Gillette Australia Pty Ltd v Energizer Australia Pty Ltd [2002] FCAFC 247

FEDERAL COURT OF AUSTRALIA Gillette Australia Pty Ltd v Energizer Australia Pty Ltd [2002] FCAFC 247

GILLETTE AUSTRALIA PTY LIMITED v ENERGIZER AUSTRALIA PTY LIMITED N 140 OF 2002 HEEREY, LINDGREN AND MERKEL JJ 19 AUGUST 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 140 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: GILLETTE AUSTRALIA PTY LIMITED

(ACN 000 011 914)

APPELLANT

AND: ENERGIZER AUSTRALIA PTY LIMITED

(ACN 003 539 026)

RESPONDENT JUDGES: HEEREY, LINDGREN AND MERKEL JJ

DATE OF ORDER: 19 AUGUST 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

The following paragraph 3 be substituted for paragraph 3 of the orders made by the Full Court on 26 July 2002:

"3. The respondent pay the appellant's costs of the appeal, including reserved costs, save for any costs of the appeal that directly and exclusively relate to versions of the advertisement referred to in the amended statement of claim other than the final modified form proposed by the appellant as set out in the Schedule, which excluded costs are to be paid by the appellant to the respondent." Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 140 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: GILLETTE AUSTRALIA PTY LIMITED

(ACN 000 011 914)

APPELLANT

AND: ENERGIZER AUSTRALIA PTY LIMITED

(ACN 003 539 026)

RESPONDENT

JUDGES: HEEREY, LINDGREN AND MERKEL JJ

DATE: 19 AUGUST 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT 1 On 26 July 2002 the Full Court handed down reasons for judgment in this matter. In [83] of the reasons of Merkel J (with which Heerey J and Lindgren J agreed) his Honour stated: "As I am not satisfied that the affidavits could have had no bearing on the outcome it must follow that in the normal course the orders of the primary judge, made in part in reliance on those affidavits, should be set aside. However, in the course of the hearing before the Full Court Duracell abandoned its appeal in so far as it related to the original advertisement and the earlier modified versions of it. It is not altogether clear whether the abandonment related only to the Trade Practices Act 1974 (Cth) ('the TPA') grounds of appeal concerning those advertisements or whether it also included the natural justice grounds of appeal. In these circumstances it is appropriate for the parties to file written submissions as to the orders (if any) that are appropriate in relation to the earlier advertisements. Whatever might be the situation in relation to those advertisements, Duracell is entitled to an order setting aside the primary judge's order in so far as it prohibits the broadcasting of the most recent modified advertisement ('the modified advertisement')." 2 The orders made by the Full Court were as follows: "1. The appeal is allowed. 2. The order of the primary judge made on 24 December 2001, insofar as it enjoined publication of the advertisement referred to in the amended statement of claim in the final modified form proposed by the appellant as set out in the Schedule, be set aside. 3. The respondent pay the appellant's costs of the appeal, including reserved costs. 4. The parties within 14 days file and serve written submissions as to the further disposition of the appeal." 3 Order 4 related to further submissions concerning the consequences of Duracell's abandonment of its appeal in so far as it related to the original advertisement and the earlier modified versions of it. The parties have now filed further submissions in relation to that issue. 4 After considering those submissions, we are satisfied that, in the course of the hearing of the appeal, Duracell completely abandoned its appeal against the orders made by the primary Judge in relation to the original advertisement and earlier modified versions of it. As the abandonment was for all purposes, Energizer is entitled to its costs of the appeal in so far as they directly relate to the original advertisement and the earlier modified versions of it, not being costs relating to the final modified version of it (set out in the Schedule to our orders). It is therefore appropriate to vary Order 3 of the Full Court to give effect to that conclusion. 5 Duracell also made submissions seeking a modification of the advertisement set out in the Schedule to the orders made by the Full Court by the elimination of the word "cheaper". As Lindgren J noted at [40] of his reasons, although that word did not appear in the final modified version on the videotape, it was "added before his Honour" and the parties treated it as included. So did the members of this Court. The submission raises an entirely new matter and plainly does not relate to the issue raised by [83] of the reasons of Merkel J. Accordingly, we are not persuaded that the Court should entertain the submission. In any event, the advertisement set out in the Schedule was in the form proffered by Duracell before his Honour and addressed by the Full Court and we see no reason why Duracell should be permitted to alter its position in relation to it at this stage. 6 A further submission was made by Duracell that, other than in relation to costs, the further hearing in this matter should not be before the primary Judge. That submission, which also does not relate to the issue raised by [83] of the reasons of Merkel J, was made notwithstanding that the hearing and orders to date by the primary Judge have not involved any findings in relation to the credit of any witness and it is far from clear what issues will be required to be resolved at any further hearing: cf Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 177 ALR 460 at 472. Further, the future disposition of the proceeding by the primary Judge may be on the basis of evidence yet to be adduced. In these circumstances it is our view that no reason is shown for the making by this Court of the further order sought and that any submissions on the issue of disqualification should be made to the primary Judge, rather than to the Full Court. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.