American Airlines Inc. v Abdalla, A

[1985] FCA 17

-:- NOT APPROPRIATE FOR REPORTING OR CIRCULATION.

(m)

IN THE FEDERAL COURT OF AUSTRALIA	1
)
VICTORIA DISTRICT REGISTRY
-	)
)
)

VG NO. 175 of 1984

AMERICAN AIRLINES INC. Applicant

and

ABRAHAM ABDALLA Respondent

JUDGE: Woodward J.

5 February 1985

M-=ORE JUDGMENT

This is a return of a notice of motion seeking that the respondent, Abraham Abdalla, be punished for a contempt of the Court

in having committed a breach of an order made by his Honour,

Hr Justice Jenkinson, on 6 July 1984, restraining him from using in

trade or commerce a mark or symbol consisting of two capital letters A and any representation of a stooping eagle or consisting of two capital letters A and any representation of any eagle between or above those said letters.

4 2.

It is clear that the respondent. who trades under the name of

AA Travel, had a large quantity of letterheads and business cards

printed which contained a logo which was at least strikingly similar

to that of American Airlines; and when the order was made by

Hr Justice Jenkinson the effect of it was that he was not thereafter

able to make use of those business cards or letterheads without making a significant alteration to them. The alteration which he has chosen to make, and which was obviously consistent with the order, was that the stylized eagle, between the two letters, would have to be obliterated in some satisfactory way. That having been done, the letterhead could be used without there being any breach of his Honour's order; and it seems that, generally speaking, that practice

has been followed by the respondent since the order was made last July. The matter which is now before the Court is the first occasion which has come to the notice of the applicant in which the respondent has failed to take the necessary care with the continued use of his letterheads.

The respondent gave an explanation in the witness box which amounted to a claim that he used the unaltered letterhead for the

some material, he had only intended that it be a rouqh draft which

would later be typed by his secretary, and that it was not his

intention that the document would go in the form of a letter to

taking of rough notes and that, on this occasion, when he typed out that I do not accept that explanation, bearing in mind the appearance of the letter itself and in particular the fact that it was personally signed by the respondent after he had typed it. I am satisfied that it was intended to be used, in the form in which it appears. at the time that he did in fact sign it.

4 3.

A second argument advanced by the respondent in the witness box

was that the document had been altered by somebody in such a way as to

create trouble for him by creating an apparent breach of the Court's

order where none had in fact occurred. The suggestion that he made

was that the eagle had been properly whited out and that somebody had

carefully removed the whiting that covered the representation of the

eagle and that that had been done maliciously for the purpose of

causing him trouble.

It would seem on the evidence that that could only have been done by an employee of Qantas, because the letter was referred to the applicant 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 so as to

place the respondent in jeopardy. I do not accept that suggestion. I

think it is far more likely that an ineffective attempt was made at some stage in the office of the respondent to white-out the depiction of the eagle; perhaps at the same time a large number of pages were dealt with, and it happened that this one was in no sense adequately obliterated.

Bearing in mind, as I must, the requisite standard of proof in

a matter such as this, which is 'beyond reasonable doubt', I am satisfied that the stylised eagle on the paper was not covered over, or obliterated, at the time when Mr Abdalla in the course of his business handed the letter to one of his clients for delivery to such airlines as might be concerned in the matter with which the letter dealt.

4 .

Accordingly, I am satisfied that there has been in this case a contempt of court. I say that bearing in mind that it is not necessary, as the authorities show, for the applicant to establish that there was a deliberate defiance of the Court's order. It is sufficient if the person charged does a voluntary act which is in fact in breach of that order.

On the other hand I think it must be said in the respondent's

favour that the breach is not a serious one: the evidence indicates

that it was an isolated incident. I am prepared to accept the

respondent's evidence that the document was prepared in some haste, certainly the typing shows all the signs of that; and I &Q prepared to accept that he would not deliberately and in defiance of the court's

order have directed a communication bearing the American Airlines logo to a recipient such as Qantas. There would seem to me to be no point, in his position, in doing so.

I also have regard to the evidence on the document in question that some attempt may have been made at some stage to obliterate the

device, and I accept his evidence that that	has been his general
practice.

Nevertheless, it must be remembered that he has sitting in his

office large quantities (it seems) of material which, if it is distributed in trade or commerce to another person, does immediately bring him Into contempt of this Court. It is therefore encumbent on him to take the moat careful measures - over and above ordinary care

in the preparation of documents in an office - to see to it that that

Mterial is not used without	the complete and effective obliteration
of the eagle.

5.

c

I think that the respondent will have received a salutory lesson through the institution of these proceedings; I believe that the requirements of the case will be met if, having made a formal

finding that a contempt has been committed. I record no penalty but

require him to pay the applicant's costs, to be taxed by the Registrar

if not agreed, and that is the order that I make.

There is one further matter I have omitted to deal with. It

was argued on behalf of the respondent that the order of Jenkinson J.

exceeds the jurisdiction of the Court because it refers to an

individual and is not limited to the use of postal services. I do not accept that submission. I think that, whatever the position may be in the case of a final order where jurisdiction is obtained by the Court pursuant to section 6(3) of the Trade Practices Act 1974 because the conduct of the respondent involves the use of the postal services of the Commonwealth - and as at present advised I think there is a power in the Court to issue a general final injunction not limited to the use of the post in such a case - I am quite satisfied that in the exercise of its powers of injunction under the Federal Court of Australia Act 1976, in order to preserve the status quo up until the time when the matter can be properly heard and determined, it is within the Court's power to make an order in the clear but general terms which Mr Justice Jenkinson used in this case.

I hereby certify that this and the

four ( 4 ) preceding pages are a

true and accurate copy of the

Reasons for Judgment herein of

The Hon. Mr Justice Woodward

(Associate)

Dated: 5 February 1985.