mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bush v The Queen [1993] FCA 361 ; (1993) 43 FCR 549
Outcome: discussed
As well as Browne v Dunn itself, Cadbury cited in support of this proposition the decision of the Full Court in Bush v The Queen [1993] FCA 361 ; (1993) 43 FCR 549. That case concerned an appeal from a jury's conviction of the appellant for attempted murder of his second wife and murder of her lover. Evidence was given by a Mr Saulwick of a survey of persons in the Australian Capital Territory as to their knowledge of the appellant's conviction five years earlier of the manslaughter of his first wife and the effect any such knowledge would have on their opinion as to his likely guilt of a similar offence in relation to the second wife. This evidence was adduced in support of an application for leave to challenge jurors as to cause. There was discussion at 557 by Drummond J (with whom Davies and Miles JJ agreed) critical of the usefulness of the survey. In substance his Honour found it was not useful and not a sufficient basis for its conclusion that at least one member of the jury would have connected the appellant with the 1987 killing and, for that reason, would have found the appellant guilty of the 1992 offences. Davies J at 551-552 also gave reasons for his conclusion that the survey questions were "misconceived". Mr Saulwick was cross-examined. It may be that some matters relied on by their Honours were not put to him. For example, in making the point that the sample was drawn from ACT voters and not the more limited population of the ACT eligible for jury service Drummond J said at 557: "This may or may not affect Mr Saulwick's opinion". If anything, the case seems contrary to Cadbury's argument. In any event, Browne v Dunn is not mentioned.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] HCATrans 468
Outcome: cited
Cadbury applied to the High Court for special leave to appeal against the Full Court's remission of the matter to the primary judge. The application was refused: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] HCATrans 468.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 ; (2007) 72 IPR 261
Outcome: cited
I found in favour of Darrell Lea: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446 ; (2006) 69 IPR 23 (the earlier judgment). Subsequently the Full Court upheld Cadbury's appeal on the ground that I had wrongly excluded evidence sought to be adduced by Cadbury from three expert witnesses, Dr Brian Gibbs, Dr Constantino Stavros and Mr Timothy Riches (collectively, the Cadbury experts): Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 ; (2007) 72 IPR 261 ( Full Court I ).
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446 ; (2006) 69 IPR 23
Outcome: cited
I found in favour of Darrell Lea: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446 ; (2006) 69 IPR 23 (the earlier judgment). Subsequently the Full Court upheld Cadbury's appeal on the ground that I had wrongly excluded evidence sought to be adduced by Cadbury from three expert witnesses, Dr Brian Gibbs, Dr Constantino Stavros and Mr Timothy Riches (collectively, the Cadbury experts): Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 ; (2007) 72 IPR 261 ( Full Court I ).
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363
Outcome: cited
The evidence of the Cadbury experts had been excluded ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 at [8] - [18] ) on the ground that an expert's opinion is not admissible as to matters within the experience and knowledge of a judge or jury ( The Queen v Turner [1975] QB 834 at 841, Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111) and specifically in relation to "ordinary human nature, that of people at large" ( Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119) such as purchasers of everyday consumer items ( Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] ); see also JD Heydon Cross on Evidence (7 th Australian ed, 2004) at 930.
Case: Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133
Outcome: cited
Nevertheless s 80 of the Evidence Act deals only with the admissibility of evidence. It does not affect the approach to particular kinds of evidence in particular categories of cases. In Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] in the context of a s 52 and passing off case (and well after the introduction of the Evidence Act ), Branson J, after noting that both sides had called evidence of marketing consultants which was received without objection, said: However, I consider it appropriate to record that in the particular circumstances of this case, which is concerned with the packaging of a product intended to appeal to a wide segment of the general public, I have found the expert evidence of no real assistance. This is not only because there is, as is common in cases of this kind, conflict between the evidence of the two experts. It seems to me that evidence of opinions based on market research and expert appreciation of consumer behaviour will rarely be of assistance in litigation where the Court's primary concern is with the behaviour to be expected of, and the judgments likely to be made by, ordinary (even if it might be thought, somewhat credulous) members of the community intent on making a relatively modest purchase in a conventional way. I endorse the comment of Beaumont J in Pacific Publications Pty Ltd v IPC Media Pty Ltd [2003] FCA 104 at [92] that where a claim is essentially a matter for the Court's impression, expert views which are merely 'impressionistic' can be given no more than nominal weight. These observations are not intended in any way to belittle the importance of market research and expert appreciation of consumer behaviour in other types of cases and for other purposes.
