Lane Industries Pty Ltd v Ponrak Pty Ltd

[1989] FCA 115

.	IN THE FEDERAL COURT	OF AUSTRALIA	)
1

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G72 of 1989
)

G E N E 3 A L DIViSION

BETWEEN:  LANE INDUSTRIES PTY
LIMITED

Appl I can t

AND :  - PONRAK PTY LIMITED

First Respondent

AND :

- DAVID CHAPMAN

Second Respondent

- AND : COLIN MOSS

Third Respondent

- DIANNE SEWELL

AND :

Fourth Respondent

- GORDON ROBERTS

AND :

Flfth Respondent

AND :  - JAMES HUNTER

Sixth Respondent

AND :  - DIANNE HUNTER

Seq-eqth Respondent

c o w :	Davies J.
-	DATE :	10 March 1989
PLACE :	Sydney

AND :  - ROCKY CAVALLARO

Eighth Responde!.t

- TONY CONSENTINO

AND :

Nrnth Respondent

The motion to deal wlth the sixth and seventh

respondents f a r contempt arises out 3f orders made by
consent on 17 February 1989. They were orders whlch, in
their general effect, sought to restraln the slxth and
seventh respondents and all other respondents from uslng the
name "Solartint" in relation to a buslness that was not the

business of the Solartint organlsatlon.

Since 17 February 1989, certain actions have

occurred both at premises at Brookvale and at premises at

Auburn. At both premises, a wind- +i-ting business had

been carried on and, prior to 17 February, Solartint
products had been used.

With respect to the Brookvale premises, affidavrts by Carmel Gallop and by John Savage depose to conversatlons

taking place which would have amounted to contempt if t had

been established that the persons speaking were servants or

agents of the sixth and seventh respondents or that what

occurred was otherwise done for or on behalf of t3e -ixth or

seventh respondents.

In this respect, however, evidence of any

connection is minimal. The evidence given 1 s that a window tinting business had been carried on at Brookvale by the sixth and seventh respondents up to March 1988 and slnce that time, the business has been carried on by the eighth

and ninth respondents. Although the sixth and seventh
respondents have had some connectlon with the business r t
has not been a connection as proprietor or principal of the

business. Rather, assistance has been given l n the purc?.ase

of goods. Assistance has also been given this year	~n
making avallable for the business the new name of	" P r o t l n t " .

It does not seem to me that the Court has heard all

that can be said about the relationship and there are some
strange aspects of the evidence. Nevertheless, the evidence
presently before the Court does not estaailsn, either beyond
reasonable doubt or on the balance of probability, that any
such connection exists between the sixth and seventh
respondents and the business carried on at the Brookvale
premises-as would make them responsible for the telephone
conversations. I do not think I need deal with that matter

in any more detail.

With respect to the Auburn premises, lt is clear

that one or two things have occurred which are a breach of

the orders. However, the question arises whether the

evidence goes only as far as showing mere dilatoriness in

removing signs and the like or whether there was posrtlve

representation of an association with Solartint.

There is an affidavit from Mrs Glenda Lane, who

deposed to a conversation on 21 February 1989 with a M C Greg Williams, in which Mrs Lane alleged that MC Williams said that the product being sold by the Auburn business was the

same product, Solartint, as had prevrously been supplred.

I t appears, however, that the date deposed to must

have oeen wrong for I accept evldence that M C wllllams was

away from work 111 on 21 February. Mrs Lane then suyyesced

22 February; but again there was evidence whrch I thlnk
should be accepted that Hr Wrllrams was away on that day.
These difficulties with her proof lead me to say that I am
not satisfied beyond reasonable doubt that there was any
action or statement by M T Williams on those days that could

be the subject of concempt proceedings.

