Abdalla, A v American Airlines Incorporated

[1985] FCA 294

Conternpc of Court - disobedlence CO lnterlocutory ~ n ~ u n c t i o n -

failure to ser-Je res;3ondmt personally wich ordes endor.sed. as

I

res_uired by Order 37 rule 2 - whether Court had ~urisdlction to

punish for contempt.

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Federal Court Rules Order 37 rule 2.

VG 38 of 1985

.CO4P.:

Bowen C.J., Smithsrs and. Ailcox JJ.

19 June 1985

Sydney.

T-X COIXT OEDWS THAT:

1. The appeal be dismissed.

2. Tne appellant AB?-W.&Y ABDALLA pay to the respondent

AIW.ICAJ1 Aii)LINES IfiJCORPOFAT’D its costs of the appeal.

=:

Settlement and entry of orders is dzalt with in Orfier 36

of the Federal Cour t Rules.

EX m w e x JLIDGPIFCJT

THE L'3,U;IT: This is a n appeal from a judgment of Plr. Justice

Noodward given on 5 February 1985. His Honour lixl before hln a

moti2n by American Airilnes Inrorporated agalnzt F3rahS.n .&-hdalla seeklng an order t k t he be punished for contexpt of court in

such manner as shall to the Court seem fit, in having committed a

breach of the order of the Court made on 6 Ju ly 1984 restrainlng him for using in trade or commerce a mark or symbol conslsting of

two capital letters A an6 any representation of a s t o o p m q eagle

o r cmsisting of two capical letters A and any representation of

any eagle between or above chose sal? letters.

Hi5 Honour found chat Yr. Xidalla had ccmnitted a

contempt of the court in breachlnq that oreer of 6 Ju~:J 13@4, and

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ordered chat he pay American Alrllnes Incorporated khelr coscs of

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the applicatlon.

On Lhis appeal couns21 for Mr. Abdalla dlrected argument,

to two main matters. First he argued that the primary judge

erred In r;he conclusions he reached concernlng the letterhead

used 5y Mr. Abdalla in relatlon to the alleged breach, ar.d

secondly he argued that In view of the terms of Order 37 rule 2

of our Rules-of Courr;, and in t'ne absence of evidence that the

order of 6 July 1984 had been served on Mr. Abdalia bearing the

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endorsement required by that rule, the prlmary judg? :+as wic'nout-

jurisdictlon to deal with the motlon or, should not 'nave

Froceeded to dzal with IT; as he rlid. Counsel agreed that this

second point had not been taken in the court below.

So far a5 the flrst polnt 1 s co~cerned, argument focused

largely on the evidence glven by Mr. Abdalla before the primary judge, which was dlrected to the questlon how he cane to use a letterhead in a message sLgned by hlm and eellveved to Qantas whlch had on it t'ne letters AA and between tho52 letters a representation of an eagle, contrary to the injunccion of 6 July 1984.

Mr. F-bdalla gave two explanations s'omewhac Inconsistent

wich each other. The first explanation was that he used tine

unaltered letterhead, that is hls oriqinal letterhead, for t*e

taking of rough n o t e s , and on this occasion ghen he tyoed out

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Some material on that letterhead he had 1ntenAed tnat it be a rough draft r?I?;ch would later be typed in a fair form by his

secretery, and that It was not hls intention that the docunenli

would go In the fcrn of a letter to Qantas where ~t did In fact

go, or to anybody else.

Deallng wlth this explanatlon, his Honour cominented that

"I can only say that I do not accept that

explanatlon, bearing ir. mlnd the appeilrance of

the letter ltself and in particular the iacc

that it was personally siqneci by the

respondent after he hsd typed it. I am

satisfied tkat It w2s intended to be used in

the form In which lc appears at the time he

did in fact slgn it".

We see no error In this finding of hls Honour. The form of the lecter and the fact that Mr Abdalla signed it and wrote "Regards"

above his signature, supports his Honour's conclusion.

The second explanation was put m the form of a

suggestlon t'r?ac the letterhead when it went out over Mr.

A5dalla's signature In fact did not have the eagle uoon it, that

the eagle had. been whited-out, and that it had later been altered

by somebody in such a way as to create trouble for Mr. Abdalla by

removing the white covering and exposing t'ne eagle so as to qlve

the appearance of a breach of the in]u..ctlon.

The prlmarg judge dld noc accept thls suggestion. Fe

belleved chat he dlscerned on the orlginal exhlSlt some

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i,cdication of pasc whiting-out nn the logo, aoc! his Hnnsur sale

at page 35:

"Tke suggestim that he (that 15, Mr. Wdalla)

made was that the eagie had been properly

whiced-out and that sonehody had carefully

removed the whltlnq that covered the

representat~on of Lhe eagle and tnat thaL had

been done mallclously for the purpose of

causing him trouble.

