Buchanan Turf Supplies Pty Limited v Premier Turf Supplies Pty Ltd
[2004] FCA 1230
•21 SEPTEMBER 2004
FEDERAL COURT OF AUSTRALIA
Buchanan Turf Supplies Pty Limited v Premier Turf Supplies Pty Ltd
[2004] FCA 1230CONTEMPT – civil contempt – where it is alleged the second respondent breached an order of the Court – whether the second respondent made representations that he was authorised to sell a variety of grass – breach denied by second respondent – conflicting witness accounts as to conversations – standard of proof – “beyond reasonable doubt”
Plants Breeders Rights Act 1994 (Cth) s 44(4)
Federal Court Rules O 37 r 2Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Liberato v The Queen (1985) 159 CLR 507
R v Raymond Peter Anderson (2001) 127 A Crim R 116
Witham v Holloway (1995) 183 CLR 525BUCHANAN TURF SUPPLIES PTY LIMITED
v PREMIER TURF SUPPLIES PTY LTD, PETER GARAY & MELINDA GARAYN473 OF 2002
BENNETT J
21 SEPTEMBER 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N473 OF 2002
BETWEEN:
BUCHANAN TURF SUPPLIES PTY LIMITED
APPLICANTAND:
PREMIER TURF SUPPLIES PTY LTD
FIRST RESPONDENTPETER GARAY
SECOND RESPONDENTMELINDA GARAY
THIRD RESPONDENT
JUDGE:
BENNETT J
DATE:
21 SEPTEMBER 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant, Buchanan Turf Supplies Pty Limited (‘Buchanan Turf’), seeks a declaration that the second respondent, Peter Garay (‘Mr Garay’), be found guilty of contempt. This alleged contempt arises from what are said to be breaches of orders made by Hely J on 25 March 2003. Further, the applicant seeks an order that the Mr Garay be committed to imprisonment. This action has been commenced by notice of motion in the proceedings heard by Hely J. I have been asked to defer any consideration of penalty should I find the contempt proved.
THE FACTS
In 1995, Brett William Redman, a director of Buchanan Turf, developed a new variety of soft leaf buffalo grass called “Sir Walter”. On 27 March 1998, Buchanan Turf became the owner of plant breeder’s rights under the Plants Breeders Rights Act 1994 (Cth) s 44(4). The expiry date of this right is 27 March 2018. Buchanan Turf also grows and supplies turf for residential and commercial purposes on a wholesale and retail basis.
The first respondent, Premier Turf Supplies Pty Ltd (‘Premier Turf’), carried on the business of supplying and laying turf. At the time when the conduct complained of occurred, Mr Garay and the third respondent carried on business in partnership under the name ‘Premier Turf’. Premier Turf has since been placed under external administration. Premier Turf was one of Buchanan Turf’s main competitors in supplying and laying grass. Originally Buchanan Turf sold turf to Mr Garay, but this arrangement ceased many years ago.
In the proceedings before Hely J, the applicants complained that, on various occasions since January 2000, Premier Turf supplied or offered to supply customers with turf represented to be Sir Walter when it was not. Hely J found that Premier Turf and Mr Garay had, as a result of false representations that another variety of grass was Sir Walter, on three occasions induced customers who wanted Sir Walter to purchase other varieties of grass. Hely J made the following order (‘the Order’):
‘The first and second Respondents be restrained by themselves, their servants or agents from:
–representing to anyone that the Respondents are authorised to sell the Sir Walter variety of grass; and
–representing to anyone that any other grass turf sold by the Respondents is the Sir Walter variety of grass.’
His Honour observed that neither party had submitted that the form of the injunction was inappropriate.
The order did not apply to the third respondent because Hely J found that ‘[n]o basis for relief against Melinda Garay has been established. Until the institution of these proceedings she had no knowledge of the matters of which the applicant complains.’
It is not in dispute that:
(a)Justice Hely made the orders he did on 25 March 2003;
(b)Those orders were served personally upon the Second Respondent (‘Mr Garay’); and
(c)The orders so served contained a note in accordance with the provisions of Order 37 rule 2.
