Tony Blain Pty Ltd t/as Acme Merchandising v Splain, Andrew Matthew

[1993] FCA 1066

/VS, 73

JUDGMENT No. ..,......,.....,.. l , ,,,... ,,.,

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 141 of 1993

1

GENERAL DIVISION 1

BETWEEN :  TONY BLAIN PTY LIMITED t/as
ACME MERCHANDISING

Applicants

AND:  ANDREW MATTHEW SPLAIN & ORS

Respondents

28 June 1993

REASONS FOR JUDGMENT

LOCKHART J.

This is a motion (heard to-day) by the first applicant in proceeding NG 141 of 1993 seeking the punishment of the fifth respondent to that proceeding, Adrian Bernard Williams (said to be also known as Adrian Bernard Clark or Glen Bernard Burgess) for contempt. The circumstances out of which the alleged contempt arises may be briefly stated.

including 26 March, 1993 from: 

Proceedings were commenced in this Court by the applicant to the motion against various respondents including Mr Williams, who was named as the fifth respondent to the principal proceeding. On 19 March, 1993 a judge of the Court sitting in Sydney, made certain orders in the proceeding including an order restraining the respondents, including Mr Williams,up to and

In t r a d e or commerce o f f e r i n g for s a l e or

s e l l i n g merchand i se i n c l u d i n g T-shirts , head

b a n d s , badges , c a p s and programs which

d e p i c t s or makes reference t o the name	o f
Paul	McCartney w i t h o u t the license o f the

a p p l i c a n t , Paul McCartney, MPL Tours

I n c o r p o r a t e d , MFL Tours L i m i t e d or a n y other

person or company a u t h o r i s e d t o g i v e a n y

s u c h license or approval on their b e h a l f . "

Mr Williams appeared in Court before Whitlam J that day and his Honour carefully explained to him the nature of the order being made against him and the consequences of breach of that order.

The statement of charge which accompanies the notice of motion for contempt, after reciting that order of 19 March, 1993, states that:

" A t a p p r o x i m a t e l y 11.35 pm on S a t u r d a y , 20

March,	1993,	a t	the	E n t e r t a i n m e n t	Centre,
D a r l i n g Harbour,	Sydney ,	Mr	W i l l	i a m s	was

s e r v e d w i t h a s e a l e d c o p y o f the c o u r t ' s

o r d e r o f 19 March, t o g e t h e r w i t h c o p i e s o f

a n a p p l i c a t i o n and s u p p o r t i n g a f f i d a v i t s and

a written form o f u n d e r t a k i n g . "

The statement of charge states that:

" A t a p p r o x i m a t e l y 8 pm on Monday, 22 March,

1993, i n the vicinity o f Parramatta S tad ium,

Mr W i l l i a m s , w i t h o u t the license o f the

a p p l i c a n t , Paul McCartney, MFL Tours

I n c o r p o r a t e d , MPL Tours L i m i t e d or a n y other

person	or	company	a u t h o r i s e d	t o	g i v e	a n y
s u c h	license	on	their	b e h a l f	o f f e r e d	for

s a l e t o the p u b l i c	T-shirts b e a r i n g the name
Paul McCartney -"

and that he thereby contravened the Court's order.

The fourth statement of charge is that:

" A t approximately 10.30 pm on the fo l lowing

n i g h t , Tuesday, 23 March, 1993, i n the

v i c i n i t y o f Parramatta Stadium, Mr Will iams,

without the l i c e n s e o f - "

the applicant or the other persons previously mentioned:

" - d i d o f f e r f o r s a l e	t o the pub l i c T - s h i r t s
bear ing t h e name Paul	McCartney and thereby

contravening t h e Court's o r d e r . "

The evidence in support of the motion, apart from the formal evidence proving compliance with Division 2 of the Court's rules which has been established, consists of the affidavit of Raymond John Larkin, a broker. Mr Larkin, in his affidavit, gave evidence in support of the statement of charge. Mr Larkin also

He was cross-examined by Mr Williams and he was asked some	came to court today at my suggestion and he gave oral evidence.	questions by me.
Mr Williams appeared today in support of his own defence. He is not represented by counsel or solicitors. Of course, it is always helpful to litigants to be represented by barristers or solicitors, in particular in cases of this kind. Although he was not represented I do not think he has suffered on that account.
Mr Williams gave evidence today and he presents a version of the events of 22 and 23 March which in some respects is not very different from the evidence of Mr Larkin, but in other respects is materially different. M r Williams says in essence that a though he was at Parramatta Stadium on 22 March he was

i

tickets in the early part of the evening and was not T-shirts that night at all and certainly not at about 8 pm. Mf Larkin confirmed the evidence given in his affidavit. As to the events of 23 March, Mr Williams agrees that he was at the Parramatta Stadium on that evening but he denies that he was selling T-shirts then at all and in particular at about 10.30 pm when Mr Larkin says he observed him selling T-shirts.

I have heard both Mr Larkin and Mr Williams and I have assessed their evidence. I propose to apply the criminal standard of proof to the motion for contempt. There is a difference of judicial opinion in this Court as to whether proof of contempt must be beyond reasonable doubt or whether it is	sufficient to adopt the lower threshold of the higher end of the	Briginshaw scale. Until the matter is definitively resolved by
a Full Court, I propose to apply the onus of proof beyond reasonable doubt. Applying that standard, I am of the opinion that Mr Larkin is the preferred witness. His evidence is more credible and more in accord with the probabilities. I accept his evidence. It follows that to the extent of any inconsistency, I do not accept Mr Williams . I find the charges have been proved to the requisite standard.
The question arises as to what should be done by way of penalty. I do not feel in the circumstances that it is appropriate to impose a term of imprisonment upon Mr Williams. On the other hand, the contempt is serious, because Mr Williams was told by a judge of the Court what the consequences were of failing to comply with the order and he did fail to comply with it. He, in fact, has deliberately infringed it, albeit it would seem with minimal pecuniary benefit to himself. But nevertheless he has deliberately infringed the order.
He told me from the bar table (and that course has not been opposed by counsel for the applicant) of his financial position which suggests that he is unemployed, is receiving unemployment benefits and has very few assets and limited income. Although it is not uncommon for a fine to be imposed as a mark of the Court's sanction (and time to pay may be granted to a respondent in these circumstances), I do not think it is the appropriate course to take in the present matter. I think it is right that
an order for costs be made on an indemnity basis in favour of the
applicant against Mr Williams. I propose to do that, but I think it is sufficient, apart from the order for costs, if the Court censures him for his breach of the Court order. The Court censures Mr Williams for his contempt of Court.
I have been asked by counsel for the applicant, and Mr Williams does not oppose the course, for the Court to assess the costs rather than proceeding to taxation. I assess the costs at $2000 which I think is at the lower end of the scale of costs that would ordinarily be allowed on taxation.
Accordingly, the Court having found the contempt proved and admoniqhed the respondent, the Court orders the respondent, Adrian Bernard Williams, to pay the applicantf S costs of this motion on an indemnity basis assessed by the Court in the sum of
$2000. The enforcement of the order for costs is to be stayed
until the expiration of four months from today.

I certify that this and the

preceding five (5) pages are a
true copy of
judgment her-eln

Mr. Justicz'e

l

~ssociate\, &L \,

Dated: 28 June 1993

. J. Nicholas

Counsel for the Applicants

Solicitors for the Applicants :	Tress Cocks andMaddocks
The respondent appeared for himself.

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Date of Hearing 28 June 1993

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Date of Judgment 28 June 1993