"It would seem on the evldence that t'nat could

only have been done by an employee of Qantas,

because the letter was referred to the

appllcant by two employees of Qantas who

received it and, presumably, the suggestion is

that one or both of those employees of Qantas

were Involved in a deliberate interference

with the letterhead - s o as to place the

respondent 13 leopardy. I do not accept that

suggestion. I think it 1 s far more likely

that an ineffective attempt was nade at some

stage in the offlce of the respondent to

whlte-out the daplction of the eagle; perhaps at the same time a l a~-ge number of pages were

dealt wlth, and It happened that thls one vas

in no sense adequately obliterated."

Aqaln we do not flnd error in hls FIonour's approach. There was evidence from Mr. Grimes of Qantas as to the form of the letter when recelved by Qantas. He was not cross-examined to suggest any change. The secretary of Hr. Abdalla to whom he

suggested in his evidence he was going to glve the note for

.typing was not called.	Once t'ne suggestion of interference by a
thlrd party is re~ected,	as we think it properly was rejected by

his Honour, one is brought back to Mr. Abdalla's origlnal

evldence that the letterhead slgned by hlm was one of those vhlzh

he described as t'ne original letterheads. We therefore see no

reason co disturb his Honour's conclusions on the evldentlary

quescions.

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A s to the second point arcpled on the app;.*l, thls

concerfled ths operatlon of Order 37 of o:w Rules. Tne relevant

sub-rules of Order 37 rule 2 are in cne fol1owir.q cerns:

(1) Sub~ect the Rules, an order shall not

be enforced by committal or sequestracion

unless -

(a ) the order or a certified or offlce

copy thereof is served personally on

t'ne person bound; and

(b ; if the order requires the person bound

to do an act wichin a specifled tlme,

the order or certified or office copy

theceof is so served before that tlme

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- expires.

...

( 3 ) An order or a certlfied or ofr'ice copy

thereof served under this rule must bear a

notice (naming the persons cor.cerned) that the

person served is llable to imprisonment or co

sequestration of property if -

(a) where the order requires the person

bound to do an act within a specified

time, the person bound refus?s or

neglects to do the act withln that

time; or

(b) where the order requires the person

bomd to abstain Erorn doing an act,

the person bound disobeys the order.

...

( 5 ) hiere a person liable to committal or

sequestration of h15 property by way of

enforcement of a Iudgment or order has notice

of the judgment or order -

(a)	by being present when the judgment is pronounced or when the order 1 s made; or
(b)	by being notlfled of the terms of the
1 udgmen t or order whether by

telephone, telegram or otherwise,

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the ]ud:,-mer.t or order may be enforced by

corr.mltta1 of that persor. or by sequescrrtcion

of his property notwichstandlng t h t servlce

has not been effected In--accordance	wlth this
rule.

( 6 ) The Court nlay dispense with servlce under

thls rule. "

A s has been indlcated, It was argued t3at because the

order of 6 July 1984 had not been served In accordance wlt'n Order 37 rule 2 141th endorsement of the requislte notlce, the prinary

judge had no jurlsdictlon to deal with t'ne motion, or at least

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should not have dealt with it unfavourably to Mr. Abdalla in t'ne aosence of Evidence thar; the consequences of dlsobedlence had

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been brought to his notlce.

In our vie??, Order 37, rule 2 is not concerned with

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~urisdiction. He consider the judge had jwisLlction co hear r:he

motlon. Order 37 rule 2 1s designed to prevent the enforcenent

of such an order by imprisonment or sequestratlon whefe the

procedure it lays down has not been followed. One comment which

may be made is that the judge has nor: sought to enforce the order

by imprisonmanc or sequestration.

On the question whether his Eonour should have proceeded

to deal with the motion and make an order for costs against Mr.

>Adalia, we note the terms of order 37 sub-rule 2 ( 5 ) . Since this

polnt, failure to observe Order 37 rule 2 , was not taken in t'ne

Court below, when ~t was raised before us counsel for American

Airllnes Incorporated sought leave to adduce evLdence thac MY.

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Abdalla had k e n :n courc when the orfipr of t5 2uly 1984 was

pronounced. We gave hl~n leave to do so. The evldcnce w25

tenderzd, and It showed that N r . ASdalla was in court at that

tlme. in addltlon, ic 1s to be noted chat in giv1r.g evldence

before the prlmary ludge, Mr. Abdalla made it clear that he was

well aware of the terms of the order, ard he detailed the steps

he had taken to comply with the order. He was represented by

counsel. it w a s not proved that the varlous possible

consequences of disobedience were specifically called to hls

attention, but certalnly Ye was well aware of the need to obey

tie order, ?-qd on hlS-own evidence, intecded to do so.

In these circumstances, and having regard to the terms

of Order 37 sub-rules 2 ( 5 ) and 2 ( 6 ) che primary judqe was, in our

opinlon, sntltled to proceed wlth the matter and to act as he

did. We dlscern no error In his Honocr's decision to order costs

against Fr. Abdalla, but otherwise not to proceed to other

punishment. In the result, we are of the opinion hat the present

appeal should be disnllssea	and we thlnk that lt should	be
dismissed with costs.