Case: Lee v The Queen [1998] HCA 60 ; (1998) 195 CLR 594
Outcome: applied
Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 (7 April 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 386 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 (7 April 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 EVIDENCE hearsay market research reports whether received as proof of truth of contents whether discretion under s 136 of Evidence Act should be exercised Evidence Act 1995 (Cth) ss 9 , 60 , 77 , 136 Lee v The Queen [1998] HCA 60 ; (1998) 195 CLR 594 applied Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 cited Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 cited Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 378, 382 applied Ligertwood, Australian Evidence , 4 th ed, 2004, at 495 Australian Law Reform Commission Report 102 at 7.96, 10.147 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD (NO 3) NO. VID 555 OF 2005 HEEREY J 7 APRIL 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: 7 APRIL 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The documents produced by the applicant's witnesses referred to in these reasons are not received as proof of the truth of their contents. 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 NO. VID 555 of 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 7 APRIL 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". 3 Whether right or wrong, I think it is clear that that is the basis on which I admitted the documents. Nevertheless some uncertainty has arisen. Accordingly further argument took place in which, amongst other things, more informative reference was made to s 60 of the Evidence Act 1995 (Cth) (the Act) and its application by the High Court in Lee v The Queen [1998] HCA 60 ; (1998) 195 CLR 594. 4 The documents in question are: Witness Document no, title and date A J Nowicki 23 FrontLine Research 2002 G R K Slater 13 Elliott &amp; Shanahan Research to Cadbury 10 November 1992 14 Elliott &amp; Shanahan Report December 1992 15 Elliott &amp; Shanahan Report 1993 34 Beveridge &amp; Cummings CDM Research Report May 1996 M J Busuttil 6 FrontLine Research De-brief 2001 Research De-brief September 2001 8 CDM Brand Architecture Research De-brief June 2002 10 Frontline Masterbrand Packaging Research September 2002 11 RIQ Report December 2002 15 Research paper Jigsaw stage one February 2003 26 Engagement Sue Cummings Research September 2002 27 Sue Cummings Research Report September 2002 R N Heath 2 Sue Cummings Global Packaging Report May 1998 5 Senior counsel for Darrell Lea categorized the representations made in these documents in terms which seem to me a fair summary. He said they contain: &#8226; Assertions as to facts made by the authors, eg as to inquiries the authors have made or things they have done in the preparation of the document; &#8226; Assertions of opinion on the part of the authors, ie their conclusions based on what they may have seen or observed; and &#8226; Assertions as to representations that have been made by third parties, such as participants in consumer surveys and focus groups, and that have been recorded in the document by the authors. For example, in the last-mentioned report there are reported statements in relation to Cadbury's peppermint chocolate "The green ooze is coming out" and "The green writing that says peppermint you usually associate green with peppermint". 12 In Lee the appellant had been convicted on a charge of armed assault with intent to rob Mrs Patricia Jones, the owner of a video store in Paddington. Lee and another man came into her shop. One of them produced a gun and demanded money. In an episode no less dramatic than scenes in some of her videos, Mrs Jones threw a cast iron tape dispenser at the man with the gun, picked up the stool on which she had been sitting and jabbed at him across the counter. The gun discharged. The man who had fired the gun picked up the cash register but Mrs Jones hit him again with the stool. The men fled empty-handed. 13 Shortly afterwards police officers saw Lee and another man, one Romeo Calin, in Kings Cross Road. The police arrested both men. Calin told the police, both orally and in a written statement, that he had seen Lee (although he did not know his name) and asked him to repay an $80 debt. He said Lee was walking fast and was sweaty. He also told the police that Lee had said to him: "Don't bother me. I have just done a job. I fired two shots. The other guy bailed out." The police allowed Calin to go home, presumably being satisfied he was not Lee's accomplice. 14 When called as a witness at the trial, Calin said that he could not recall any conversation with Lee apart from a request to repay the debt. The prosecution was given leave to cross-examine him about his statement. In the High Court's view at [12] the trial judge's charge to the jury would have been understood as an instruction that if they were satisfied that Lee had said those words to Calin, they were a confession by Lee. 26 Senior counsel for Cadbury submitted that Lee is not explicable on the basis of secondhand, or double, hearsay. He said that the true key to the case was to be found in [29] of the judgment (quoted at [20] above). The representation in Lee was not one that a certain thing had happened, but rather that someone had said it had happened. 27 With respect, I do not agree with this reading of Lee . As appears above, their Honours make it clear that, quite apart from the asserted truth basis, secondhand hearsay per se is not admissible under s 60: see also Ligertwood, Australian Evidence , 4 th ed, 2004, at 495. In a recent joint report on the Act published in December 2005, the Australian Law Reform Commission, in association with the New South Wales and Victorian Law Reform Commissions and after a consultative relationship with law reform bodies in Tasmania, the Northern Territory, Western Australia and Queensland, appears to accept (albeit reluctantly, and with a recommendation for change) that Lee decides that secondhand and more remote hearsay does not fall within s 60: ALRC Report 102, NSWLR Report 112, VLRC Final Report at 7.96, 10.147. 28 Where A in evidence states what B has said out of court that C has said to him (B), if B's intention to assert the truth of C's statement is the sole criterion then the result presumably will turn on the court's finding as to the subjective intention of B. Members of the general populace, unburdened with the laws of evidence, will often assert the truth of something said to them, just as often they will pass on something said for what it is worth. To hypothesise a variation on the facts of Lee , what if Calin was not just a casual acquaintance and creditor of Lee but a close criminal companion of long standing. In the light of that Calin believed, and had every reason to believe, that Lee was telling the truth when he said that he had "done a job". It was the sort of thing which, to Calin's knowledge, Lee habitually did. The hypothetical Calin, unlike the real life Calin, was convinced that Lee had committed the crime; he told the police as much and provided convincing detailed reasons. In other words, Calin asserted to the police that what Lee had told him was true. Would the confession by Lee to Calin have been admissible as truth of its contents? On the asserted truth basis of Lee perhaps yes, but on the secondhand hearsay basis, no. 29 Moreover, where A tenders evidence of a statement out of court by B as to what C had said, and if what C said is admissible if B intended to assert the truth of it, then if C had said what D had said what E had said, E's statement would be admissible as truth of its contents as long as there was an assertion of intention to convey truth by everybody along the chain. 30 I think therefore that the safer ground on which to decide the issue in the present case is that what various study participants (the equivalent of Lee) said to the authors of the reports (the equivalent of Calin) given to the Cadbury officers (the equivalent of the police) is inadmissable as being secondhand hearsay.