Century Yuasa Batteries Pty Ltd v Martin

[2002] FCA 722

FEDERAL COURT OF AUSTRALIA

Century Yuasa Batteries Pty Ltd v Martin [2002] FCA 722

CENTURY YUASA BATTERIES PTY LTD v DAVID ROGER MARTIN
QG 10 OF 1998

DRUMMOND J
BRISBANE
6 JUNE 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 10 OF 1998

BETWEEN:	CENTURY YUASA BATTERIES PTY LTD APPLICANT
AND:	DAVID ROGER MARTIN RESPONDENT

ADDENDUM

Addition to the Catchwords Page of the Reasons for Judgment of the Honourable Justice Drummond delivered 6 June 2002:

“CONTEMPT - breach of injunction - restraint of trade - whether respondent had been engaged in or concerned with directly or indirectly any business of selling, distributing or marketing of batteries in Tasmania in breach of injunction granted by consent - respondent employed by companies which sold batteries to Tasmania - respondent involved in negotiations for lease of premises in Tasmania to a battery company - respondent filled out and filed change of particulars in relation to a registered business name in Tasmania

EVIDENCE - burden of proof beyond reasonable doubt - admissibility of similar fact evidence

Evidence Act 1995 (Cth) s 97

Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 applied”

ASSOCIATE TO JUSTICE DRUMMOND
24 June 2002

FEDERAL COURT OF AUSTRALIA

Century Yuasa Batteries Pty Ltd v Martin [2002] FCA 722

CENTURY YUASA BATTERIES PTY LTD v DAVID ROGER MARTIN
QG 10 OF 1998

DRUMMOND J
BRISBANE
6 JUNE 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 10 OF 1998

BETWEEN:	CENTURY YUASA BATTERIES PTY LTD APPLICANT
AND:	DAVID ROGER MARTIN RESPONDENT

CORRIGENDUM

Amendment to the Orders of the Honourable Justice Drummond made 6 June 2002:

Declaration 1, delete “Order 3” and insert in lieu thereof “Order 5”.

ASSOCIATE TO JUSTICE DRUMMOND

12 June 2002

FEDERAL COURT OF AUSTRALIA

Century Yuasa Batteries Pty Ltd v Martin [2002] FCA 722

CENTURY YUASA BATTERIES PTY LTD v DAVID ROGER MARTIN
QG 10 OF 1998

DRUMMOND J
BRISBANE
6 JUNE 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 10 OF 1998

BETWEEN:	CENTURY YUASA BATTERIES PTY LTD APPLICANT
AND:	DAVID ROGER MARTIN RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	6 JUNE 2002
WHERE MADE:	BRISBANE

THE COURT DECLARES THAT:

1.The respondent committed contempt of court by failing to comply with Order 3 of the orders made by consent on 26 August 1999 in that he filled out two invoices dated 5 September 2000 relating to the sale of batteries by Apollo Batteries to Island Batteries and in that he had a number of discussions in the period referred to in par 1 of the Statement of Charge with Mark Thurlow and Gary Clayton in which he solicited purchases of batteries by Island Batteries from Apollo Batteries through Allan Burton while the latter was working for Apollo Batteries.

THE COURT ORDERS THAT:

2.The motion be adjourned in relation to the issues of penalty and costs to a date to be fixed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 10 OF 1998

BETWEEN:	CENTURY YUASA BATTERIES PTY LTD APPLICANT
AND:	DAVID ROGER MARTIN RESPONDENT

JUDGE:	DRUMMOND J
DATE:	6 JUNE 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant, Century Yuasa Batteries Pty Ltd (“Century”), by motion, seeks orders in respect of the respondent, Mr David Martin’s alleged contempt of court constituted by his breach of an injunction issued by this Court.

2. For a substantial period prior to the mid 1990s, Martin and his associated company were involved in the sale, on their own account, of batteries in Tasmania.  In the mid 1990s, this company became Century’s exclusive agent for the sale in Tasmania of its batteries.  In February 1998, Century commenced proceedings against Martin and others in respect of, among other things, the breach by his company of this agency agreement.  Century sought extensive relief against the various respondents in the action.  This relief included declarations of Century’s entitlement to cancel the agency agreement with Martin’s company, damages against that company and Martin for breach of confidence and an injunction restraining each from carrying on any business involving the marketing of batteries in competition with Century in Tasmania for four years from February 1998.  The action was ultimately settled in August 1999 and consent orders were made, which included an injunction restraining Martin from using any of Century’s confidential information (which included customer lists) and an order that Martin pay damages to Century of $1,048,291.  Another of the injunctive orders made by consent on this occasion was the following:

   “The Second Respondent [Martin] be restrained from carrying on or being engaged in or concerned with directly or indirectly any business of selling, distributing or marketing of batteries in Tasmania until February 10, 2002.”

