Case: Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119
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". 14 The same conclusion is also reached by another route. In Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119 Dixon CJ, Kitto and Taylor JJ said "...it may be said at once that ordinary human nature, that of people at large, is not a subject of proof by evidence, whether supposedly expert or not." 15 As to this, senior counsel for Cadbury submitted: "We are certainly not intending to lead evidence of ordinary human nature but the field of expertise or the area of science which is described as behavioural science is certainly a field of expertise and not a matter of proving ordinary human nature." 16 But with respect, the whole raison d'&ecirc;tre of Dr Gibbs' evidence is to attempt to persuade the Court what ordinary human nature will lead people to do when making purchasing decisions about Darrell Lea chocolates, given the respective packaging, advertising etc of that firm and Cadbury. As the very name of Dr Gibbs' discipline conveys, he is concerned with the science of human behaviour. That is without doubt an area of specialized knowledge. But Transport Publishing says that ordinary human behaviour is not a matter to be proved in courts by opinion evidence, whether expert or otherwise. 17 In Transport Publishing (loc cit) their Honours go on to say that "particular descriptions of persons may conceivably form the subject of study and special knowledge". Examples given are persons who are "abnormal in mentality or abnormal in behaviour as a result of circumstances peculiar to their history or situation". Likewise, the manner in which people pursuing a special vocation would reason about a matter of business may be the subject of evidence. An example is that of persons skilled in marine insurance who can give evidence as to the materiality of a non-disclosure. Their Honours then say: "But before opinion evidence may be given upon the characteristics, responses or behaviour of any special category of persons, it must be shown they form a subject of special study or knowledge and only the opinions of one qualified by special training or experience may be received." 18 The second part of that passage of course is echoed in s 79. However, it is clear that this second condition of admissibility assumes that the first has been satisfied, that is to say that the evidence concerns a "special category of persons". 22 The present case is concerned with the brand names, colours and get-up of rival manufacturers of chocolate, and the likely effect of those features on retail purchasing decisions by consumers. Chocolate is an inexpensive, everyday product sold in hundreds of thousands of retail outlets throughout this country. Virtually the whole of the Australian population over the age of about eight years are purchasers or potential purchasers. In no way can consumers of chocolate be considered as a "special category of persons" within the meaning of the Transport Publishing rule. The questions thrown up by this case are quintessentially questions of fact within the experience and knowledge of a trier of fact.