STATEMENT OF CHARGE
The applicant claims that the second respondent has breached the Order. The Statement of Charge particularises the breaches as follows:
‘[T]he Second Respondent did:
(a)on 22 October 2003 at about 1.00 pm represented by telephone to Suzanne Mary Bernard Smith (‘Mrs Smith’) that he could sell the Sir Walter variety of grass to Mrs Smith;
(b)on 22 October 2003 represented in person at 1 Darfield Close, Bolwarra Heights to Mrs Smith that he could sell the Sir Walter variety of grass to Mrs Smith;
(c)on 22 October 2003 represented in person at 1 Darfield Close, Bolwarra Heights to Mrs Smith and Dr David Smith (‘Dr Smith’) that he could sell the Sir Walter variety of grass to Dr and Mrs Smith;
(d)on about 28 October 2003 supplied grass turf to Dr and Mrs Smith that was not the Sir Walter variety of grass.’
Counsel for the applicant, Mr Marshall, submits that the alleged breach is constituted by any or all of the representations referred to in (a)–(c), and that (d) is merely ancillary to these breaches. It is not in dispute that the second respondent is the person whom Dr and Mrs Smith knew and referred to as Peter Garay.
THE EVIDENCE
The evidence in support of the applicant’s claim is in the form of the affidavits of Dr and Mrs Smith. Mr Garay filed an affidavit by himself and a supporting affidavit of Darryl James Moore. Dr and Mrs Smith and Mr Garay were cross-examined.
The breach of the Order was alleged to have occurred during a series of conversations between Dr and Mrs Smith and Mr Garay. In these conversations, the parties discussed the Smith’s plans to landscape the front and side section of their Central Coast home (‘the Smith’s house’). The Smith’s house was completed by about October 2003 but there was no driveway or landscaping. In late October 2003, Mr Garay built a driveway at the Smith’s house and laid grass either side of it. The parties agreed on a purchase price of $13, 000 for Mr Garay’s work and materials.
Dr and Mrs Smith assert that they specifically asked for Sir Walter turf to be laid. They had seen Sir Walter being promoted by Mr Don Burke in the television program Burke’s Backyard. Dr and Mrs Smith claim that Mr Garay gave them the impression that he could supply them with Sir Walter turf. Mr Garay denies that Mrs Smith made any mention to him of Sir Walter up until the day of the hearing. The parties agree that Mr Garay and his employees in fact laid another variety of grass, ‘Kikuyu’ turf.
Less than one month after its construction, the driveway washed away.
Dr and Mrs Smith complained to the Department of Fair Trading and they appeared on an episode of A Current Affair which focussed on Mr Garay’s work. In cross-examination, Dr Smith said that the people from A Current Affair were interested in this ‘so-called problem’ with Mr Garay’s work.
The telephone conversation
Mrs Smith initiated contact with Mr Garay by calling Hunter Landscaping Supplies Pty Ltd (‘Hunter Landscaping’) on Wednesday 22 October 2003. That date is not disputed. Mr Garay is a director of Hunter Landscaping and he answered the telephone. In her affidavit, Mrs Smith gives the following account of this conversation:
‘I said: “Hello my name is Anna Smith. We are building a home at Darfield Close, Bolwarra Heights. We need some landscaping.”
The male person said: “Yes we can help you straight away.”
I said: “Oh gosh that’s lucky. No-one else can do the work or even a quote this side of Christmas.”
He said: “What would you like done?”
I said: “Are you the owner?”
He said: “Yes my name is Pete. How can I help you Annie?”
I said: “We have a house that is a long way from the cul-de-sac that needs landscaping. Do you do driveways?”
He said: “We sure do. Will you be there and I can meet you on site in an hour and we can talk about it.”
I said: “Do you have Sir Walter?”
He said: “Yep no probs.”
I said: “Oh really how lucky! We have seen it on Don Burke’s program.”
He said: “No probs”…’
Mrs Smith’s account of the conversation during cross-examination was consistent with her affidavit evidence. During cross-examination Mrs Smith reiterated her assertion that Sir Walter turf and Don Burke’s television program were mentioned in that initial conversation:
‘And during that conversation, you said that you’d seen Sir Walter on Burke’s Backyard? – That’s right.’
In his affidavit, Mr Garay gives the following account of the telephone conversation on 22 October 2003:
‘[Mrs Smith] said words to the effect, “I want someone to do landscaping here.”
I replied with words to the effect, “No worries I will come out today and it will be finished by next week if I get the job.”’
