Case: Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19]
Outcome: followed
Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (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 363 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 EVIDENCE opinion evidence as to likely consumer behaviour excluded not outside the knowledge and experience of a trier of fact evidence of opinion as to ordinary human nature not admissible alternatively evidence would be excluded on discretionary grounds Evidence Act 1995 (Cth) ss 79 , 135 Makita Australia Pty Ltd v Sprowles Pty Ltd [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [85] not followed Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [16] followed Neowarra v Western Australia (No 1 ) (2006) FCR 208 at [16], [21]-[27] followed Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19] followed Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 649 cited R v Turner [1975] QB 834 at 841 followed Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111 followed Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 followed Velevski v The Queen [2002] HCA 4 ; (2002) 187 ALR 233 cited Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527 cited Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] 1 IEHC 1 at [20] cited Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119 followed Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] cited Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] cited Ligertwood, Australian Evidence , 4 th Edition, 2004 at 494 Heydon, Cross on Evidence , 7 th Australian Edition, 2004 at 930 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD NO. VID 555 OF 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY 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 affidavits of Brian John Gibbs are not 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 LEA 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". 7 However, I accept the submission of senior counsel for Cadbury that this aspect of Makita has not been followed in the Federal Court. The lack of proof of a substantial part of the factual basis of Dr Gibbs' opinions does not of itself render his evidence inadmissible under s 79. Such lack of proof merely goes to the weight which may be given to the opinion: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [16] (Branson J) and at [87] (Weinberg and Dowsett JJ), Neowarra v Western Australia (No 1) (2006) FCR 208 at [16],[21]-[27] (Sundberg J), Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19] (Sackville J). This line of authority is consistent with the earlier High Court common law decision in Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 649.