Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364
Outcome: cited
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". 32 In any event, I would if necessary exercise the discretion under s 136 to limit the use of the documents to evidence of the fact that they were relied on by Cadbury. The documents in question can be contrasted with the evidence of another Cadbury witness, Ms Caroline Shelton, who conducted a survey of persons' reactions to various colours associated with chocolate. Her evidence was admitted over Darrrell Lea's objection: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364. Ms Shelton was cross-examined, as was Professor Layton who had designed the methodology. The strengths and weaknesses of the survey were explored in evidence and can form the basis of rational submissions by the parties. By contrast, with the documents in question there is no witness equivalent to Ms Shelton or Professor Layton. They are of much less probative value, the absence of the authors is prejudicial to Darrell Lea and their admission for all purposes would add length and confusion to the trial; see Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 378, 382.