Natural Floor Covering Centre Pty Ltd v Monamy

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 As explained in my reasons for judgment, which I delivered on 12 April 2006, the applicant has charged the respondent with contempt of orders made by Wilcox J on 15 December 2005. Pursuant to an amendment which I granted following my observation in giving judgment on 12 April 2006 there that there may be duplicity in the framing of charge 2, that charge has now been amended to read: '2. The Respondent is guilty of contempt of Court in that in breach of the order referred to in paragraph 1 herein, the Respondent has from 16 February 2006 to 20 March 2006 used and displayed a sign on the website www.naturalfloorcoverings.com.au ('Website') that is the same or substantially identical with the following: 2 The evidence which was led in-chief remains that which was before me on 12 April 2006, supplemented by further evidence from the applicant that during the course of this week, the respondent's website has ceased to use the spiral device. 3 That evidence may have been led on the basis of my having erroneously amended charge 2 to a form that did not specify that the date of 20 March 2006 was the final date of the alleged contempt, as noted in the reasons I gave earlier this afternoon. Be that as it may, the respondent applied to cross-examine Mr Dowe and Ms Than, and he was permitted to do so. 4 In their evidence this morning, the respondent elicited that the spiral, as they perceived it to be on the respondent's website, was similar to or identical with that in the applicant's trademarks. During the course of the cross-examination of the applicant's two witnesses today, the respondent sought to elicit concessions that the material which appeared on their computer screens, as described by each of Ms Than and Mr Dowe in their evidence, could have been what had been held in the disk cache of their respective computers, as an earlier version of the respondent's website. When he elected to give evidence later in the hearing today, the respondent repeated that there was a possible explanation that that which the applicant's witnesses perceived was different to what was actually on his website, because of the storage by the respective viewers' computers of an image downloaded at an earlier time and automatically made to appear on the screen on the next, or subsequent, visitations by those viewers. 5 This was said to occur because the web browser being used by the viewer may not have been set to reload the page visited on the internet on each visit, but may have been set only to refresh itself from the actual webpage at longer intervals. If what was displayed on the viewer's screen was that which was stored in the viewer's computer's cache, then the applicant's witnesses would be looking at a repetition of what they had accessed at an earlier time, and not at the actual contents of the respondent's webpage on the day on which they said they were viewing that webpage. 6 The respondent was seeking, as I understood it, to convey there may be reasonable doubt as to whether, when the applicant's witnesses described what they said was on the respondent's webpage on the days they viewed it, was in fact there, as opposed to it being simply what had been stored in a viewer's computer's memory or cache, being different to what was actually on the respondent's webpage when subsequently accessed. Apart from the respondent's assertions of differences, which were vague and in general terms, there was no evidence of any material difference in what may have been on the respondent's webpage from day to day during the period 16 February 2006 to any period up to, as the evidence progressed this morning, earlier this week. 7 During the cross-examination of Mr Dowe, it emerged that the roll or spiral device used from 16 February 2006 until at least 20 March 2006 on the respondent's site appeared on the left-hand side of the screen initially as a line that then rolled up into the carpet roll or spiral shape, and then unrolled as it progressed across the screen to the right. However, there does not appear to be any dispute that the screen grabs, which appeared on pp 36 and 37 in Mr Dowe's affidavit of 3 March 2006, accurately depicted portions of the animation complained of. 8 That animation was described in my earlier judgment, Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518 at [6]-[8] and [30]-[32]. However, it seems to me that there is a slight difference between the evidence on the previous occasion and that today in that what I recorded in [2006] FCA 518 at [31] as an observation about the form of the evidence on that occasion suggested that the spiral or roll design itself appeared initially on the screen, whereas in fact, the evidence today satisfies me beyond reasonable doubt that what initially appeared on the screen to the left-hand side during the period between 16 February 2006 and 20 March 2006 was a line that then rolled into the carpet roll or spiral shape, and then unravelled as it passed across to the right-hand side of the screen. In screen grab number 1 that Mr Dowe took, the spiral shape distinctly appears close to but distinctly to the left-hand side of the computer screen. 9 The respondent agreed, during the course of his evidence, that during the period between 16 February 2006 and 9 May 2006, that while there may have been different versions of the animation that appeared on his webpage, in each version, there appeared the words 'Simply Natural Floorcoverings' and the carpet roll or spiral design. I am satisfied beyond reasonable doubt that that, in fact, was the true position. 