According to this version of the conversation, there was no mention of Sir Walter.
In cross-examination, Mr Garay denied that there was any mention of Sir Walter turf or Don Burke’s program during this telephone conversation:
‘She’s never mentioned Sir Walter to me up until today. The first I heard of it was today…
I don’t recall any mention of the Don Burke program.’Mr Garay’s alleged representations to Mrs Smith at the Smith’s house
It is common ground that on Wednesday 22 October 2003, after the telephone conversation, Mr Garay attended the Smith’s house and had further discussions with Mrs Smith about the proposed landscaping. As was the case with the telephone conversation, the witness accounts are in conflict about whether, during the course of the conversation between Mr Garay and Mrs Smith, Sir Walter turf or Don Burke’s program was mentioned. Mrs Smith’s version was:
‘I said: “Hello I’m Anna Smith.”
He said: “Hi I’m Pete. What do we want here Annie?”
We then walked around the yard and I indicated to him the area that we wanted to be used for the large driveway and showed him the areas either side of the planned driveway that we wanted to be landscaped with Sir Walter.
I said: “We want those areas to be Sir Walter.”
He said: “That won’t be a problem. That’s a good choice.”
I said: “We have seen it on Don Burke’s program.”’
Mrs Smith’s evidence in cross-examination was consistent with her affidavit evidence. Mr Wormington, counsel for Mr Garay, asked Mrs Smith why she considered it necessary to tell Mr Garay twice in a matter of hours that she wanted Sir Walter turf because she had seen Don Burke promoted on Burke’s Backyard. To this Mrs Smith responded: ‘because that’s what we wanted.’ Mr Wormington asked her whether she was sure she mentioned Burke’s Backyard both in her telephone conversation with Mr Garay and in their conversation at the Smith’s house. Mrs Smith answered that she was “absolutely sure”. In cross-examination, she did not resile from the position stated in her affidavit.
Mr Garay denied that Sir Walter turf or Burke’s Backyard was mentioned. In his affidavit, Mr Garay says the following:
‘Later that day I attended the property…I had a further conversation with Suzanne Smith…I then said words to the effect…
“…We’re better off grassing off to the big tree on that side of [the] property and to the boundary on the other side. You are better off putting Kikuyu around here. It’s a no go zone and when we come back and finish it we will put Buffalo down on the rest of the property. I have a nice Soft Leaf Buffalo ST 26. We will throw that all around the house.”’
In Court, Mr Garay reiterated his denial that Sir Walter turf and Don Burke’s program were discussed in his conversation with Mrs Smith at the Smith residence. As with Mrs Smith’s evidence, there seem to be no discrepancies between Mr Garay’s affidavit and the evidence he gave orally in court:
‘And she told you that what she wanted was the areas on either side of the driveway to be turfed with Sir Walter. Isn’t that right? – No, she didn’t, sir, no.
And you said that it wouldn’t be a problem and it’s a good choice. You deny that? –I deny that, sir, yes.
...she told you again that she had seen it on Don Burke’s program and that’s why she wanted it. Isn’t that right? – Again, sir, she’s never mentioned Don Burke to me and she’s never mentioned Sir Walter.’The telephone conversation between Dr Smith and Mrs Smith
Dr Smith was cross-examined as to a telephone conversation that took place with Mrs Smith in Mr Garay’s presence on 22 October 2003. Dr Smith says that, in that conversation, Sir Walter was mentioned.
Dr Smith said that he had a clear recollection of Sir Walter being mentioned in this conversation ‘…because there wasn’t a lot of words said at the time of the conversation, and to be quite frank, I was quite irritated that I was interrupted at the time.’
In his affidavit, Mr Garay says the following about his conversation with Dr Smith:
‘[Dr Smith] said to me words to the effect,: “What are you going to do there.”
I explained with words to the effect: “We’re going to put down a driveway and some grass either side.”
He replied with words to the effect: “I don’t really know what you’re talking about. I will have to have a look.”
Mr Marshall did not cross-examine Mr Garay about this aspect of the telephone conversation.
Mr Garay’s alleged representations to Dr Smith and Mrs Smith
The parties agree that Mr Garay returned to the Smith’s house in the evening on 22 October 2003 in order to meet Dr Smith. Again, there is conflict between the evidence of the Smiths and Mr Garay regarding these conversations.