Case: Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504
Outcome: cited
The evidence of the Cadbury experts had been excluded ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 at [8] - [18] ) on the ground that an expert's opinion is not admissible as to matters within the experience and knowledge of a judge or jury ( The Queen v Turner [1975] QB 834 at 841, Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111) and specifically in relation to "ordinary human nature, that of people at large" ( Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119) such as purchasers of everyday consumer items ( Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] ); see also JD Heydon Cross on Evidence (7 th Australian ed, 2004) at 930.
Case: Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215
Outcome: cited
In Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] , a Full Court of this Court cited the above passage with approval and continued: 22 Consideration of these difficulties shows the practical wisdom of the firm rule that the likelihood of conduct being misleading or deceptive is a question for the tribunal of fact and not for any witness to decide: General Electric Co (USA) v General Electric Co Ltd [1972] 1 WLR 729 at 738 per Lord Diplock, applied in a s 52 context by Gummow J, with whom Black CJ and Lockhart J agreed, in Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 at 387. 23 Lord Diplock points out in General Electric that a different rule applies in the case of sales not to the general public but in specialised markets concerning persons engaged in a particular trade. In the present case the relevant market is that in which the consumers are business users of domain names. Such users constitute large sections of the public and are not participants in a specialised market in the sense discussed by Lord Diplock. 87 In its written submissions Cadbury cited numerous decisions which were said to involve facts or issues similar to the present case and statements of judges about the facts in those cases. For its part, Darrell Lea sought to draw different messages from those, and other, cases and statements. Without wishing to disparage the industry of counsel, I did not find this exercise particularly helpful. I repeat the statement of Lord Oliver in Reckitt &amp; Colman Ltd v Borden Inc (1990) 17 IPR 1 at 7, quoted in the earlier judgment at [120]. Mutatis mutandis , similar considerations apply to the trade practices claims. As was pointed out in Domain Names and Interlego (see [49]-[50] above), these are jury questions. A jury would not be asked to consider what was said by judges in other cases because a jury has to apply legal principle to the facts before it, and no other facts.
Case: J McPhee &amp; Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532
Outcome: cited
As to the application of Browne v Dunn in modern commercial litigation, see also Australian Competition and Consumer Commission v J McPhee &amp; Son (Australia) Pty Ltd (1998) ATPR (Digest) |P 46-183 at 50,323, approved on appeal: J McPhee &amp; Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532 at [103] - [107] .
Case: Jones v Dunkel (1959) 101 CLR 298
Outcome: cited
Cadbury submitted that the failure of Darrell Lea to adduce evidence (expert or lay) as to the effect that third party use of purple has adversely impacted Cadbury's reputation in Cadbury purple meant that the Court ought to draw a Jones v Dunkel (1959) 101 CLR 298 inference that any evidence it might have sought to adduce would not have assisted its case in this respect. I do not agree. There was substantial evidence of the fact of third party usage given by Darrell Lea's Mr Michael Lea (earlier judgment [52]-[54]) and evidence of Cadbury's "Co-existence Agreement" with Nestl&eacute; under which Cadbury agreed not to object to Nestl&eacute;'s use of get-ups for Violet Crumble (a chocolate-coated honeycomb bar which might be said to verge on the iconic), Wonka, Quality Street and Polly Waffle, all of which featured purple ([55]-[56]). For its part Cadbury adduced evidence of its efforts to restrain third party usage, which met with mixed success ([57]-[67]). There was evidence of actual third party usage in the present case sufficient for the Court to make its own findings. 59 Mr Riches said that the third party products "did not come close to dominating the chocolate confectionery market in the same way as Cadbury Dairy Milk" and that no other brand consistently used purple as a "brand identity element" in promotional campaigns. Dr Stavros thought that purple used with Polly Waffle and Violet Crumble were "product specific instances of the use of a colour, rather than a corporate or master branding or mega branding". However, the lack of specialised knowledge of the confectionery market of these witnesses has already been noted. 60 Dr Stavros said that some consumers would pick up a Violet Crumble, see the Nestl&eacute; brand and "make the connection between those brands [ie Nestl&eacute; and Cadbury] and be aware that there's a distinction between those organisations". He continued: There's a scope though for other consumers to see the purple, relate that to the Cadbury brand and either believe that the product comes from Cadbury, or that there is some association between those organisations, I think that's possible it's very possible. Dr Stavros' hypothesis, involving as it does a very well known non-Cadbury manufacturer and a very well known non-Cadbury product, is speculative and quite unrealistic.
