Case: Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555
Outcome: discussed
In Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555 , Lockhart, Wilcox and Gummow JJ stated at 604 that: ...it is not very profitable - at least in this court to spend time in determining whether a particular survey is hearsay evidence. Even if it is, ordinarily the court will have a discretion under O 33, r 3 [a substantially equivalent provision to s 190(3)] to permit the evidence to be adduced. To call the persons who responded to the survey will almost always result in appreciable expense and delay. Given the existence of a discretion, it seems more sensible to concentrate attention upon the necessity for, and reliability of, the survey evidence, rather than to worry about its compliance with rules regarding hearsay evidence which were developed before this type of problem arose. 148 Their Honours went on in Arnotts 97 ALR 555 to point out that modern market survey techniques, if undertaken by experienced and professional people, are highly likely to be accurate. That approach is a sensible one, and allows a trial judge to assess for herself or himself whether the strict application of the hearsay rule would undermine common sense or justice. 149 However, in the present circumstances, the evidence of Mr Alford is effectively required, as opinion evidence, to validate the statistical approach. I do not consider that in the circumstances, where the issue of exposure of a television audience is and has always been a matter that is or could be expected to be in issue, proper opinion evidence should not be before the Court. It is not for Bickfords to cross-examine Mr Alford to test his approach or his basis of opinion Mr Alford needed to prepare this himself for the Court. 150 I do accept that Mr Alford was sufficiently expert and professional in the collection of the relevant ratings data. I am not saying that Mr Alford's sampling methods are necessarily flawed. However, the issue in this case of the number of viewers of the television shows is one which (along with other exposures) has been in contention since the beginning of the proceeding. Hansen has had ample opportunity to comply with the Evidence Act , and without this compliance, I cannot be satisfied as to the probative value of the opinion evidence in its current form. 151 The matter to which the evidence relates is genuinely in dispute, namely the specific number of people watching a particular television show or the reach or exposure of the particular television show. In view of the potential importance of the issue and of the evidence, I do not consider that there would be unnecessary expense or delay involved in requiring adherence to the Evidence Act . The central issue in this case is reputation, and exposure of the MONSTER ENERGY mark to young male adults and other potential customers in Australia. 152 When one looks at the matter from this point of view, and specifically in light of the nature of the opinion evidence that must necessarily be relied upon, and not just raw data, I do not consider I should receive such evidence in the exercise of my discretion under s 190(3). 153 In any event, as I have said, even accepting the reach of the television programs as contended for by Hansen, I do not consider that their impact has been such to give rise to the awareness necessary in the target market or any other potential customers in Australia. 154 Whilst then there is no specific evidence as to the exact extent of television exposures, I do accept that there must be some exposure to extreme sports followers within the target demographic and to potential customers in Australia, although this cannot be quantified. However, I would be prepared to infer that many people, particularly those with an interest in a particular sport, would view these television programs in Australia. 155 The summary of the television exposures is undertaken by reference to various events occurring outside Australia, although it is to be evaluated in light of my previous observations and views as to quality and impression. 156 I turn first to motocross and supercross events. Hansen gave evidence that it has sponsored motocross/supercross athletes since 2003. Some of these athletes competed in the AMA supercross championships, which consist of weekly races between January and May each year held at different locations around the US. Hansen set out each occurrence of broadcasting of these championships in Australia. In summary, the evidence included that ESPN broadcasted the event for between one and two hours on many days in January, February, March, April, May and December in 2004, 2005, and 2006.