The next affidavit of significance is an affidavit

from Hiss Donna Herbert. It appears that Hiss Herbert had a vehicle od.which she wished to have window tinting carrled

-	gut. She went to the premises of Solartint, Blacktown, and
was there referred to che premises at Auburn. She has glven evidence of a conversation, the terms of which have been denied by Mrs Hunter and M r Williams. She has deposed that
Mrs Hunter said that "We used to be in Solartint and are ln
partnership with Solartint, but we now operate under the
name of Protint."

Now, that 1s an mportant allegation but I have

come to the view that I should not accept it as proved beyond reasonable doubt. It seems to me that Miss Herbert varied a little in the terms that she used throughout the

course of her evidence under cross-examlnation. It seems to

me also that her understanding of the posltion was clouded

by the fact that she had been sent by the retail manager a f
Solartint, Blacktown, with the instruction that the Auburn
premises w e r e a Solartint retall outlet centre. Any
mlsunderstandlng she had was not lnltlated soieiy by

anything Mrs Hunter said but was contributed to by Mr

Bamford. So for that reason I do not flnd that allegation

established with the necessary strength.

Miss Herbert also gave evidence of having seen a

large Solartint sign painted on the brick wall outside the

premises. There is a photograph of that sign, Exhibit " A " ,

in evidence and it is clear enough that that sign, which is
a very large one indeed, would be a breach of paragraph B of

Order 1 which prohibits the respondents:-

"B. In trade or commerce representing bv arv

means vhatsoever that vindov tinting film sold

or offered for sale or caused to be sold or

offered for sale by the Respondents or any of

them and not supplied to the Sixth and Seventh Respondents by the Applicant are sponsored or approved by the Applicant or are the products

of the Applicant or	of any person or
corporation sponsored, approved	or in any vay
affiliated vith the Applicant."

With respect to that matter, there is no contest, the

defence being taken that M r and Mrs Hunter had made
arrangements with a palnter to remove the sign and the
painter had been dilatory in attendance and, ultimately, at
a subsequent date, they had to arrange for their own workman

to overpaint the sign.

. "iss Herbert has also deposed to the fact that

there were a number of pamphlets and posters with the word,

"Solartint", pinned on the walls	of the premlses. Wlth
respect to thls, i t is conceded that there was	a t least 3ne

document on the wall wlth the Solartint name on lt. I t 1s

not necessary to determine whether there were a number of
documents or whether there was only one. Having that
document on the wall was, again, a breach of paragraph B of

Order 1.

Finally, Miss Herbert has deposed to the fact that

there were Solartint invoices and guarantees in trays on a

desk in the premises. That evidence has been denied. Mrs
Hunter has given evidence that she was collating books of
invoices and guarantees and that she had them on the
premises,-though she says they were boxed on the relevant
day, 1 March 1989; but Miss Herbert has given evidence that
she saw them.

I am prepared to accept Miss Herbart's evidence in that respect for it seems to me highly unlikely that she

would have deposed to something that she did not actually
see.	I do not draw from that, however, the view that the

invoices and guarantees were dellberately left out for
customers to inspect them, because Mrs Hunter has glven the
evidence and there is no reason to doubt it, that she was

collating these thlngs with a vlew to provldrng discovery.

Accordingly, I find that the charges are proved

insofar as there was a breach of paragraph B of the orders

of 17 February in that the advertising slgn, Solartint,
appeared on one of the exterior walls, lnsofar as there was
at least one document on the wall whlch was a Solartlnt

document carrying the name Solartint and lnsofar as there

were still scme Solartint invoices and guarantees	in t h e
premlses where they could be seen by the publlc.

I therefore order by way of penalty that the

applicants costs of this proceeding be paid by the slxth and
seventh respondents.

I certify that this and the 6 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justlce Davies.

Associate: a--J?&k@	Date:	10 March 1989
Counsel for the applicant:	M K S.	Finch

Solicitors for the applicant:  COKKS Pavey Whlting h
Byrne

Counsel for the sixth h seventh

respondents:	M K D.	Hlggs
Solicitors for the sixth h seventh

Coleman respondents: h Grelg

Marc hearing: 10 of Date 1989