Mrs Smith gave the following account of this conversation in her affidavit:
‘Peter said to my husband: “Annie’s told you what we are going to do hasn’t she?”
My husband said: “She has mentioned it.”
The three of us then went and looked at the relevant area and Peter said: “She’s a great lady isn’t she. We are going to put the driveway in there and the grass on either side.”
My husband said: “That’s going to be Sir Walter isn’t it.”
Peter said: “Yes it is. For a $300,000.00 house you only want the best.”’
Mrs Smith was not cross-examined about this conversation.
Dr Smith’s affidavit account of the conversation is as follows:
‘As far as I recall the conversations between Peter Garay, my wife and I at that meeting were said in words to the effect stated by my wife in that paragraph. I particularly recall saying to Peter Garay: “The price you quoted is for Sir Walter isn’t it?” He said: “Yes.”’
When he was cross-examined about this conversation, Dr Smith said:
‘And Mr Garay – did your wife inform you that Mr Garay had suggested to her that two different grasses go down in you[r] area of the house – in the total area? – The only grass that I heard mentioned was Sir Walter grass.
And who mentioned that? – Well, firstly, on the telephone my wife mentioned it to me and, secondly, when I spoke to Mr Garay, and I can’t remember just which particular time it was. I think it was either the second or the third time. I was talking to him, in general terms, about what was happening and I did ask him if it was true that he was getting Sir Walter grass.’
Mr Garay’s account of this conversation again contradicts Dr and Mrs Smith’s account. In his affidavit, Mr Garay describes the conversation as follows:
‘I indicated where the driveway was to go. I then said to him words to the effect, “And I’ll put down Ki either side. When we come back to do your house the rest of the grass will be Buffalo.
The reason I did not suggest putting in Buffalo at the front of the premises was that it would have been too expensive. There was 1200 metres of turf to lay. St26 is $7.50 per square metre.’
Under cross-examination, Mr Garay again denied any mention of Sir Walter turf.
CONSIDERATION
Was there an understanding between the parties that Mr Garay was to lay cheaper varieties of grass?
There were other differences between the evidence of Dr and Mrs Smith, on the one hand, and Mr Garay, on the other hand, that do not go directly to the issue of the making of the representations. These issues nevertheless help to put the alleged representations into context.
The first of these issues was a contention by Mr Garay that he advised the Smiths to use cheaper varieties of grass. Mr Garay said that it made sense to use a cheaper variety of grass in an area that is hardly observable from the windows of the Smith’s house. Mrs Smith denied that it made sense to use a cheaper variety of grass on either side of the driveway because the driveway is the entrance to the home and is in fact observable from the eating area and the study. Dr Smith agreed with the proposition that it made sense to put a cheaper grass in areas that are not observable from the house and in the areas of land next to the driveway but he did not concede that this was what he decided to do.
I accept the Smith’s evidence that they did not ask for, or agree to, a cheaper grass being laid on either side of the driveway.
Why, if Dr and Mrs Smith were unhappy with Mr Garay’s work, did they pay him for it?
The second of these issues is why, if they were unhappy with the work, did Dr and Mrs Smith pay (or pay-in-part) Mr Garay. Mr Wormington emphasised this point which, he argues, suggests that Dr and Mrs Smith felt that they had gotten what they had paid for. Dr and Mrs Smith contend that they paid the money because they were afraid of Mr Garay. It was common ground that the agreed price was $13,000 in cash.
Mrs Smith recalled that she paid Mr Garay personally $8,000 in cash on Friday 23 October 2003. In his affidavit, however, Mr Garay says that ‘on 23 October 2003, the Smiths paid $8, 000.00 to one of my employees, Lindsay McGoldrick’. That was not put to Mrs Smith or to Dr Smith. It matters not, for the purposes of this case, whether the money was paid personally to Mr Garay. I accept that Mrs Smith paid $8,000 on 23 October 2003 in part-payment for Premier Turf’s work. Mrs Smith’s evidence was that on Friday 31 October 2003 she and Dr Smith attended Premier Turf’s office and paid Mr Garay $3,000. Mrs Smith said that on Monday 3 November 2003 she and Dr Smith returned to Premier Turf’s office and paid the remaining $2,000.
