Case: Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313
Outcome: cited
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". 2 Cadbury seeks to rely on an affidavit of Caroline Judy Shelton which exhibits the report of a chocolate sensory study conducted in November last year. Survey evidence has been admitted in this Court at least since Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313. 3 Broadly speaking, the study involved 102 participants who attended at the premises of Ms Shelton's organisation, National Field Services (NFS). The people were shown chocolates of undisclosed origin, in fact made by Cadbury, in different forms, such as block, Easter eggs, chocolate coated almonds etc, with different coloured wrappings. Different questions were asked of the participants in relation to their reactions, for example, did they recognise any particular brand of chocolate manufacturer. 4 It was said in opposition to the tender that it was hearsay. I think insofar as the responses that the participants gave to the persons conducting the study, they fall within section 72 of the Evidence Act 1995 (Cth) as being a representation made by such persons that were a contemporaneous representation about their feelings, sensations, knowledge or state of mind.