Case: Eveready Australia Pty Ltd v Gillette Australia Pty Ltd [1999] FCA 1379 at [23]
Outcome: followed
Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 (31 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 364 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 EVIDENCE whether survey evidence is admissible whether exception to the hearsay rule applies - whether discretion should be exercised to exclude survey evidence non-compliance with Practice Note 11. Evidence Act 1995 (Cth) ss 72 , 190 (3), 135 Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 cited Eveready Australia Pty Ltd v Gillette Australia Pty Ltd [1999] FCA 1379 at [23] followed CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD (No 2) NO. VID 555 of 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. VID 555 of 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 31 MARCH 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The affidavit of Caroline Judy Shelton and exhibits thereto will be admitted into evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LES CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 31 MARCH 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 12 Finally, as to whether it would cause or result in undue waste of time, I must say I am troubled by the attitude that Cadbury's solicitors have taken to the Practice Note No. 11. No explanation has been proffered for the non-compliance in relation to this survey. As Tamberlin J said in Eveready Australia Pty Ltd v. Gillette Australia Pty Ltd (1999) FCA 1379 at par [23] : "The purpose of the practice note - which was issued as long ago as 8 April 1994 - is to minimise costs and hearing time by obtaining an early determination as to the admissibility and form of survey evidence." 13 However, counsel for Cadbury is, I think, correct in saying there is no evidence before the Court to draw any inference as to the absence of compliance with Practice Note 11. It would be wrong to use the exercise of discretion under s 135 in effect as a punishment for non-compliance with the Practice Note. It is well established that compliance with the Practice Note is not a criterion of admissibility. 14 As to undue waste of time, senior counsel for Darrell Lea criticised the report. For example, he said there was a disproportionate number of female participants and failure to disclose the protocols. If these points are taken up in cross-examination, they may cause some time to be taken up. Perhaps that is a waste which could have been avoided if the Practice Note had been followed, but in all the circumstances I do not think I can say it will be an undue waste of time. So the affidavit of Ms Shelton will be received. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ruling herein of the Honourable Justice Heerey. Associate: Dated: 7 April 2006 Counsel for the Applicant: A J Myers QC and M D Wyles Solicitors for the Applicant: Mallesons Stephens Jaques Counsel for the Respondent: C Golvan SC and S Ricketson Solicitors for the Respondent: Middletons Lawyers Date of Hearing: 31 March 2006 Date of Judgment: 31 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/364.html