Tasmaid Foods Pty Ltd v Rosendale Trading as Sunnyside Dairy
[1990] TASSC 102
•7 June 1990
Serial No B25/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION:Tasmaid Foods Pty Ltd v Rosendale trading as Sunnyside Dairy [1990] TASSC 102; B25/1990
PARTIES: TASMAID FOODS PTY LTD
v
ROSENDALE, trading as SUNNYSIDE DAIRY
FILE NO/S: 164/1990
DELIVERED ON: 7 June 1990
JUDGMENT OF: Neasey J
Judgment Number: B25/1990
Number of paragraphs: 7
Serial No B25/1990
List "B"
File No 164/1990
RASMAID FOODS PTY LTD
v ROSENDALE TRADING AS SUNNYSIDE DAIRY
REASONS FOR JUDGMENT NEASEY J
7 June 1990
This is an interlocutory application in an action between the abovenamed parties, whereby the plaintiff is seeking an injunction against the defendants restraining them from carrying on business as a milk or dairy produce vendor by selling or delivering milk liquid products to customers otherwise than in accordance with the terms of a licence granted to them pursuant to the Dairy Industry Act, 1976; and damages in the alternative. The application is to have the defendants committed to prison for contempt of court, upon the basis that they did on a stated day deliver milk to servants or agents of a business known as "Ralph's Super 7" and another business known as "Caterer's Market", contrary to an order made by Wright J in this court on 7 March 1990.
I am satisfied that the order was made; that the first defendant was present in court when it was made, and that it was served upon both defendants as set out in Affidavits of Service filed herein. I am also satisfied that the notice of this present application was also served upon the defendants according to the Affidavit of Service. I accept the evidence of the process server, Mr George, which amplified the material set out in the Affidavits of Service.
The principal question is whether it has been proved beyond reasonable doubt that the defendants or their servants or agents did in fact deliver milk to the parties named in the application, or their servants or agents, or either of those parties, contrary to the terms of the licence on the day named in the application. It is common ground that the standard of proof required is proof beyond reasonable doubt – in re Bramblevale Ltd [1970] 1 Ch 128. the evidence supporting the application is principally that contained in an affidavit of Roger Fernandez a private investigator. Mr Fernandez deposes in substance that on 11 April 1990 he followed a Betta Milk truck from the Betta Milk Depot at 67 Chapel Street, Glenorchy to Mornington. This Betta Milk truck was being driven by the first defendant, Rex Brazendale. It delivered milk to various addresses, and he then saw it parked in the premises of the Sun Valley Inn at 322 Cambridge Road, Mornington. At all material times, this Betta Milk truck was being driven by the defendant, Mr Brazendale. The deponent observed the apparent unloading of milk into a van which had "Caterer's Market" written on the side. Persons whom he described appeared to be keeping watch while the apparent unloading process was occurring. One of those persons was one whom he had previously seen at a business known as "Ralph's Super 7". He believed that person to be the manager of that business. Mr Rex Brazendale was also present while the apparent unloading was going on. The affidavit describes other circumstances which can be described as unusual with an ordinary day to day delivery of milk. I shall not stop to set them out in detail. The Betta Milk truck left the Sun Valley Inn car park, but the Caterer's Market van did not. Later in the early hours of that morning, the Betta Milk truck arrived back at the Sun Valley Inn. The defendant, Rex Brazendale, alighted from it. The deponent saw another male person removing crates of milk from the Betta Milk truck and placing them in the rear of the van marked Caterer's Market. The crates were full and they contained cartons of milk. A female person was also present. Shortly after, a Ford Econovan arrived and reversed up to the back of the Betta Milk truck. The deponent had previously observed this Econovan at a business called Ralph's Value Plus on 9 April 1990. The driver of the Econovan was the same person whom the deponent had earlier that morning seen, and who he believed was connected with the business Ralph's Super 7. The Econovan was reversed up to the back of the Betta Milk truck, but the deponent could not see whether any milk was placed in the Econovan. The Econovan and the Caterer's Market van left the area, followed by the Betta Milk truck. The first two vehicles drove towards Hobart, and he followed them. As he followed the Econovan on the Highway he could see that "there was milk stacked up as high as the rear of the window". There were at least twelve crates of milk stacked in the rear of the Econovan, and he could identify the milk cartons as belonging to Betta Milk. The Econovan and the Caterer's Market van both drove into Campbell Street and both reversed into the business in Campbell Street known as Caterer's Market. The deponent was not in a position to see milk being unloaded from the vans.
There is also evidence produced by the applicant from a witness, Mr Pearce, concerning a Mrs Paine, but I do not refer to it in detail because I do not think it assists resolution of the issues here.
In my view, the evidence is insufficient to prove according to the required standard of proof a delivery of milk outside the terms of the respondent's licence (which are set out in the copy licence exhibited as part of the papers filed herein) to a business called Ralph's Super 7, but the evidence is sufficient to prove beyond reasonable doubt that a delivery of milk outside the terms of the licence was made on the day stated to servants or agents of the business known as Caterer's Market. The licence permits the defendants to sell milk to all consumers within the area specified on the map attached to the licence, who purchase less than 16 litres of liquid milk products in a single delivery, and are known as "retail customers"; and all consumers who purchase 16 litres or more of liquid milk products in a single delivery and who are listed on attachment "A" to the licence, known as "wholesale customers". It is common ground that the licence area to which the respondent's licence applies is wholly on the Eastern Shore of Hobart, and that the location of the Sun Valley Inn is within the licence area. Accordingly, it is within licence conditions to make a delivery of milk to a retail customer in that area. The deliveries of milk to which the evidence refers were made at that location, and consequently it is necessary for the applicant to prove beyond reasonable doubt that the deliveries of milk in the present case were deliveries to one or more wholesale customers – that is, deliveries of 16 litres or more of liquid milk in each delivery.
The evidence which tends to prove that the deliveries in question were of a quantity of 16 litres or more is mainly circumstantial, but in my opinion it is sufficiently strong to warrant a conclusion beyond reasonable doubt that the delivery to the Econovan and the Caterer's Market van at the Sun Valley Inn premises together totalled 16 litres or more. The descriptions of full crates of milk being placed in the rear of the Caterer's Market van, and of crates of milk being stacked up as high as the rear of the window of the Econovan tend to prove that the total quantity would probably have exceeded 16 litres; but the additional circumstantial evidence is, in my view, sufficient to advance that proof to a degree beyond reasonable doubt. The circumstances in which the deliveries were made on the Eastern Shore, the place of delivery and the manner in which persons appeared to keep look out while the deliveries were made, and other covert or clandestine circumstances noted by the deponent, Mr Fernandez, plus the apparent nature of the customer in Campbell Street, and the fact that the end product of the exercise was a delivery to Campbell Street, all combine sufficiently to establish, in my view beyond reasonable doubt, that the delivery to Caterer's Market was a delivery to a wholesale customer, and was a delivery known by the defendants to be not in accordance with the terms of their licence.
I therefore find that there has been a deliberate breach of the terms of the order made by Wright J, and that such deliberate breach amounts to contempt of court. In my opinion, a fine and an order for payment of costs will be sufficient penalty – see O73 r8, and Australian Meat Industry Employees Union and Ors v Mudginberri Station Pty Ltd (1986) 66 ALR 577; Concrete Constructions Pty Ltd and Anor v Plumbers & Gasfitters Employees Union of Australia & Anor (1987) 72 ALR 415. The defendants will be fined the sum of $300.00 and given one month to pay; and also will be ordered to pay the costs of and incidental to this application, such costs to be taxed as between solicitor and client.
0
2
0