Mr Garay gave a different version of events relating to payment. He said that on the next day after 23 October 2003 or a “couple of days later” he was paid $2,000 in his office and that on the same occasion Dr Smith went to his car and returned with a further $2,000, “short-changing” Mr Garay by $1,000.
When asked during cross-examination why she paid for the work, despite her assertions that it was substandard, Mrs Smith said did so ‘because I was frightened of Peter Garay. My husband is disabled, as am I, and he’s a big fellow.’ Mrs Smith said she did not go to the police because ‘that would have been extreme’. Mrs Smith nonetheless claimed that her fears were genuine. Dr Smith asserted in Court that he paid the money ‘to get rid of [Mr Garay]’ and because his wife ‘was very frightened…’ Dr Smith said, ‘I was up to my neck in it, I had had it, I had had enough of it, wanted to move on.’
I do not accept Mr Wormington’s submission that Dr and Mrs Smith paid for the work because they were satisfied with it. I accept that, regardless of whether or not the full purchase price was paid, Dr and Mrs Smith paid Mr Garay to rid themselves of the worry and, in the case of Mrs Smith because she feared Mr Garay.
Complaints to the Department of Fair Trading
Mr Wormington submits that Dr and Mrs Smith may have believed that they asked for Sir Walter, even though in reality they did not. It is submitted that, when Dr and Mrs Smith made a complaint to the Department of Fair Trading (‘the Department’), they became involved in a media campaign to expose Mr Garay for alleged corrupt practices and that the Department somehow suggested the idea of Sir Walter to Dr and Mrs Smith.
I do not accept this submission. It does not accord with the evidence given by Dr and Mrs Smith, which I accept, nor is it supported by any other evidence.
Darryl Moore’s affidavit
Mr Moore is also a supplier of turf. An affidavit by him was filed on behalf of Mr Garay. Mr Moore was not present at the hearing and was not cross-examined. There was no objection to his affidavit being read and relied upon.
In his affidavit, Mr Moore reported a telephone conversation and subsequent meeting with Mrs Smith in November 2003. She asked him what sort of grass had been laid at her home. He replied that it was Kikuyu. Mr Moore then says that Mrs Smith asked him to measure and quote for Buffalo and that she specifically inquired whether he had Sir Walter and about a grass that stayed green all year round. Mr Moore says he did not give Mrs Smith a written quote because he did not want to take someone else’s half-finished job. Mr Moore’s evidence, filed by Mr Garay, supports Mrs Smith’s specific interest in and awareness of Sir Walter. The precise date of the Smith’s complaint to the Department is not in evidence. However, a film crew from the show A Current Affair attended at her house some time in the period leading up to 17 December 2003. The fact that the conversation with Mr Moore took place in November makes it unlikely that it was the Department that first raised the name Sir Walter to the Smiths and that they had no interest in that type of grass before they made their complaint.
The receipt book
Mr Garay placed into evidence an invoice, which he said he gave to the Smiths at ‘the end of the job’ (‘the Invoice’). The Invoice bears the date 29 October 2003. It is made out to “David and Anna Smith” and refers to the supply and laying of Kikuyu. It also refers to a payment in cash of $5000 on 30 October 2003 and a balance owing of $8000. If the Invoice were written on the date it bears, it would provide support for Mr Garay’s version of events and his assertion that he was to lay Kikuyu.
There are, however, some matters that call into question the information contained in the Invoice:
(a) The invoices in the receipt book are consecutively numbered.
(b)The Invoice, a copy of which is annexed to the Mr Garay’s affidavit, bears the printed number 0545.
(c)The Invoice dated 24 October 2003 was written by Mr Garay.
(d)The previous invoice in the receipt book bears the number 0543. That invoice, also made out to David and Anna Smith, is dated 29 October 2003 and has not been completed. The original and two copies of 0543 are still present in the receipt book.
(k)The invoice before that, 0542, bears the date 10 December 2003.
(l)Invoice number 0546 bears the date 11 December 2003. It is written in the secretary’s hand.
(e)Invoice number 0544 had been removed in its entirety. There was no explanation.
(f)The original of the Invoice is still in the receipt book. One of the copies is missing.
(g)Mr Garay conceded in cross-examination that his evidence about when monies were paid and how much was paid was unreliable.