Case: Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94
Outcome: cited
The evidence of the Cadbury experts had been excluded ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 at [8] - [18] ) on the ground that an expert's opinion is not admissible as to matters within the experience and knowledge of a judge or jury ( The Queen v Turner [1975] QB 834 at 841, Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111) and specifically in relation to "ordinary human nature, that of people at large" ( Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119) such as purchasers of everyday consumer items ( Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] ); see also JD Heydon Cross on Evidence (7 th Australian ed, 2004) at 930.
Case: Parkdale Custom Built Furniture v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: applied
One additional aspect of trade practices law which should be mentioned is that conduct which results in mere confusion, or consumers being "caused to wonder", does not amount to misleading and deceptive conduct within the meaning of the statute. The position is to be distinguished from that in trade mark law. In Parkdale Custom Built Furniture v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 198 Gibbs CJ said: In McWilliam's Wines Pty Ltd v McDonalds System of Australia Pty Ltd (1980) 49 FLR 455 it was rightly held by Smithers J and by Fisher J that to prove a breach of s 52 it is not enough to establish that the conduct complained of was confusing or caused people to wonder whether two products may have come from the same source, and that Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 , a decision on the Trade Marks Act 1905 (Cth), as amended, is distinguishable. I need not add to what their Honours said on this subject (1980) 49 FLR, at pp 458-459, 475-476. Likewise in Taco Co (Aust) Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 201 Deane and Fitzgerald JJ said: Conduct which produces or contributes to confusion or uncertainty may or may not be misleading or deceptive for the purposes of s 52. In some circumstances, conduct could conceivably be properly categorized as misleading or deceptive for the very reason that it represents that confusion or uncertainty exists where, in truth, there is no proper room for either. Ordinarily, however, a tendency to cause confusion or uncertainty will not suffice to establish that conduct is of the type described in s 52. The question whether particular conduct causes confusion or wonderment cannot be substituted for the question whether the conduct answers the statutory description contained in s 52. Much of Dr Gibbs' opinions as to misinference and misassociation would seem to be examples of the "caused to wonder" reaction by consumers (and others such as employees and competitors). Insofar as they are, they would seem to raise matters outside the purview of the Trade Practices Act or the tort of passing off, even if they are matters of commercial concern to Cadbury.
Case: Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1
Outcome: cited
In Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1 Tamberlin J discussed the application of the Rule in Browne v Dunn in the context of a copyright infringement case where one issue was whether a Mr Ron Lewy had, as he claimed, spoken by telephone to a German company and received certain assurances about copyright arrangements in Australia in respect of CDs which Mr Lewy's company was about to import. The trial judge had not accepted that the words were said. In the Full Court Tamberlin J said at 14-15: The submission made to this court is that because it was not specifically and expressly put to Mr Ron Lewy, in cross-examination, that the statement was not made, the rule of professional practice enunciated in Browne v Dunn (1893) 6 R 67 was breached and therefore the evidence should have been ignored or the matter reopened. The failure by his Honour to address the point was said to amount to procedural unfairness. Counsel referred to a number of decisions including Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 at 554 7. Ultimately, the rule in Browne v Dunn is one of procedural fairness. Whether his Honour should have taken any action in relation to the failure to put the disputed words called for the exercise of a discretionary judgment on his part. As Hunt J has pointed out, in Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 26 7; (1983) 44 ALR 607 , the rule is designed to ensure fairness to the witness so as to enable the witness to deal with the disputed matter and perhaps to give further evidence in corroboration or to contradict any inference which may be sought to be drawn. See also Dolan v Australian &amp; Overseas Telecommunications Corp [1993] FCA 202 ; (1993) 42 FCR 206 at 207 8; [1993] FCA 202 ; 114 ALR 231 ; Marelic v Comcare [1993] FCA 599 ; (1993) 121 ALR 114 at 119 20. It is common ground that it was not expressly put to Mr Ron Lewy that the words were not said. In commercial litigation (including intellectual property matters), where issues are clearly defined, there will often be no point in formally challenging every aspect of the evidence which is contested. There will often be a large number of matters in respect of which it will be apparent from the pleadings and particulars there is clearly a contest. Where this is the case the principle need not be applied in an unduly technical way. After discussing the evidence, his Honour continued: The rule may be satisfied where the witness is on notice that the version given is disputed and such notice may come from pleadings, the opponent's evidence or opening, or from the general manner in which the case is conducted.