3. It is this order which Martin is now said to have deliberately breached on a number of occasions.  The particulars of his breaches contained in the Statement of Charge are as follows:

   “1.The Respondent was employed by Apollo Batteries (a business, which sells, distributes and markets lead acid batteries, Australia wide including in Tasmania) from at least March 2000 to March 2001 in the capacity of National Sales Manager.  Whilst employed by Apollo Batteries in that role -

   (a)The Respondent telephoned Mark Thurlow and other employees of Thurlow Management Pty Ltd trading as Island Batteries (‘Island Batteries’) to ascertain whether Island Batteries was interested in buying Apollo brand batteries;

   (b)The Respondent took orders for the purchase of Apollo brand from Island Batteries;

   (c)The Respondent negotiated the pricing, quantities and sale of Apollo brand batteries to Island Batteries;

   (d)The Respondent would send facsimiles to Mark Thurlow of Island Batteries regarding the pricing and sale of Apollo brand batteries to Island Batteries;

   2.The Respondent is and has since approximately March 2001 been employed by Powercrank Batteries Pty Ltd in the capacity of National Sales and Marketing with PowerCrank Batteries.  In that role -

   (a)The Respondent participated in the negotiations for the lease of the premises at 94 Central Avenue, Derwent Park for the benefit of PowerCrank Batteries;

   (b)The Respondent has promoted PowerCrank batteries (PowerCrank Batteries is a company, which sells, distributes and markets lead acid batteries, including in Tasmania) to Mark Thurlow of Island Batteries as an alternate supplier to Apollo Batteries of Island Batteries lead acid battery requirements;

   (c)The Respondent has forwarded to the said Mark Thurlow by facsimile a Company Profile of Powercrank Batteries;

   (d)The Respondent has forwarded to the said Mark Thurlow by facsimile Powercrank Batteries company pricing.

   3.On or about October 1, 2001 the Respondent has filed with the Tasmanian Office of Corporate Affairs a Statement of Change in Certain Particulars notifying that he is now the person carrying on business under the registered business name Tasmanian Batteries, carrying on the business the nature of which involves automotive batteries and with the Principal Place of Business being 94 Central Avenue, Derwent Park, Tasmania.  That address is also the address of Powercrank Batteries Pty Ltd in Tasmania.”

4. Century accepts that it has the burden of proving beyond reasonable doubt that Martin so breached the injunction.

5. The words in which the restraint is framed show that it was intended to have a wide operation.  But even so, the injunction which Martin is said to have breached in the ways set out in the Statement of Charge is a restraint against involvement by Martin in a particular kind of business activity carried on in Tasmania, not a restraint against his being employed by an organisation whose business includes the sale of batteries in Tasmania.  Century’s case is based on this reading of the injunction:  it did not suggest that Martin was in breach merely because he was employed by Apollo, one of whose activities included the sale of batteries to customers in Tasmania.

6. As is apparent from the particulars of the contempts alleged, Century’s case that Martin was involved in the marketing in Tasmania of Apollo’s batteries while in that company’s employ between March 2000 and March 2001 and thereafter, in the marketing of PowerCrank’s batteries there while employed by PowerCrank, is confined to allegations that he involved himself in the marketing of these batteries to one particular Tasmanian business, that operated by Mr Mark Thurlow in Launceston under the name “Island Batteries”.  There is no doubt that during the relevant period Thurlow’s company, Island Batteries, bought a substantial quantity of batteries from Apollo.  The issue raised by par 1 of the motion and par 1 of the Statement of Charge, however, is whether Martin was directly or indirectly engaged in or concerned with the sale or marketing of Apollo batteries to Island Batteries at any time during the period of the restraint.

7. An interlocutory injunction in the same terms as the final order the subject of these contempt proceedings was made on 17 February 1998.  Following this, Martin left Tasmania and obtained employment in Melbourne (where he still resides) with the company, Apollo Batteries.  His position was Victorian Sales Manager.  Apollo sold a range of batteries in the mainland States and also in Tasmania.  Martin was employed by Apollo Batteries from May 1998 until dismissed in February 2001.  Soon after, he obtained a position with another company involved in the sale of batteries in New South Wales, Victoria and Tasmania, PowerCrank Batteries.  He remains in its employ.  He says his duties with PowerCrank are confined to Victoria.  PowerCrank’s managing director, Mr Anastasios Samlidis, confirms this (though Martin disseminated a PowerCrank company profile soon after joining it which he signed over the printed subscription “David Martin, National Sales & Marketing, POWERCRANK Batteries”).  Martin also says that he had intended to get back into the battery business in Tasmania on his own account immediately after the injunction expired on 10 February 2002, but that he has decided to remain with PowerCrank until the contempt proceedings are finalised.

8. Thurlow says that, while Martin was employed by Apollo Batteries in Melbourne from May 1998 to February 2001, he frequently telephoned Thurlow in connection with the purchase by Thurlow’s business of batteries from Apollo.  Thurlow’s evidence was that Martin was personally involved in the sale of a substantial part of the large quantity of batteries that Thurlow’s company purchased from Apollo while Martin worked there.  Exhibit MT6 to Thurlow’s affidavit is the record of his company’s purchases of batteries from Apollo Batteries in the period 1 July 1999 to 30 May 2001.  It appears to be a complete list of such purchases.  Eighty-six purchases are listed as having been made in the period at a total price of nearly $36,000.  On some occasions, Thurlow says Martin solicited orders from him and negotiated pricing with him.  On other occasions, other matters related to the purchase or possible purchase by Thurlow’s company of batteries from Apollo were discussed.

9. Thurlow exhibits to his affidavit six price lists, two stock orders and two invoices which he received from Apollo Batteries.  Each bears some handwriting.  Thurlow says that all the handwriting is Martin’s.  Mr Greg Ward of Apollo Batteries claims to identify Martin’s handwriting in the body of one of these Apollo price lists.  Martin admits that he filled out two Apollo invoices to Thurlow’s company each dated 5 September 2000 in respect of the sale to Thurlow of over $3,500 worth of batteries.  In oral evidence, in addition to the writing on these two invoices, Martin said some, but not all of the handwriting on the “Apollo Batteries - Distributor” price list dated 1 September 2000 was also his.  Having regard to the different styles of handwriting and Pregnell’s evidence in which he says he wrote most, but not all of the notations on the documents comprising exhibits MT1 and MT3 to Thurlow’s affidavit, I do not accept Thurlow’s evidence as establishing beyond reasonable doubt that all the handwriting on the eight Apollo Batteries documents additional to the two invoices is Martin’s.

