FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 6) [2007] FCA 2075 PRACTICE AND PROCEDURE – remitter by Full Court for further hearing in order to receive applicant's expert evidence held to have been wrongly rejected – motion by applicant seeking leave to conduct further consumer survey, orders that certain evidence of an applicant's witness given at earlier hearing be not admitted, that an applicant's witness be recalled for further re-examination, that certain passages from the evidence of some respondent's witnesses be not admitted and that they be available for further cross-examination – motion heard on the papers Federal Court of Australia Act 1976 (Cth) s 23 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007)239 ALR 662 cited Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2007] FCAFC 102 cited Keith Hercules & Sons v Steedman (1987) 17 FCR 290 cited CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD VID 555 OF 2005 HEEREY J 21 december 2007 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 ORDER: 21 december 2007 WHERE MADE: MELBOURNE THE COURT ORDERS AND DIRECTS THAT: 1. The applicant notify the respondent in writing by 31 January 2008 of such form objections, if any, which it may have to the affidavit of John Hall sworn 13 January 2006; 2. The respondent file and serve by 18 February 2008 its submissions in support of any application pursuant to ss 135 and/or 136 of the Evidence Act 1995 (Cth) that the Court refuse to admit, or limit the use to be made of, the evidence of Professor Gibbs and Messrs Riches and Stavros; 3. The applicant file and serve by 3 March 2008 its submissions in response to any such submissions as are made under order 2; 4. The applicant, in consultation with the respondent, compile any additions to the Court Book and file two copies with the Court and serve one copy on the respondent by 7 March 2008; 5. The motion of the applicant by notice dated 7 December 2007 is otherwise dismissed; 6. The applicant pay the respondent's costs of the motion. 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: 21 december 2007 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The Full Court held that certain expert evidence tendered by the applicant had been wrongly excluded: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007)239 ALR 662. The Full Court refused the application of the applicant (Cadbury) for a new trial and remitted the matter to me as the trial judge for the purpose of receiving the wrongly rejected evidence and relevant opposing evidence on behalf of the respondent (Darrell Lea). The further hearing has been fixed to commence on 11 March 2008. 2 By notice of motion dated 7 December 2007 Cadbury seeks orders: (a) That Cadbury have leave to conduct a new survey in accordance with Practice Note 11 (motion pars 1-5 and 9); (b) That Cadbury by 15 February 2008 notify Darrell Lea of form objections (if any) to the affidavit of John Hall sworn 13 January 2006 (motion par 6); (c) That the parties file by specified dates submissions in relation to applications to be made under ss 135 and 136 of the Evidence Act 1995 (Cth) concerning the evidence of Professor Gibbs and Messrs Riches and Stavros (motion pars 7-8, 10 and 12); (d) The parties arrange for any additions to the Court Book (motion par 11); (e) That specified passages from the evidence of the Cadbury witness Mr Nowicki be not admitted (motion par 13); (f) That Cadbury witness Professor Roger Layton be recalled for further re-examination (motion par 14); (g) That specified passages from the cross-examination of certain Darrell Lea witnesses (Mr Lea, Ms McGlinchey, Ms Hurst, Ms Borjeson, Ms Akins and Ms Ettia) be not admitted and that they be available for further cross-examination (motion pars 15-21); 3 Because of the impending Christmas break, the urgency of the matter and the difficulty of arranging a mutually convenient hearing time for counsel and the Court, I directed that the motion be heard on the papers. The parties duly filed detailed written submissions, Cadbury's on 17 December and Darrell Lea's on 19 December. 4 Cadbury complains of the lack of an oral hearing and alleges there has been a breach of natural justice. However, I am satisfied I have the power to make the direction in question under s 23 of the Federal Court of Australia Act 1976 (Cth). That section confers a general power that may be invoked to facilitate the judicial process for various purposes, including ensuring the convenient, expeditious and fair conduct of legal proceedings: Keith Hercules & Sons v Steedman (1987) 17 FCR 290 at 300. It is an everyday practice in this Court for subsidiary matters, for example questions of costs, to be dealt with on the papers. It can be an efficient and cost-effective procedure without in any way impairing the parties' rights to make an appropriate presentation of their arguments to the Court. Cadbury's written submissions were detailed and covered twelve pages. Darrell Lea's were of eight pages. Having read them, I cannot think of any further questions I would have wished to ask