° L DISTRIBUTION Pd JUDGMENT No. 518/21. IN THE FEDERAL COURT OF AUSTRALIA ) TASMANIA DISTRICT REGISTRY Tv. No. ww YS GENFOAT NTVTSTAN BETWEEN : R.R. & S.M. POWELL PTY. LTD. and CAFIKE PTY. LTD. trading as THE PORT ARTHUR CIDER CO. COURT: NORTHROP J. DATE : 30 SEPTEMBER 1987 PLACE: HOBART MINUTES OF ORDER THE CONPT ORDERS THAT: - lL. The motion dated 2 June 1987 be refused. G 2 of 1987 Applicant Respondent 2. The applicant pay the respondent's costs of the motion including any reserved costs on that motion. (Settlement and entry of Orders is dealt with in 0.36 of the Rules of Court.) RECEIVED = 4NOV 1987 FEDERAL RT OF LIA aS IN- THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY GENERAL DIVISION T. No. G 2 of 1987 BETWEEN : - & 5.M ) TY. LTD. Applicant and CAFIKE PTY. LID. trading as THE PORT ARTHUR CIDER CO. Respondent COURT: NORTHROP J. DATE : 30 SEPTEMBER 1987 PLACE: HOBART EX ORE ONS FO MENT This is the return of a motion dated 2 June 1987 in which the applicant is moving the Court for orders that the respondent has committed a contempt in connection with proceedings and that it be punished for that contempt. The order of the Court made on 4 March 1987 was that until further order:- "The Respondent be restrained and an Injunction is hereby granted restraining the Respondent, its servants or agents from promoting, marketing, distributing or selling any fruit, fruit juice or other fruit product in any bottle, carton or other container bearing or including the word 'Grove' or 'Grove Apple Maid'." In accordance with the provisions of 0.40 r.6 of the Rules of Court, a statement of charge was given in connection with the motion by the applicant. That statement of charge reads as follows:- "The respondent was on or about the 26th and 27th days of May 1987 in contempt of an order made by this Honourable Court on the 4th day of March 1987 in that the respondent by its servants or agents promoted and distributed fruit juice in containers bearing the word 'Grove'." The affidavits in support of the motion show that on 26 and 27 May 1987 containers of fruit juices were seen in display refrigerators at retail stores in various suburbs in Hobart containing containers which, on their face, contained fruit juices and which were stated to be bottled by Port Arthur Cider Co. being the business mame under which the respondent apparently carries on its business, and on some of those containers there appeared the word "Grove." In other cases the word "Grove" had been partially obliterated by some sticker and in other cases the containers did not bear the word "Grove." The question immediately arises whether on that evidence it can be established that the respondent by its servants or agents promoted and distributed fruit juice in containers bearing the word "Grove." The mere fact that a retailer, not being the respondent, sells or displays for sale containers containing, under the label of the respondent, fruit juices in containers and bearing the word "Grove" is not evidence that the respondent by its servants . or agents promoted and distributed fruit juice in containers. There are a number of reasons why that is 50. There is no evidence as to how or when those containers came into the possession of the retailers in the stores. It is quite possible that these containers containing the word "Grove" had been there prior to the date of the injunction being made on 4 March 1987. In order to establish a contempt, it is necessary for the applicant to show that it was the respondent by 1ts sérvants or agents doing something or other, namely, promoting and distributing fruit juices in these containers. It would have been fairly simple to obtain evidence from the retailers as to when they acquired or purchased or received these containers, but there 15 no such evidence at all. It is argued that in the context of the circumstances of this case the retailers were in the nature of agents of the respondent, but I reject that argument. In the injunction, the words "servants or agents" are used as indicating persons who are doing the bidding of the respondent, which 1S a company, and does not include retailers with whom the respondent may have commercial dealings. In my opinion, the applicant has failed to prove that the respondent by its servants or agents promoted and distributed fruit juices in containers bearing the word "Grove." The evidence relied upon does not go to that issue, it goes to the issue of the fact that the retailers sold those containers and had those containers available and on display for sale but there 15 a vital link missing 1n a chain of proof required in this case. The mere fact that the labels contained the name of the respondent by itself, again, is not sufficient to establish or provide that missing link. That depends upon evidence of what action was taken by the respondent itself, by its servants and agents, to promote those fruit juices in containers. Accordingly, the applicant having failed to prove its case, the motion must be refused. ¥ certky that this and the Uruce (3) Preceding pages aie a true copy of the Reasons tor judgment herein of the Honowable Mr. Jusnee ® M Northrap x. Shareu P LAO Assonate Dated: 30 Sateuaes (W84 —-— LL Va SII Bes 2.