10. Martin and Thurlow’s mobile telephone records confirm that there was, throughout the period from about February 1998 to March 2001, frequent telephonic contact between them.  Martin’s telephone records show that in the period between April 2000 and March 2001, when Burton was Apollo’s Hobart manager, there was also frequent telephonic contact between Martin and Burton.  Mr Stephen Jurd’s Ex SJ2 shows that in the period 29 April 2000 to 19 March 2001, thirty-one calls were made from Martin’s mobile telephone supplied to him by Apollo to Thurlow’s mobile telephone and, in the period 16 March 2001 to 23 February 2002, nine calls were made from the mobile telephone supplied by PowerCrank to Martin to Thurlow’s mobile telephone.  Thurlow’s records for his mobile telephone tendered by Century during his evidence at the hearing show that calls were made from his telephone to the mobile telephones provided to Martin first by Apollo Batteries and then by PowerCrank Batteries in the period May 2000 to May 2001 on nearly eighty occasions.  The records relating to the mobile telephone provided by Apollo to Martin while he worked with that company also show that, in the period between April 2000 and March 2001 Martin telephoned Burton’s mobile telephone number on a little over 100 occasions and telephoned the Hobart depot telephone number on over twenty occasions.  The records for the mobile telephone that Thurlow issued to Burton while the latter worked for Island Batteries in late 2000 show that a substantial number of calls were made from this mobile telephone in a two month period to the Apollo mobile telephone it issued to Martin. 

11. If Martin had no reason other than business for speaking with each of Thurlow and Burton, the fact that he was in telephone contact with Thurlow on nearly 120 occasions over a twenty-two month period and with Burton on well over 100 occasions over an eleven month period would have obvious significance, as supportive of Thurlow’s evidence against Martin in these proceedings.  But, as will appear, there is a personal relationship, unconnected with business, between Martin and Thurlow and between Martin and Burton.  Further, Thurlow and Martin both appear to make extraordinarily heavy use of their mobile telephones:  for example, Thurlow’s records for the four weeks from 8 November 2000 included in Ex C6 show that he made 438 calls (six only of which were to Martin’s telephone).  Exhibit SJ2 shows that in the four week period from 21 May 2000, Martin made 645 calls on his Apollo mobile telephone (only one of which was to Thurlow’s mobile telephone and four to Island Batteries’ depot telephone.  Of these 645 calls made from Martin’s telephone in this same four week period, twenty were made to Burton’s Apollo-supplied mobile telephone and one to Apollo’s Hobart depot).  Burton’s records show that he seems to share the same addiction to the mobile telephone that each of Martin and Thurlow have.

12. The enormous use each makes of his mobile telephone and the existence of a personal relationship between Martin and Thurlow and Martin and Burton diminish the probative significance, in the present context, of the frequency of telephone contact between Martin and Thurlow and Burton.  In expressing this view, I place little weight on the evidence indicating that Martin (and Burton) were given their mobile telephones by Apollo for business use only.  Jurd was well aware that Martin and other staff disobeyed this instruction and used their mobile telephones to make personal calls.  However, he took no action to put a stop to that, though he says he complained to all staff who did this, including Martin.

13. Burton is an old and very close friend of Martin’s.  Martin looks after much of Burton’s financial affairs.  Burton, who had long been employed by Martin up to February 1998, followed Martin to Apollo and then to PowerCrank.  Martin pays the rent on the flat Burton lives in in Hobart.  Martin maintains frequent contact with him.  In between working in Hobart for Apollo and PowerCrank, Burton worked for two or three months for Thurlow in Hobart; Thurlow says he gave Burton casual employment in Hobart during this period at Martin’s request.

14. Thurlow is the husband of Martin’s former wife; she has custody of the three children of her marriage to Martin to whom he has access rights.  Martin says that (apart from discussing on a few occasions the possibility of Thurlow leasing Martin’s premises at Burnie) he never discussed business matters with Thurlow (or any of Thurlow’s staff), though he did have quite frequent contact with Thurlow about personal matters.  Thurlow says in his affidavit that Martin would only telephone him to discuss business matters and that, if he had personal issues to discuss, including matters concerning his children, he would contact Thurlow’s wife.  However, in oral evidence, Thurlow acknowledged that he did, on some occasions, speak with Martin on his mobile telephone about personal matters.

15. The evidence suggests that though the relationship between Martin and Thurlow may have fluctuated over recent years, it is not an amicable one.  Something of Thurlow’s personal attitude to Martin emerges from the comments he made in his letter to Martin about which the latter cross-examined him.  His animosity towards Martin is more clearly revealed by his conduct in alerting Century to the activities of Martin that are the subject of the present proceeding.