10 Order 1, made on 15 December 2005, restrained the respondent from using or displaying any sign, symbol or device that was the same or substantially identical with the trademarked carpet roll or spiral design, and the words 'Simply Natural Floorcoverings'. The respondent has argued that the fact that the design of the carpet roll or spiral does not appear on the screen contemporaneously with the words 'Simply Natural Floorcoverings', and that when it does appear, it is of a different size and colour, raises a reasonable doubt that what has been proved to have occurred on his website during the period 16 February 2006 to 20 March 2006 is a contravention of order 1, as charged. 11 The question for decision is whether the evidence establishes that the use of the animation which causes to be portrayed at different times and at no time together the elements of the sign that is the subject of charge 2 and order 1, amounts to a contravention of that order. Having considered the further evidence called today, together with the evidence on the previous hearing, I am satisfied beyond reasonable doubt that the depiction of the carpet roll or spiral device on the respondent's website is a depiction of that which was the same or substantially the same as in trademarks. Likewise, I am satisfied beyond reasonable doubt that the words 'Simply Natural Floorcoverings' (with 'Floorcoverings' as a single word) during the period 16 February 2006 to 20 March 2006 was, again, established on the evidence. 12 Whether the animation itself, with its distinct elements of those words and the spiral design, amounts to a breach of the order as charged, depends on what an ordinary, reasonable person would understand to be being conveyed by the animation, viewed as a whole. The order prohibited the use and display of a sign, and charge 2 reflects that language. I am satisfied beyond reasonable doubt that by causing the animation to produce, in sequence, what is ultimately the shape that amounts to the spiral or carpet roll design, and then the words 'Simply Natural Floorcoverings', the respondent has used and displayed a sign on his website in contravention of order 1 as charged in amended charge 2. 13 In coming to that view, I have had regard to the explanations given by the respondent in his evidence. I am satisfied beyond reasonable doubt that no substantive change occurred to the respondent's website during the period 16 February 2006 to 20 March 2006 which affects the finding I have just made as to the use and display of the sign in contravention of order 1. I am satisfied beyond reasonable doubt that I do not accept any suggested explanation by the respondent that any changes to his website or any operation of disk caches in viewers' computers of either Mr Dowe or Ms Than has caused them to give evidence that the respondent's website was depicting something other than that which they themselves saw on the days and at the times they gave evidence that they saw it. 14 I reject as implausible and unbelievable the assertions that the respondent made which suggested that there may have been any such difference. He is a person who is obviously intelligent and capable. He knew precisely how to obtain clear evidence to show first that he had complied with the orders, as he asserted he had done, and secondly that what was depicted on the website, in the way that Ms Than and Mr Dowe described in their evidence as appearing on the website, is different, if that were remotely possible, to what was in fact on his website. I am satisfied beyond reasonable doubt that I do not believe that the respondent had made any change of substance to his website so as to cause whatever appeared there to be compliant with order 1, made by Wilcox J on 15 December 2005 in a way that did not contravene that order as alleged in the amended charge 2. 15 I have had regard to the demeanour of the respondent in forming my assessment of his truthfulness on this matter, but I have placed considerable weight on the unsubstantiated way in which he gave the evidence, and the way in which he sought to use the suggestion of the disk cache being able to produce material onto a viewer's screen which was different to that which was in fact on the website being visited on that occasion. I have also had regard to the evidence of the respondent that although he changes his website frequently, he did have on his computer images with the changes that he made as from time to time they were, and kept backup copies. 16 I am satisfied, having seen and heard him, that if any evidence existed which would have exonerated him on this point, the respondent would have produced that evidence, and I disbelieve him beyond reasonable doubt that he has such evidence, or that there is any suggestion there is such evidence in existence to support a reasonable doubt that what Mr Dowe or Ms Than deposed they saw was other than what was on the respondent's website on the days and at the times at which they gave their evidence of having seen it. In particular, I am satisfied beyond reasonable doubt that what is in the screen grabs produced in Mr Dowe's affidavit on pp 36 and 37 was in fact what was on the respondent's website on 21 February 2006. 17 For the reasons given above, I find the respondent guilty of contempt of Court, in that in breach of order 1 made by Wilcox J on 15 December 2006, the respondent had, from 16 February 2006 to 20 March 2005, used and displayed a sign on the website that is the same, or substantially identical with, the following: