne ee PE SOURS GIT TT eI La a PR LO Te errs His Honour referred to the reasons for judyment ot Wileox J, in Flamingo Park Pty. Ltd. v Golly Dolly Creation Pty, Ltd, (1585) S59 ALR 247, Given that the present proceeding relates to the breach of an interlocutory injunction, it as desirable fo conrine my tindings on the evicence to those matters on which findings are Necessary in order to determine the notice ot motion. Mr. J.B. Clarksen, the managing alrectsr of the respondent, gave evidence that, tollowing upon publicity being given to the order made by Everett J., he had become or "WOost concerned that Westlands had generated quite a bit publicity ... I was most concerned ... that the qeneral Public may have misconstruea the Fact that Harrys Cthe respondent] had sroken the law ...".) He sald 1n his evidence in chiet that the purpose of the respondent in erecting the Sign was to "uphold the good reputation of the respondent Under CYOSS-examination he Said that that was the "main objective but not Cits3 sole objective". There are three aspects of the S819n which cannot readily be roconciled with the respondent 's contention that that was its main objective, although [ QACCEPC tnat that we Vas one of its cbhiectives. Thosé aspscts ace: i. The tact that Considerably ureater Brominence was Sliven to the words "Kimberley Queen", both in $122 and in colouring, than to any other part of the s1qgn; 2. The respondent's 319n beaan with tne words "Dear customers, please do not ask us for Kimberley Gueen" but u expressly intormea them chat "We can, novever, séll the plant under its botanical name, neéphrolepis obliterata'" ¢that name béing underlined in rea). 3, The sign stated that the applicant 13 "currently taking legal action against Harrys Cthe respondentil as we advertised this plant for sale in the Mercury on 12/10/85 for 6.99 reducea to $4.99", Mr. Clarkén gave evidence of various steps taken fy the respondent, including the taking of tlegqal advice as to the text of the 3iqn (although not as to its format) and tte giving of anstructions to the respondent » starr thac thev should not sell the plant under the name "Kimberlev Queen". He also gave evidence that there 15 no difference between the Plant which has been sold as "Rimberley Queen" and the plant with the botanical name "nephrolepis obliterata"; further. that, before che commencement of the action in wnich the present notice of motion has been taken out, the respondent was selling che plant under the namé of "Kimberley Queen" From the time of the making of the order on 24 October 15986 until the present time the respondent has continued to sell the plant but 16 ds no lonagér accompanied by the ticket reterred to in the order. That evidence 13 relevant to the proviso to the order made on 24 October 1986, namely, "unless such plants be accompanied by a ticket in the torm annexed Mr. Sealy, in a caretully prepared analysis cr both the order and the relevant racts, including the sian, has argued strongiy that the respondent did not promote the plant "nephrolepis obliterata' under the name of ""Fimberley Queen" - placing particular emphasis upon the word "under". He saia that it might be held that the respondent promoted the plant by rererence to the name "Kimberley Yueen' but at had not promoted the plant under that name. I have qiven considerable attention to that submission but have reached Che conclusion that 16 can not be upheld. It should be added that, in my opinion the evidence shows that the respondent did "promote" Fhe plant (under the name) although there 15 nothing to suggest that there was anv "selling" of the plant under that name. Nos am I able to uphold his submission based upon the reasons for judgment of Malins V.C. in The Buenos Ayres Gas Company v Wilde (1890) 42 LTNS 657. H accept the submission of Mr. McKay, on behalf of the applicant, that tnat decision 15 distinguishable and in any event, 15 not an authoritv binding upon a single judge of this court. In my opinion, the sign, viewed objectively, "did promote the plant "nephrolepis obliterata" under the name oH or "Kimberley Queen" - as alleged in the statement of charge. Iam also satistied, notwithstanding the existence or the objective to which Mr. Clarken reterred, that the respondent erected the sign with the intenticn that 1t should have that effect, although I do not find that that was ifs sole purpose in erecting the sign. Even if the evidence of Mr. Clarken be accepted at 1ts highest, on the evidence the respondent, on or about 25 November 1986, at its garden centre in 114 Campbell Street Hobart, did promote tne plant ""nepl.rolepis oblicerata" under che name of "Kimberley Queen" and accordingly was in contempt of the order made on 24 October re wG oo om The applicant made it clear during the hearing tnac 1t was not seexing the imposition of any penalty upon the respondent and that the notice of motion had been proucht with a view to establishing that the erection of the sign tas in bréach of the order. In the circumstances, and in the light ot the evidence 4] of Mr. Clarken, in my opinion the appropriate course is to Qn impose no penalty in respect of the contempt tound to have been committed but to order tnat the respondent pay the applicant's costs of tne notice of motion, oF . mA, TAM ice UWEELY | CERTIFY THAT THIS AND TRE Five. PRECELING PAGES AKE A TRUE COPY OF THE DECISION AND REASONS FOR DECISION HEREIN