16. On his evidence, he was content to have a very great deal of contact with Martin throughout the whole of the time Martin was with Apollo and was content to purchase a considerable quantity of batteries from Martin, though well aware of the injunctive restraint imposed on Martin.  At some date not identified in the evidence before me, Thurlow sought out Century’s manager, Mr Garry Haseman, who was then working in Queensland, but who had been Victorian Manager of Century when it took Martin’s Tasmanian distributorship from him, to tell him that Martin had been selling him batteries, despite the injunction.  Thurlow may have a motive to ingratiate himself with Century.  He provided evidence to Century about Martin’s activities in connection with, but prior to, the action it brought against Martin and others in February 1998.  It appears that once Century cancelled its exclusive agency agreement with Martin’s company in February 1998, it promptly entered into an arrangement for Thurlow to replace Martin as its Tasmanian distributor.  But Thurlow has had a falling out with Century.  His agency with Century has been terminated and he is now competing with Century in the battery market in Tasmania as Apollo’s new state distributor.  Thurlow is being sued by Century.  He says the action has gone to sleep.  But Mr Michael Edmistone, General Manager of Century, says in his affidavit of 4 April 2002 those proceedings “are continuing”.  Despite this background which suggests that Thurlow might be expected to be antagonistic towards Century, he not only alerted Century to Martin’s actions now the subject of these contempt proceedings, but he has also assisted Century in this regard.  Thurlow has gone to some effort to cause trouble for Martin.  Though Thurlow was subpoenaed by Century, there is no reason to think he is in any way an unwilling witness for Century.  Thurlow’s animus against Martin and the possibility that he may have a reason for wanting to ingratiate himself with Century I think require his evidence against Martin to be treated with caution.

1. There are other reasons for such reserve.  Thurlow was concerned not to become implicated in breaching the injunction to which Martin was subject by being associated with Martin in the battery business in Tasmania:  he volunteered that he was “so concerned” about taking up Martin’s suggestion that Thurlow might like to lease for his business Martin’s premises at Burnie that he sought legal advice on whether it was permissible for him to enter into such an arrangement.  Thurlow’s solicitor, at the start of the period referred to in par 1 of the Statement of Charge, quite early in the piece, on 2 March 2000, gave Thurlow advice in the context of responding to Thurlow’s concerns about leasing the Burnie premises from Martin about how, by aiding and abetting a contempt of court by Martin, he could find himself “in very serious trouble”.  Thurlow’s solicitor concluded:

   “[B]ut any attempt to subvert the Federal Court orders by some arrangement or deal with Mr Martin will land you into serious trouble.”

2. Yet, if Thurlow’s evidence is to be believed, despite this advice he continued, throughout the twelve months after 2 March 2000, repeatedly to be a party to breaches by Martin of the restraint against the latter selling batteries in Tasmania.  It is difficult to accept that a man, sufficiently concerned in March 2000 that Century might take action against him if he were to lease premises from Martin for his own battery business to obtain legal advice on the matter, would thereafter nevertheless continue to buy batteries from Martin with knowledge of the injunction and of his exposure to liability, if he were to assist Martin to breach it.  Further, in the section of his affidavit dealing with “David Martin and Apollo Batteries”, Thurlow says Martin told him “during one or more of our telephone conversations” to cut the tops off the faxes Martin sent him so that they could not be traced back to Martin.  The implication is that faxes sent by Martin to Thurlow identified him as the sender.  Thurlow does not suggest he ever did this.  Thurlow exhibits, in Ex MT1 to MT3, a total of eight business facsimiles which he claims he received from Martin while the latter was working for Apollo.  Thurlow claims that the handwriting on each of these facsimiles is Martin’s.  If Thurlow’s evidence is correct, these facsimiles could be expected to identify Martin as the sender.  None, however, gives any support to his evidence that Martin suggested the subterfuge referred to:  where these exhibits contain facsimile markings identifying the sender, the markings identify “Apollo”, not Martin, as the sender.  For example, the price list with the handwritten date 1 September 2000 contained in Ex MT1 contains printed information at the top indicating that it was faxed by “Mercury Apollo” to Thurlow on 7 September 2000.

3. Jurd is the principal of the company that purchased Apollo Batteries in March 2000.  Century has had the co-operation of Jurd in assembling its evidentiary case, even though Century called him under a subpoena.  He says that over the next twelve months that Martin worked for him, he repeatedly - on at least eight or ten separate occasions - emphasised to Martin that he was “not permitted to continue to sell or attempt to sell batteries into Tasmania (and in particular to Mark Thurlow)”.  In oral evidence, Jurd indicated that he gave these instructions to Martin in the context of Martin telling Jurd of discussions he had had with Thurlow about the prospects of selling to Island Batteries and the prices that Apollo would need to offer Thurlow.  Jurd also indicated in oral evidence that the only sales that Apollo made to Thurlow’s company were those organised by or at the direction of Martin, including sales Martin directed to be conducted through the Hobart depot.  Jurd said that on a couple of these eight or ten occasions he instructed Martin not to get involved in Apollo’s business with Tasmania because the latter had “bragged” about having been able to make sales there.

4. Jurd said he gave his instructions to Martin because he did not want to “take the risk of ending up” in litigation with Century.  Jurd had good reason to avoid that risk.  He was aware of the outcome of the litigation between Century and Martin instituted by Century to protect its business which resulted in the restraint I have referred to being imposed on Martin and him being ordered to pay over a million dollars in damages.  However, Jurd’s conduct in taking no action against Martin other than to repeat warnings to Martin to stop involving himself in Apollo’s Tasmanian business, which Martin persisted in flouting, does not appear to be consistent with Jurd’s reason for giving those instructions, viz, his fear of being drawn into litigation with Century because of Martin’s activities.

5. There are also grounds for thinking that Jurd may not be an entirely disinterested witness as between Century and Martin.  He dismissed Martin after the latter had worked for Jurd for about twelve months.  Martin sued for wrongful dismissal, an action apparently settled before judgment.  Martin took with him to PowerCrank a body of Apollo’s customers and a number of Apollo’s staff.  Martin is now working for PowerCrank, a competitor of Apollo’s both on the mainland and in Tasmania (where Thurlow is now Apollo’s distributor).  He appears to be a very effective sales operator.  He has made no secret of the fact that he intends to get back into the battery sales business in Tasmania on his own account.

