Natural Floor Covering Pty Ltd v Monamy

Federal Court of Australia|2006-05-09|Before: Then Dixon J, Rares J

REASONS FOR JUDGMENT 1 When I was delivering my judgment ex tempore in this matter on 12 April 2006, it occurred to me for the reasons I then gave (Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518 at [34]-[35] ('the first judgment') that charge 2 was bad for duplicity: Johnson v Miller (1937) 59 CLR 467. Then Dixon J said (59 CLR at 489-490): 'For, in many cases, evidence of more than one offence cannot be admitted, and under one charge to take evidence of a number of separate instances of the commission of the same offence because each will indifferently fit the complaint is to pursue a course contrary to law. It cannot be enough to require the complainant to elect among the instances he has proved after his evidence has been given in full. Where an information or complaint is so drawn as to disclose more than one offence and one set of facts amounts to each of the various offences covered by the charge, as was the case in Johnson v. Needham ((1909) 1 KB 626; 100 LT 493), the proper course is to put the complainant to his election. In such a case, to wait to the end of his evidence before doing so may be convenient and may cause no injustice. But it is the converse of the present case, where the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.' (emphasis added) 2 On 12 April 2006 I directed the applicant to file and serve by 19 April 2006 written submissions as to whether charge 2 was bad for duplicity, whether it ought be amended and if so what amendment was sought. The applicant applied to amend charge 2 in its submissions dated 18 April 2006. I also directed the respondent to file and serve any submissions in response by 28 April 2006. The respondent has not filed any submissions.

submissions 3 The applicant has submitted that the principle in Johnson v Miller (1937) 59 CLR 467 is designed to prevent unfairness and prejudice. It seeks to amend charge 2 so as 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 December 16 February, 20056 (Being the date first date on which there is evidence in respect of symbol and wording (i.e., the 'sign') on the Website (Tab 3, [15]-[16]) used and displayed a sign, symbol and device on the website www.naturalfloorcoverings.com.au ('Website') that is the same or substantially identical with the Applicant's registered Trade Marks Numbered 981970 and 1013021, including the following: 4 The applicant contends that the use of the sign which appeared in the sequence described in the first judgment ([2006] FCA 518 at [4]-[9], [30]-[33]) as alleged in the amended charge 2 is to be treated as a single act rather than a sequence of acts. The whole sequence, it was argued, constituted a depiction which, when taken together, amounted to the display of one sign which was the same or substantially identical with the sign specified in order 1 and amended charge 2.

consideration 5 I am satisfied that in the circumstances of this case no injustice has been caused to the respondent by allowing the hearing to have proceeded as it did notwithstanding the duplicity in charge 2. Here, the facts were substantively unchallenged. Rather, it was the interpretation of the unchallenged facts which was in issue. The applicant has identified the evidence on which it relies in support of the charge as being that in Ms Than's affidavits sworn 2 March 2006 (pars 16(a)-(e)) and 20 March 2006 (pars 4-9) and Mr Dowe's affidavit sworn 3 March 2006 (pars 19-20 and the screen grabs at pages 36-37). 6 The amendment of charge 2 which has been sought will confine the unchallenged evidence to a narrower use for a shorter period than before. The respondent has had ample opportunity to consider his position and has made no submissions as to the course I should follow. 7 I am of opinion that in the circumstances and for the reasons above, I should allow the amendment of charge 2 as sought (Johnson v Miller (1937) 59 CLR at 489: cf John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519-521; s 51 of the Federal Court of Australia Act 1976 (Cth); see too s 22). 8 I will allow the respondent the opportunity to consider whether he wishes to call any evidence and to make submissions as to whether he ought be permitted, if he so chooses, to further cross-examine in respect of amended charge 2. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate: Dated: 9 May 2006 Counsel for the Applicant: CD Freeman

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