(h)The Invoice referred to $5000 paid on 30 October 2003, the day after the date of the Invoice.
(i)In his affidavit, Mr Garay said that the Smiths had paid $8000 to his employee on 23 October 2003 and, ‘the next day or a couple of days later’ paid a further $4000. Mr Garay asserted that this was $1000 less than he was owed.
(j)Mrs Smith denied ever receiving an invoice or any document from Mr Garay.
(n)Mr Garay said that the Invoice should have been provided to the Smiths by either himself or his foreman but could not say with certainty that it was provided.
Mr Garay’s explanation for the fact that the relevant invoices were significantly out of chronological sequence was to the effect that he would just ‘grab a book and start anywhere – wherever I picked a page out I’d just start’. He also said that he had only written about three invoices in ‘[his] whole time there’. His explanation for the fact that the date of receipt of moneys on the invoice is the day after the date the invoice bears is that Dr Smith had rung him the previous night and told him that he would be paying that amount the next day and wanted a receipt. Dr Smith was not cross-examined on this point, which did not arise until cross-examination of Mr Garay and after Dr Smith’s evidence was concluded. There was no application to recall Dr Smith.
It is common ground that $8,000 was paid as a first payment and that the balance owing was $5,000. I do not place any weight on the mere fact that the invoice seems to have these figures the wrong way around. The Invoice is, however, replete with errors. It seems to me to lend no support to Mr Garay’s submission that the contract between the Smiths and Mr Garay was for Kikuyu grass.
The applicable principles
Civil contempt
The function of civil contempt is to enforce the process and orders of the court and to punish other acts which impede the administration of justice (Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106).
It has not been suggested that the alleged contempt is other than civil contempt. Civil contempt must be proved on the criminal standard (Witham v Holloway (1995) 183 CLR 525 at 534). It is not in issue that Hely J made the order, that the order was served personally on Mr Garay and that the order so served contained a note in accordance with the provisions of Order 37 rule 2 of the Federal Court Rules.
This is a case where there is competing evidence.
As pointed out by Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515 (‘Liberato’), it is not sufficient to believe the witnesses called by the applicant or to prefer their evidence. It is also necessary to be satisfied beyond reasonable doubt of the truth of that evidence. If Mr Garay’s evidence gives rise to a reasonable doubt, he should not be found guilty of contempt.
In R v Raymond Peter Anderson (2001) 127 A Crim R 116 (‘Anderson’), Kirby J, with whom Sheller JA and Dowd J agreed, considered the question of directions on the onus and standard of proof in contempt proceedings. Having referred to decisions of the High Court and the position in the United States and Canada, his Honour at [26] set out a number of propositions:
‘First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit.
Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?’
Conclusions from the evidence
The issue is whether, on the evidence, Mr Garay made any of the representations alleged in the Statement of Charge.
Mr Garay did not dispute what Dr and Mrs Smith said, apart from the issue of payment and the mention of Sir Walter and Burke’s Backyard, which he denies. Mr Garay maintains that the contract was always for the supply of Kikuyu. He says that there was discussion about Buffalo grass and ST 26, a type of Buffalo which he supplies. He relies upon the fact that such grass is cheaper, that the area which he grassed is not observable from the house and that the Smiths were working to a budget.
Mr Garay relies on the Invoice to support his version of events, although he concedes that the invoice may not have been given to the Smiths. However:
- The Invoice is out of sequence in the invoice book.
- The date of the receipt of money endorsed on the Invoice post-dates the date of the Invoice itself.
- It was, unusually, written by Mr Garay and not by the secretary.
- The work for the Smiths was done on a cash basis for which a receipt was not initially requested.
- There are inconsistencies between the matters in the Invoice and Mr Garay’s evidence, such as the fact that $8000 was paid as a first payment.
These factors lead me to conclude that the Invoice was not a document prepared in the ordinary course of events, nor does it reflect the contract between the parties.
Mr Wormington relies on the lack of knowledge on the part of the Smiths about grasses. He submits that the inference to be drawn is that it is highly unlikely that they requested a variety of grass by name when they had little or no knowledge of different varieties of turf. It seems to me, however, that the lack of knowledge does not lead to this conclusion. It is logical, in my view, that the lack of personal knowledge led Mrs Smith to accept what she heard on Burke’s Backyard, a show that she watched regularly and to recall and request what had been repeatedly referred to on that program – Sir Walter.
Mr Wormington also relies on the fact that, after they discovered that the grass was not Sir Walter, the Smiths still paid for the work that was done, knowing that there were avenues of redress, such as seeking legal advice, making a complaint to the Department of Fair Trading or refusing to pay the balance of the contract price. This, it is submitted, leads to the conclusion that the Smiths “got what they bargained for” and that, not having “done their homework”, they were unhappy and embarrassed. Mr Wormington also submits that the subsequent complaint to the Department and the appearance on A Current Affair are inconsistent with the assertion by the Smiths that they paid out of fear of Mr Garay.
I do not accept that the subsequent actions of the Smiths is inconsistent with their version of events. The Smiths are not young and Dr Smith appears to be somewhat frail. I accept that they paid because of a feeling of fear of Mr Garay on the part of Mrs Smith, whether or not such a fear was objectively justified and, in the case of Dr Smith, also because he wanted ‘to get out of it’ and‘ move on’. The subsequent choice to make a complaint is not inconsistent with the fear at the time that the demand for payment was made.
I reject the submission that the Smiths may believe that they asked for Sir Walter even though in reality they did not or that they became caught up in a media campaign after their complaint to the Department in order, as counsel put it to ‘[take] away the guilt of rushing in and taking the cheapest quote without doing their homework’. I am satisfied, having seen both Mrs Smith and Dr Smith in evidence, that they felt strongly about their choice of Sir Walter. They gave reasons for that choice which, in circumstances where they did not themselves have extensive knowledge of turf, were reasonable. The fact that Mrs Smith took a sample of her grass to a nursery to confirm what variety it was supports her story that she wanted Sir Walter. I accept that, as she was firmly of that view that she wanted Sir Walter, she expressed it to Mr Garay. I do not accept Mr Garay’s denial that Sir Walter was mentioned. I accept that the Smiths would not have retained Mr Garay to lay the turf if he had not told them that he would supply and lay Sir Walter.
Mr Wormington also points to Mr Garay’s behaviour and submits that his alleged reaction, which was to ignore the Smith’s complaints, is not consistent with guilt or with the knowledge that such conduct would constitute a breach of the Order. There are a number of reasons why Mr Garay might have behaved the way that he did. The Smiths were one couple and there is no suggestion that they were in any way connected with the proceedings before Hely J. I am not satisfied that Mr Garay’s behaviour is necessarily inconsistent with guilt.
I am conscious that I must be satisfied beyond a reasonable doubt that Mr Garay made one or more of the representations set out in the statement of charge. There is conflict between the evidence of Dr and Mrs Smith on the one hand and of Mr Garay on the other. I accept Dr and Mrs Smith’s version of the conversations with Mr Garay. I am satisfied beyond a reasonable doubt of the truth of that evidence. I do not accept Mr Garay’s version. It follows that I accept that the Smiths and, in particular, Mrs Smith, had formed the opinion that only Sir Walter turf was wanted and that they communicated that desire to Mr Garay as set forth in their evidence. I do not accept that they have formed some hindsight opinion on the subject or that it was suggested to them after the event. I do not have a reasonable doubt that the conversations took place as they said. It follows that I do not have any real or reasonable doubt that Mr Garay made the representations as alleged (Liberato at 515). Accordingly, this case comes within the third category of cases described by Kirby J in Anderson (at [26]).
I find that Mr Garay made each of the representations in paragraph 1 (a), (b) and (c) in the Statement of Charge. It is common ground, as asserted in paragraph 1(d) that the grass supplied was not Sir Walter but Kikuyu.
I am asked at this stage to consider whether the contempt has been proved and not to proceed to any questions of sentence. I find that the contempt has been proved.
As the parties have requested that I defer any consideration of penalty, I will hear from the parties on penalty and the form of the orders to give effect to these reasons.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate:
Dated: 21 September 2004
Counsel for the Applicant: Mr Marshall Solicitor for the Applicant: McDonald Johnson Lawyers Counsel for the Respondents: Mr Wormington Solicitor for the Respondent: Bilbie Dan Lawyers Date of Hearing: 18 May 2004, 8 & 15 June 2004, 12 July 2004 Date of Judgment: 21 September 2004
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