6. Jurd, in his affidavit of 5 April 2002, says:  “Mark Thurlow has not been appointed an agent of Apollo Batteries in Tasmania” and Island Batteries’ relationship with Apollo Batteries in Tasmania “does not extend beyond that of customer and supplier”.  This cannot be correct and is unlikely to be a simple mistake by Jurd.  In Apollo Batteries’ website, current as at April 2002, Thurlow is identified as Apollo Batteries’ sole agent or distributor in Tasmania.  In his affidavit sworn in December 2001, Thurlow says:  “I presently have an agreement with Apollo Batteries to distribute batteries marketed by them”.  He says that in July 2001 he became “the official distributor” for Apollo Batteries in Tasmania.  For some reason that did not emerge in the evidence, Jurd appears to want to distance Apollo Batteries from Thurlow, at least in the context of this litigation.

7. In determining whether Century has established that Martin breached the injunction in the ways alleged in pars 1 and 2(b) to (d) of the Statement of Charge, significance I think attaches to the fact that Century has confined its case to Martin’s dealings with Thurlow.  Thurlow is the major witness against Martin; he gives very damaging evidence against  him.  Jurd, the principal of Apollo Batteries, also gives detailed, unequivocally incriminating evidence against him that is almost entirely confined to Martin’s dealings with Thurlow.  Yet neither can be regarded as a disinterested or wholly reliable witness.

8. In determining whether Century has proved the allegations in the Statement of Charge beyond reasonable doubt, regard must be had not just to the evidence of Thurlow and Jurd, but to the affidavits obtained by Century from other persons.  None of these deponents was cross-examined by Martin.  This does not, I think, compel me to accept the evidence of each if there is some identifiable reason for caution.

9. Thurlow’s manager, Mr Gary Clayton, is particularly important.  Not only does he provide some support for Thurlow’s evidence, but his testimony constitutes direct proof that, on a small number of occasions, Martin did breach the injunction as alleged in par 1 of the Statement of Charge.  Clayton says that on at least three to four occasions over a period of four to six months in 2000 (which must come in part at least within the period referred to in par 1 of the Statement of Charge), he spoke with Martin about purchases that Island Batteries wished to make then or in the near future.  He concludes his evidence this way:

   “David Martin instigated the first contact I had with him in relation to purchasing batteries from Apollo Batteries.  After that time I may have telephoned him directly to advise that Island Batteries needed stock urgently and asked whether he could help.  He never advised that he was not permitted to arrange the sale of batteries to us.  I recall that he said words to the effect that Alan Burton’s sales (Apollo Hobart) were not very high and we should when ordering order direct from Alan to improve his figures and let Alan Burton take the credit for the sale.”

10. His affidavit evidence is open to be understood as saying that in his dealings with Clayton, Martin did not himself make sales of Apollo batteries to Clayton, but sought the latter’s support for Burton by urging Clayton to purchase Apollo batteries through Burton.

11. Century also relied on affidavits sworn by Messrs Geoff Martin, Ward and Ricky Webb and Ms Dearnne Wilson.  Geoff Martin (who is not related to Martin) is the Administration Manager of Victoria and Tasmania for the Lion Group of companies of which Apollo Batteries is a member.  He knew that Martin was not to have any involvement with Apollo Batteries’ business in Tasmania.  Geoff Martin does not give any evidence suggesting Martin was involved in selling to Thurlow.  Geoff Martin does says, however, that on occasion Martin raised issues with him relating to the Hobart depot in such a way as to show that he was obtaining information about Apollo’s operations in Tasmania.  But that is as far as his evidence goes.  Even if admissible, it is doubtful if it provides any support for the allegations in the Statement of Charge.

12. Mr Ward, Chief Executive Officer for Jurd’s group of companies, which includes Apollo Batteries, does not give much evidence implicating Martin in Apollo’s business dealings with Thurlow.  Most of Ward’s evidence is directed to disputing the evidence of Martin and the latter’s witness, Mr Darren Pregnell, as to Pregnell’s role within the Apollo organisation.  Ward knew of the injunctive restraint on Martin.  Apollo Batteries and Ward, its Chief Executive Officer based in Sydney, were the fourth and fifth respondents in the action brought by Century against Martin in 1998.  Century claimed that Ward, acting on behalf of Apollo Batteries, induced Martin to cause his associated company to breach its exclusive agency agreement with Century.  These breaches included the sale by Martin and his associated company of Apollo’s products in competition with Century’s in Tasmania.  Century sought injunctive relief and damages against Apollo and Ward.  Century’s action against Apollo Batteries and Ward was settled, the proceedings being dismissed by consent on 26 August 1999.  Jurd only purchased Apollo Batteries after the litigation between Century and it and Ward was settled.  Ward does say that he spoke with Martin about Apollo entering into a distributorship arrangement with Thurlow and Martin reported to Ward on his discussions with Thurlow; he does not, however, say that these discussions led to Thurlow in fact becoming Apollo’s Tasmanian distributor, as is now the case.  On occasions, he said he also discussed with Martin pricings which Martin had previously spoken to Thurlow about.  However, he does not say whether any of these discussions with Martin concerning Thurlow took place during the period particularised in par 1 of the Statement of Charge:  they may, on his evidence, have occurred during the period prior to March 2000, when Martin was working for Apollo.

13. Webb, who from February 1998 to June 2001 was employed in Hobart by Apollo Batteries as a van sales representative and then as depot manager.  He does not suggest that Martin was involved in any sales to Thurlow.  He says that in about March 2000, Martin called into the Hobart depot, introduced himself to Webb and told the latter he was working for Apollo out of its Melbourne depot.  Webb added:  “From that conversation I was aware in general terms that David Martin was not permitted to be involved in the battery business in Tasmania.”  He goes on to say that, from about March 2000, Martin spoke to him on a number of occasions about how he should perform his duties in accordance with the instructions of Burton, and, on occasions, criticised him for not doing that.  Webb also says that Martin sometimes gave him price lists, indirectly through Burton and then, after Burton ceased to work for Apollo, directly, which generally contained prices lower than those in the lists Webb got from Ward.  Webb says he refused to sell at Martin’s prices.  He says he complained to Jurd and Ward about Martin’s interference in the running of the Hobart depot by Webb, that they instructed Webb that Ward was his direct line manager but, despite his complaints, Martin persisted in giving directions as to how he should perform his duties in Hobart.  He says that Martin on occasions overrode instructions Webb had received from Apollo’s credit controller, Wilson, not to deal with particular customers who were on “stop credit”.

14. Wilson, the Credit Controller for the Lion Group, previously Credit Controller for Apollo Batteries, was also aware that Martin was not permitted to participate in the battery industry in Tasmania.  She says she had a number of discussions with Martin in which she told him that Apollo was not to deal with particular Tasmanian customers (which she did not, however, identify), but Martin told her he intended to sell to them anyway, despite her instructions, and did so.  She also says that Martin frequently challenged instructions she had given to Burton at the Hobart depot about how he was to conduct Apollo’s business there.  She also says that she recalls advising Martin that he should not sell batteries to Island Batteries, advice she says he disregarded.  Despite knowing of the restraint to which Martin was subject and despite giving this advice to Martin with that knowledge, she does not suggest she took any action against Martin or any action to draw his conduct to the notice of her superiors when she saw that he was disregarding her advice.  In any event, her evidence, lacking in specific detail, particularly as to the dates of the discussions she says she had with Martin about selling to Island Batteries, cannot, of itself, provide proof to the necessary standard of any of the allegations in the Statement of Charge.

15. There was no discussion at the hearing about the basis upon which the evidence of Ward, Webb and Wilson was admitted or about the  use the Court could make of that evidence.  Some of what Ward and Wilson had to say concerned Martin having contact with Thurlow or Island Batteries for business purposes of the kind referred to in par 1 of the Statement of Charge.  But that evidence did not show that those contacts occurred within the period referred to in the Statement of Charge.  Most of their evidence and all of the evidence of Webb was directed to establishing that, while working for Apollo, Martin was involved in marketing activities with a range of unidentified Tasmanian customers other than Thurlow.  All this evidence consists of general assertions by these deponents.  Given Jurd’s co-operation, Century should have been able to obtain documentary evidence from Apollo Batteries to show that Martin engaged in prohibited activities, similar to those in which it is said he engaged with Thurlow, with other purchasers of batteries in Tasmania.  Wilson should easily have been able to provide evidence of the sales she said Martin insisted on making over her opposition to bad paying Tasmanian customers with whom she did not want Apollo to deal.

16. Though this body of evidence from Ward, Webb and Wilson deals at a fairly high level of generality with conduct said to have been engaged in by Martin, it is, I think, admissible under s 97 the Evidence Act 1995 (Cth): see Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 at 64 - 67. The evidence led from Thurlow and Jurd directed to pars 1 and 2(b) to (d) of the Statement of Charge suggests that, in breach of the injunction, Martin behaved blatantly and persistently in the marketing of Apollo Batteries to Thurlow over quite a long period of time. The evidence, particularly from Webb and Wilson, is to the effect that Martin behaved in a similar way in participating in the marketing of Apollo Batteries to other, unidentified Tasmanian customers of that company. Their evidence shows that Martin had a tendency to engage in conduct in breach of the injunction similar to the conduct which Thurlow and Jurd said he engaged in and which is alone the subject of pars 1 and 2(b) to (d) of the Statement of Charge. The characteristics of Martin’s conduct described by Webb and Wilson show that their evidence has “significant probative value” within the meaning of that term in s 97(1) in relation to the allegations the subject of these paragraphs of the Statement of Charge. See Jacara at 69, par 76. The evidence of Ward and Wilson touching on Martin’s business dealings with Thurlow himself, though not shown to have occurred in the relevant period, has, for that reason, the same probative value. Service on Martin of the affidavits of these deponents satisfies the admissibility condition in s 97(1)(a).

17. Century has mounted a case that Martin committed a very serious contempt indeed.  It has confined its contempt allegations in pars 1 and 2(b) to (d) of the Statement of Charge to Martin’s dealings with Thurlow.  Whether that case is made out depends, in my view, upon the evidence of Thurlow and also of Jurd being accepted, at least in large part.

18. I have set out my reasons for having reservations about the reliability of the evidence of Thurlow and Jurd to the effect that over a long period Martin frequently sold batteries to Thurlow’s company.

19. The evidence of Webb, Wilson and Ward suggests that Martin did involve himself in Apollo’s business activities in Tasmania while the injunction was in force.  Their evidence provides support for the evidence of Thurlow and Jurd.  But this “similar fact evidence” is largely confined to generalised assertions, not supported by documentary proof that should have readily been available to Century.  Clayton, though directly testifying to Martin’s involvement in the marketing of Apollo Batteries to his employer Thurlow’s company, does not describe behaviour anywhere near as blatant by Martin as that the subject of the evidence of both Thurlow and Jurd.  Martin suffered severely for having been involved in the infringement of Century’s legal rights:  not only was he enjoined from being involved in battery sales in his home state Tasmania for a number of years, but he also had to pay damages of over one million dollars.  The severity of the action Century took against him clearly impressed Jurd.  It is, I think, more likely that Martin’s experiences with Century in the past would cause him to be circumspect in anything he did adverse to Century’s interests which might expose him to personal action than to lead him to behave in the blatant manner described by Thurlow and Jurd.

