Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157

FEDERAL COURT OF AUSTRALIA

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157

APPEAL – nature of and approach to appeals in Federal Court - consideration of what constitutes ground of appeal - whether appropriate for parties to invite Court to re-hear matter ab initio - appeal is by way of re-hearing not trial de novo - task of appellate court is correction of error at first instance - need for parties to clearly demonstrate error - conclusions of trial judge given appropriate weight in determining whether error has been made EVIDENCE – whether evidence is excludable where trial judge has taken it into consideration when objection not taken at first instance - expert evidence - admissibility of expert evidence - distinction between admissibility and ultimate weight - role of expert evidence in Federal Court hearings - whether marketing is considered an area of expertise - whether expert can give evidence on matters of common experience - where party failed to cross-examine expert witness on evidence and subsequently raised objection to it on appeal TORT – passing off - characteristics of a valid cause of action - action designed to protect trader's goodwill - whether requirement for actual, subjective intention to mislead - only likelihood of confusion of prospective purchaser need be proven - totality of the conduct of alleged deceiver to be considered - whether get-up distinctive of respondent's product - whether appellant's get-up would lead potential purchasers to believe appellant's product was associated with the respondent - role of 'gestalt' in determining passing off - whether deliberate copying of rival's get-up - whether get-up designed to "sail as close as possible to the wind" - where identical shades of blue, silver and red and diagonal thrust are features of both products' get-up TORT – joint tortfeasor - whether managing director procured or directed tort by corporation - where managing director not a 'one man company' TRADE PRACTICES – misleading and deceptive conduct - designed to protect consumers- whether conduct was misleading or deceptive or likely to mislead or deceive - whether managing director knowingly concerned in misleading and deceptive conduct of corporation when closely, as distinct from, remotely associated with conduct - whether injunctive relief can be sought against managing director of infringing corporation