Case: Reckitt &amp; Colman Ltd v Borden Inc (1990) 17 IPR 1
Outcome: applied
In its written submissions Cadbury cited numerous decisions which were said to involve facts or issues similar to the present case and statements of judges about the facts in those cases. For its part, Darrell Lea sought to draw different messages from those, and other, cases and statements. Without wishing to disparage the industry of counsel, I did not find this exercise particularly helpful. I repeat the statement of Lord Oliver in Reckitt &amp; Colman Ltd v Borden Inc (1990) 17 IPR 1 at 7, quoted in the earlier judgment at [120]. Mutatis mutandis , similar considerations apply to the trade practices claims. As was pointed out in Domain Names and Interlego (see [49]-[50] above), these are jury questions. A jury would not be asked to consider what was said by judges in other cases because a jury has to apply legal principle to the facts before it, and no other facts.
Case: Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Outcome: cited
Likewise in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236 Mahoney JA said: ...failure to cross-examine a witness may not found such an assumption or render the course of the trial unfair if it is clear from the manner in which generally the case has been conducted that his evidence will be contested. This was pointed out by Lord Herschell ([in Browne v Dunn] at 71). The nature of the defendant's case and the particulars given, and otherwise the conduct of it may make it sufficiently clear that such an assumption is unwarranted and that there has been no surprise or prejudice concerning the matter.
Case: Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1
Outcome: cited
The evidence of the Cadbury experts had been excluded ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 at [8] - [18] ) on the ground that an expert's opinion is not admissible as to matters within the experience and knowledge of a judge or jury ( The Queen v Turner [1975] QB 834 at 841, Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111) and specifically in relation to "ordinary human nature, that of people at large" ( Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119) such as purchasers of everyday consumer items ( Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] ); see also JD Heydon Cross on Evidence (7 th Australian ed, 2004) at 930.
Case: Taco Co (Aust) Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
Outcome: applied
One additional aspect of trade practices law which should be mentioned is that conduct which results in mere confusion, or consumers being "caused to wonder", does not amount to misleading and deceptive conduct within the meaning of the statute. The position is to be distinguished from that in trade mark law. In Parkdale Custom Built Furniture v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 198 Gibbs CJ said: In McWilliam's Wines Pty Ltd v McDonalds System of Australia Pty Ltd (1980) 49 FLR 455 it was rightly held by Smithers J and by Fisher J that to prove a breach of s 52 it is not enough to establish that the conduct complained of was confusing or caused people to wonder whether two products may have come from the same source, and that Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 , a decision on the Trade Marks Act 1905 (Cth), as amended, is distinguishable. I need not add to what their Honours said on this subject (1980) 49 FLR, at pp 458-459, 475-476. Likewise in Taco Co (Aust) Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 201 Deane and Fitzgerald JJ said: Conduct which produces or contributes to confusion or uncertainty may or may not be misleading or deceptive for the purposes of s 52. In some circumstances, conduct could conceivably be properly categorized as misleading or deceptive for the very reason that it represents that confusion or uncertainty exists where, in truth, there is no proper room for either. Ordinarily, however, a tendency to cause confusion or uncertainty will not suffice to establish that conduct is of the type described in s 52. The question whether particular conduct causes confusion or wonderment cannot be substituted for the question whether the conduct answers the statutory description contained in s 52. Much of Dr Gibbs' opinions as to misinference and misassociation would seem to be examples of the "caused to wonder" reaction by consumers (and others such as employees and competitors). Insofar as they are, they would seem to raise matters outside the purview of the Trade Practices Act or the tort of passing off, even if they are matters of commercial concern to Cadbury.
Case: The Queen v Turner [1975] QB 834
Outcome: cited
The evidence of the Cadbury experts had been excluded ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 at [8] - [18] ) on the ground that an expert's opinion is not admissible as to matters within the experience and knowledge of a judge or jury ( The Queen v Turner [1975] QB 834 at 841, Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111) and specifically in relation to "ordinary human nature, that of people at large" ( Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119) such as purchasers of everyday consumer items ( Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] ); see also JD Heydon Cross on Evidence (7 th Australian ed, 2004) at 930.