20. Whatever may be the proper assessment of the evidence of Thurlow and Jurd, supported as it is by the other evidence I have mentioned, if it were the civil standard of proof that was applicable, I am not prepared to accept that it has been established beyond reasonable doubt that Martin blatantly and persistently breached the injunction in the manner alleged by Thurlow and Jurd.  I am of this opinion notwithstanding Martin’s own admission that he filled up two invoices and made a price notation on one price list for Island Batteries and despite the support given to Thurlow and Jurd by their employees Clayton, Ward, Wilson and Webb.

21. However, on his own admission, Martin did have some involvement in sales of batteries made by Apollo to Thurlow in the March 2000 to March 2001 period.  Martin explained how he came to make out the two invoices of 5 September 2000:  he says the order was placed by Thurlow’s company with Apollo’s Hobart depot and forwarded by it to Melbourne.  When the carrier arrived to collect these orders, Martin was alone at Apollo’s premises and filled out the invoices to enable the batteries in question to be picked up by the carrier.  He says:  “I had no idea that this would be in breach of my order”.  He denied suggestions that these invoices show that he personally sold batteries to Thurlow.  He said he did this innocently because the storeman, who should have filled the invoices out, was absent at the time.  Even so, by doing this, I think he, at the very least, concerned himself in the distribution of batteries in Tasmania, in breach of the injunction.

1. There is a question mark against Martin’s credibility.  Martin represented himself.  Though there are conflicts between much of the affidavit evidence tendered by Century and that tendered by Martin about whether he engaged in the enjoined business activities alleged, Martin cross-examined only two of Century’s witnesses, Jurd and Thurlow.  I do not accept Martin’s evidence, given in an interruption to his closing address in which he first raised the allegation, that he confined cross-examination to Jurd and Thurlow only because he was misled by an employee of Century’s solicitors into thinking that if he required others of Century’s deponents to attend for cross-examination, it would be at his cost, something he could not afford:  the employee in question gave sworn evidence contradicting Martin’s evidence on this issue and he did not wish to cross-examine her.  The impression I have gathered from the evidence he gave under cross-examination by senior counsel for Century on this issue is that he confined his cross-examination to Jurd and Thurlow only, for tactical reasons, not because he was misled into thinking he would have to pay for the attendance of other Century deponents.

2. I do not think that Martin was as meticulous as he and Burton claim in keeping himself almost completely at arm’s length from anything to do with the battery market in Tasmania.  On his own admission, he filled out the two invoices I have referred to.  Further, I am satisfied that he did speak with Thurlow from time-to-time about Thurlow purchasing batteries from Apollo, but a lot less frequently than Thurlow suggests.  Both Thurlow and his manager, Clayton, refer to Martin’s concern in contacts they each say he had with them to urge them to make their purchases from Apollo through Burton, rather than other Apollo employees in Hobart such as Webb, because Burton’s sales were not very high and it would assist Burton if his figures could be improved.  Webb also has a good deal to say about Martin emphasising how he should defer to Burton.  Martin was, I think, protective of his close friend and concerned that his job with Apollo was at risk.  Burton appears to have lost his job with Apollo in March 2001 and was replaced as Hobart manager by Webb.  I do not, however, think Martin sought on these occasions to complete sales transactions with Thurlow or Clayton.  Rather do I think that he sought on these occasions to assist his close friend Burton in maintaining a good sales record within Apollo.  Burton may well have been under pressure to do this.  Burton was, in fact, dismissed by Apollo in mid 2000 and Webb took his place as Hobart Depot Manager.

3. I am satisfied beyond reasonable doubt that Martin involved himself in breach of the injunction as alleged in par 1 of the Statement of Charge firstly, by filling out the two invoices on 5 September 2000 and, secondly, by having some discussions in the period referred to in par 1 of the Statement of Charge with Thurlow and Clayton in which he solicited purchases of batteries through Burton while the latter was working for Apollo.  However, I am not satisfied beyond reasonable doubt that Martin engaged in a protracted course of blatant disregard of the injunction, as Century alleges in the case it has mounted in relation to par 1 of the Statement of Charge.

4. Century also alleges in par 2 of the Statement of Charge that from March 2001, while working for PowerCrank Batteries, Martin further breached the injunction.

5. Martin’s activities, while employed by PowerCrank Batteries from March 2001, said to infringe the injunction are much less extensive than those to which Thurlow (and Clayton) depose and the evidence touching on this part of Century’s case is limited.  The only probative evidence from Century that Martin breached the injunction by soliciting business for PowerCrank Batteries comes from Thurlow.

6. Thurlow says that soon after Martin commenced work with PowerCrank Batteries in about March or April 2001, he telephoned Thurlow to tell him of his new employment and that he wanted to “throw his hat into the ring” as a potential supplier of batteries to Thurlow.  Thurlow also says that on 24 March 2001 he received a PowerCrank company profile by facsimile signed by Martin as “National Sales & Marketing, POWERCRANK Batteries” from Martin.  This facsimile is headed with this date and the words “From:  David Martin” and “Phone No:  0418 130658”.  Thurlow also says that on or about 2 April 2001, he received by facsimile from Martin a PowerCrank pricing list.  There is nothing on the top of this second facsimile purporting to identify who sent it.  It is a printed form.  At the bottom in the same font as most of the rest of the text is the following:

   “DAVID MARTIN
   NATIONAL SALES & MARKETING

   POWERCRANK BATTERIES
   PH:  0421 066622”

7. The evidence supporting par 2(b) to (d) of the Statement of Charge is confined to what Thurlow says about Martin’s call, his receipt of these two faxes and Thurlow’s telephone records showing a small number of calls from his telephone to Martin’s.