in an oral hearing. I now turn to the orders sought. Survey 5 As the Full Court made clear in a second judgment when the matter was brought back on Cadbury's application (Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2007] FCAFC 102) there is not to be a new trial of this matter enabling Cadbury to call any evidence and ask any questions which it now thinks would be helpful. The Full Court said (emphasis added): [6] However, the Court did not consider that a new trial was justified. Rather, the Court was of the view that justice would be served by a further hearing before the primary judge, at which Cadbury would have another opportunity of adducing the disputed evidence. [7] The proceeding was remitted on the basis that it would be before the primary judge as though the case were part heard. Thus, it would be a matter for the primary judge to determine the extent to which, after entertaining all proper objections and making rulings on such objections, additional or further evidence should be admitted. That may have the consequence that Darrell Lea would seek to adduce its own evidence in response to the disputed evidence. [8] We indicated in our reasons (at [110]) that, if proper objections were taken to the disputed evidence at the further hearing and the evidence was rejected, it would be open to the primary judge to allow Cadbury to elicit further evidence to overcome the objections. That would be an aspect of the management of the further hearing by the primary judge in the same way as it would have been had his Honour not rejected the disputed evidence in its entirety. That is to say, it would be for counsel for Darrell Lea to make such objections to the admissibility of the disputed evidence on formal grounds as they may consider appropriate. If, in the exercise of his discretion, the primary judge were to permit Cadbury the opportunity of adducing further evidence to overcome any objections, that would be a matter entirely for his Honour at the further hearing. 6 The proposed calling of further evidence of a survey, to be conducted two years after the trial, would be inconsistent with that ruling of the Full Court. On appeal Cadbury sought a new trial. The Full Court rejected that application and removed any doubt on the second hearing. Subsequently the High Court refused Cadbury's application for special leave to appeal. Form objections to the Hall affidavit 7 Darrell Lea does not object to the course proposed but asks, reasonably in my opinion, that notice of any such objections be filed by 31 January 2008. Sections 135 and 136 orders 8 Darrell Lea consents to the timetable proposed by Cadbury. Additions to Court Book 9 Darrell Lea consents to the timetable proposed. Nowicki evidence 10 Cadbury submits that because the Full Court has now held (contrary to the way Cadbury conducted its case at trial) that an exclusive reputation in the use of the colour purple is not required, Mr Nowicki's evidence in cross-examination as to the use of purple by other traders is no longer relevant, and should be excluded. 11 Darrell Lea says that third party usage is highly relevant to the question whether there was a likelihood of deception. Whether this be so or not is plainly a matter to be considered at the further hearing. The relevance and weight to be accorded to such evidence, in the light of the Full Court's decision, is a matter for trial, not for pre-emptive strike on interlocutory application. Layton re-examination 12 Cadbury's submissions do not indicate what questions it would wish to ask Professor Layton in any further re-examination, still less why such re-examination be permitted two years after his cross-examination concluded. Darrell Lea witnesses 13 The proposed further cross-examination would go to the actual state of mind of the various Darrell Lea witnesses. Cadbury says by reason of the exclusion of its expert evidence it was denied the opportunity to put to the Darrell Lea witnesses that it was implausible that any experienced marketer proposing to undertake a marketing campaign in relation to chocolate confectionery could choose to use the colour purple without having regard to the notorious association between that colour and Cadbury. 14 Apart from anything else, such cross-examination would seem to be argumentative and unlikely to be of any utility. In any event, there was nothing to stop Cadbury putting such matters to the Darrell Lea witnesses at the trial. 15 The evidence already given should not be excluded; see the observations above in relation to Mr Nowicki. Orders 16 Orders and directions will be made in accordance with these reasons. Since Cadbury has failed on all contested issues there will be an order that it pay Darrell Lea's costs of the motion. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 21 December 2007 Counsel for the Applicant: M D Wyles and S Rebikoff Solicitors for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: C Golvan SC and S Ricketson Solicitors for the Respondent: Middletons Date of Last Submission 19 December 2007 Date of Judgment: 21 December 2007