Duracell Australia Pty Ltd v Union Carbide Australia Ltd [1988] FCA 407

JUIP OR rong opt. AOT 1 &¥.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G161 of 1988

GENERAL DIVISION

BETWEEN: DURACELL AUSTRALIA PTY. LIMITED Applicant AND: UNION CARBIDE AUSTRALIA LIMITED Respondent

CORAM: FOSTER, J. DATE: 19 MAY, 1988.

PLACE: SYDNEY.

REASONS FOR JUDGMENT

(EXTEMPORE )

HIS HONOUR: These proceedings come before the Court by way of a claim made by the applicant, Duracell Australia Pty. Limited, that the respondent, Union Carbide Australia Limited should be held to be in contempt of court for the breach of a certain undertaking given to the Court at the conclusion of prior litigation between the parties. That litigation concluded on 17 February, 1988 when the parties settled an action brought by

the applicant against the respondent for alleged breaches of s.

52 of the Trade Practices Act, 1974.

The undertaking in question was clearly given upon consideration. The wording along with the wording of other undertakings was reduced to writing in a form handed up to the Court so that the Court could formally note the undertaking in the precise terms in which 1t was given. The question before me 1s whether it has been proved in these proceedings that there has been a breach of the undertaking constituting a contempt of the Court. The subject of breaches of undertaking and their constituting a contempt was considered in Australian

Consolidated Press Ltd. v. Morgan & Anor. (1964) 122 C.L.R.

483.

In that case, Mr. Justice Owen, at p. 515, expressly adopted with approval, the words of Mr. Justice Jenkins in the

case of Redwing Ltd. v. Redwing Forest Products Ltd. (1947) 177

Law times Reports, 387, where his Honour in refusing an application that the respondent be found guilty of contempt of

court said:-

"I cannot say I think that the undertakings

: contained in the order were clearly drawn and [I cannot say I regard the questions of construction involved in them as entirely easy questions, but in my judgment, a defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken his undertaking. For the purpose of relief of this character I think the undertaking must be clear and the breach must be clear beyond all question."