8. Thurlow does not suggest he, after the latter joined PowerCrank, bought any batteries from PowerCrank after Martin joined that company.  Martin denies having any contact with Thurlow regarding PowerCrank.  Martin says he prepared the company profile and faxed it to all he described as “my Victorian customers” to let them know he was now working for PowerCrank.  I accept the managing director’s evidence that Martin’s role in the PowerCrank organisation is confined to Victoria.  Martin must have set up the PowerCrank fax machine to display his name and mobile telephone number at the top of each fax he decided to send to former customers in Victoria to let them know he was now with PowerCrank.  But Martin’s witness Pregnell says it was he who sent the PowerCrank fax bearing Martin’s name and telephone number to Island Batteries soon after he followed Martin to PowerCrank Batteries.  He says he sent the company profile to Thurlow because he knew Thurlow also bought batteries from Apollo Batteries and had sent the company profile to all his customers before he went out to try and bring them across to PowerCrank.  There is nothing that I can see in the evidence concerning this fax that necessarily contradicts Pregnell’s evidence.

9. Given that Century carries a high burden of proof, I do not think the form of either fax, even coupled with Thurlow’s evidence, provides a sound foundation for drawing inferences against Martin that he is guilty of contempt as alleged in par 2(b) to (d) of the Statement of Charge.

10. By par 2(a) of the Statement of Charge, it is alleged that Martin was in contempt by being involved in negotiations for the lease of premises at 94 Central Avenue, Derwent Park for the benefit of PowerCrank Batteries.  94 Central Avenue is the address of PowerCrank Batteries in Hobart, of which Burton is currently the manager.  It leases the building at the rear of that address.  The building at the front is occupied by the owner of the premises, a Tasmanian trade union.

11. The only evidence supporting this allegation is contained in certain passages in the affidavits of Jurd, which I excluded as hearsay, and in par 6 of Ward’s affidavit.  Consistently with my approach in excluding hearsay evidence from Century’s affidavits, this paragraph should have been rejected, but was overlooked.  I would not, in any event, accept it as establishing beyond reasonable doubt that Martin was involved in activities said to infringe the injunction in this respect.  Burton and PowerCrank’s managing director, Samlidis, both give direct evidence contradicting the hearsay information reported by Ward (and Jurd).  I accept the evidence of Samlidis that it was Burton who approached him in April 2001 with the suggestion that he should be employed as PowerCrank’s store manager in Hobart and could assist in securing for PowerCrank the lease of a building at the rear of 94 Central Avenue, Derwent Park. 

12. Century further alleges in par 3 of the Statement of Charge that Martin breached the injunction by filling out and filing in the office of Corporate Affairs in Hobart the change of particulars in relation to the registered business name “Tasmanian Batteries”.

13. “Tasmanian Batteries” is registered with Tasmanian Corporate Affairs as the name under which Kilsman Pty Ltd carries on business.  That company was the company which entered into the exclusive distributorship agreement with Century that the latter terminated and made the subject of its 1998 action against Martin and others.  Martin remains associated with it.  Martin has kept this business name registered.  Corporate Affairs records show that in late 2001, he changed the address of its principal place of business (which was shown as 92 Central Avenue, Derwent Park in the period 1 December 1998 to 1 October 2001) to 94 Central Avenue as from 1 October 2001.  Martin is recorded in these records as the “Person(s) carrying on Business (current)” as from 1 October 2001, ie, as the person carrying on business under the name “Tasmanian Batteries” from that date.  Though he is still living in Melbourne, he showed his residential address as 8/6 Katoomba Crescent, Rosetta - Burton’s flat.

14. Apart from the statements in the Corporate Affairs records, there is no evidence that at any time during the currency of the injunction or even now, Martin has been carrying on any business in Tasmania under the name “Tasmanian Batteries”.  Though PowerCrank, Martin’s employer from March 2001, operates from the rear of the 94 Central Avenue premises, there is no evidence that it makes any use of the registered name “Tasmanian Batteries” in its business.  Century has been prepared to invest considerable effort in these proceedings against Martin.  It would be a simple matter for it to have adduced evidence that a business appears to be operating from 94 Central Avenue under the name “Tasmanian Batteries”, if such evidence were available.

15. I accept Martin’s evidence that he had to update the registered particulars of “Tasmanian Batteries” at regular intervals and that he furnished the information currently contained in Corporate Affairs records with the intention that, once the injunction expired, he would resume selling batteries in Tasmania under the name “Tasmanian Batteries” from the premises in Central Avenue in Hobart.  Martin said that he had plans to lease a portion of the front of the building at 94 Central Avenue from the union and to commence trading as “Tasmanian Batteries” on his return to Hobart (and that he actually took out a lease from the union of the part of the premises fronting on to 94 Central Avenue after the injunction expired).  None of those actions involves any breach of the injunction.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated:            6 June 2002

Counsel for the Applicant:	CEK Hampson QC
Solicitor for the Applicant:	Kinneally Miley
Counsel for the Respondent:	The respondent appeared in person.
Dates of Hearing:	14 and 15 May 2002
Date of Judgment:	6 June 2002