R.R. & S.M. Powell Pty Ltd v Cafike Pty Ltd (trading as the Port Arthur Cider Co.)

[1987] FCA 598

. NQT FOR -PAL DISTRIBUTION

b-

JUDGMENT No. 548.{.81

IN THE FEDERAL COURT OF AUSTRALIA )

)

TASMANIA	DISTRICT	REGISTRY	)	T. No. G 2 of 1987
)

c q p a r	n T v y T n n T
BETWEEN :

2 . R .	h S.M.	POWELL PTY. LTD.	Appllcant
and

CAFIKE PTY. LTD.

trading as THE PORT ARTHUR CIDER CO. Respondent

m: NORTHROP J.

: 30 SEPTEMBER 1987

PLACE: HOBART

MINUTES OF ORDER

2. The applicant pay the respondent's costs of the motion

1ncludlng any reserved costs on that rnotlsn.

(Settlement and entry	of Orders is dealt with in 0.36 of	the
Rules of Court.)

IN- THE FEDERAL COURT OF AUSTRALIA )

1

TASMANIA DISTRICT REGISTRY	1	T. No. G 2 of 1987
)
GENERAL DIVISION	)

R.R. S.M. FOELL PTY. LTD. Bppllcant

and

CAFIKE FTY. LTD.

trading as THE FORT AR"UR CIDER CO. Respondent

COURT: NORTHROP J.

DATE : 30 SEPTEMBER 1987

pLAcE: HOBART

EX W O R E REASONS FOR JUM;MENT

This is the return of a motlon dated 2 June 1987 in which the applicant is moving the Court for orders that the

respondent has committed a contempt in connection with

proceedings and that it be punished for that contempt. The

order of the Court made on 4 March 1987 was that untll

further order:-

"The Respondent be restrained and an Injunctlon is

hereby granted restralning the Respondent, Its

servants or agents from promoting, marketlng,

distributing or selling any fruit, fruit juice or

other fruit product in any bottle, carton or other

container bearing or including the word 'Grove' or

'Grove Apple Mald' . "

- 2 -

In accordance with the provlsions of 0.40 r.6 of

the Rules of Court, a statement of charge was glven In

connection with the motion by the	applicant. That statement
of charge reads as follows:-

"The respondent waa on or about the 26th and 27th

days of May 1987 in contempt of an order made by

this Honourable Court on the 4th day of March 1987

In izhat the respondent by lts servants or agents

promoted and distributed fruit ~ u i c e in contamers

bearing the word 'Grove' . "

The affidavits in support of the motion show that

on 26 and 27 May 1987 containers of fruit juices were seen in

display refrigerators at retail stores In various suburbs I n

Hobart containing containers which, on their face, contained

fruit julces and which were stated to be boctled by Port

Arthur Cider Co. being the business name under whlch the

respondent apparently carrles on its business, and on some of

those containers there appeared the word "Grove." In other

cases the word "Grove" had been partlally obllterated by some

sticker and In other cases the contamers dld not bear the

word "Grove. "

The question immediately arises whether on that

evidence it can be establlshed that the respondent by Its

servants or agents promoted and distributed fruit juice in

containers bearing the word "Grove." The mere fact that a

retailer, not being the respondent, sells or displays for

sale containers containing, under the label of the

respondent, fruit luices in containers and bearing the word

' .

- 3 -

"Grove" is not evidence that the respondent by Its servants

or agents promoted and dietributed frult juice In containers.

There are a number of reasons why that is so.

There is no evidence as to how or when those containers came

into the possession of the retailers in the stores. It is

quite possible that these containers containing the word

"Grove" had been there prior to the date of the in~unction

being made on 4 March 1987. In order to establish a

contempt, it is necessary for the applicant to show that it

was the respondent by Its servants or agents iiolng something

or other, namely, promoting and distributing fruit luices in

these containers. It would have been fairly smple to obtain

evidence from the retailers as to when they acquired or

purchased or received these containers, but there 1s no	such
evidence at all.

It is argued that in the context of the

circumstances of this case the retailers were In the nature

of agents of the respondent, but I reject that argument. In

the injunctlon, the words "servants or agents" are used as

lndicatlng persons who are doing the blddlng of the

respondent, which 1s a company, and does not Include

retailers with whom the respondent may have commercial

dealings. In my opinion, the applicant has falled to prove

that the respondent by its servants or agents promoted and

distributed fruit juices in containers bearlng the word

"Grove. I'

.

. - 4 -

The evidence relied upon does not go to that issue,

It goes to the issue of the fact that the retallers sold

those containers and had those containers available and on

dlsplay for sale but there 1s a vital llnk mlsslng In a chaln of proof required in this case. The mere fact that the

labels contained the name of the respondent by itself, again,

is not sufficient to establish or provide that misslnq link.

That depends upon evidence of what action was taken by the

respondent itself, by its servants and agents, to promote

those fruit julces in containers. Accordingly, the appllcant having falled to prove Its case, the motlon must be refused.