Smiths Snackfood v Arnotts Biscuits [2001] FCA 155

FEDERAL COURT OF AUSTRALIA

Smith's Snackfood v Arnott's Biscuits [2001] FCA 155

THE SMITH'S SNACKFOOD COMPANY LTD v ARNOTT'S BISCUITS LIMITED N 200 OF 2000 JUDGE: WHITLAM J DATE: 28 FEBRUARY 2001 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 200 OF 2000

BETWEEN: THE SMITH'S SNACKFOOD

COMPANY LTD

APPLICANT

AND: ARNOTT'S BISCUITS LIMITED

RESPONDENT

JUDGE: WHITLAM J

DATE OF ORDER: 28 FEBRUARY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Paragraphs 13 and 14 of the defence be struck out. 2. The respondent pay the applicant the costs of its motion, notice of which was filed on 2 August 2000. 3. The respondent's motion, notice of which was filed on 3 August 2000, be refused. 4. Each party's cost of the respondent's motion be part of its costs of the cause. 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 200 OF 2000

BETWEEN: THE SMITH'S SNACKFOOD

COMPANY LTD

APPLICANT

AND: ARNOTT'S BISCUITS LIMITED

RESPONDENT

JUDGE: WHITLAM J

DATE: 28 FEBRUARY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 There are two motions before the Court, one of the applicant ("Smith's") and one of the respondent ("Arnott's"). Smith's seeks an order striking out part of Arnott's defence to its claims. Arnott's seeks orders that two American lawyers be given access to confidential documents produced by Smith's in this proceeding.

Motion to strike out part of defence 2 The proceeding itself is in some ways a sequel to the long-running litigation, which commenced with the judgment in The Kettle Chip Company Pty Ltd v Apand Pty Ltd (1993) 46 FCR 152. In that case Burchett J described (at 156 - 157) the method by which potato chips were manufactured by The Kettle Chip Company. He said the process involved the chips being "stirred by hand by cooks". 3 Smith's claims that Arnott's has contravened ss 52 and 53 of the Trade Practices Act 1974 (Cth) ("the Act"). Relevantly, Smith's alleges in its statement of claim: "3. The Respondent and its predecessors in title have manufactured and offered for sale in Australia potato chips under the name and trade mark KETTLE (the KETTLE Chips). Misrepresentations 4. The Respondent and its predecessors in title have represented to members of the public that the KETTLE Chips are 'hand-cooked', hand peeled and/or hand sliced. PARTICULARS The packaging and advertising material used by the Respondent contains statements that the KETTLE Chips are hand cooked. Further, the Respondent used the statement 'Hand cooked potato chips' in relation to the KETTLE Chips both in packaging and advertising. 5. The representation pleaded in paragraph 4 above are made in trade or commerce. 6. The representations are false. PARTICULARS (a) The potatos [sic] from which the KETTLE Chips are made are neither hand peeled nor hand sliced. (b) The KETTLE Chips are cooked in the following process: