FEDERAL COURT OF AUSTRALIA Unilever Australia Ltd v Revlon Australia Pty Ltd (No 5) [2014] FCA 1350 Citation: Unilever Australia Ltd v Revlon Australia Pty Ltd (No 5) [2014] FCA 1350 Parties: UNILEVER AUSTRALIA LIMITED ACN 004 050 828 v REVLON AUSTRALIA PTY LIMITED ACN 095 360 731 File number: NSD 508 of 2014 Judge: GLEESON J Date of judgment: 8 December 2014 Catchwords: EVIDENCE – objections to admissibility of affidavit – where tendered as expert opinion evidence – objections upheld Legislation: Evidence Act 1995 (Cth) s 79(1) Cases cited: Gambro Pty Limited v Fresenius Medicare Care Australia Pty Ltd [2007] FCA 1828 Date of hearing: 8 December 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 15 Counsel for the Applicant: Mr R Cobden SC with Mr N Furlan Solicitor for the Applicant: Baker & McKenzie Counsel for the Respondent: Mr M Hall SC with Dr B Kremer Solicitor for the Respondent: King + Wood Mallesons IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 508 of 2014 BETWEEN: UNILEVER AUSTRALIA LIMITED ACN 004 050 828 Applicant AND: REVLON AUSTRALIA PTY LIMITED ACN 095 360 731 Respondent JUDGE: GLEESON J DATE OF ORDER: 8 DECEMBER 2014 WHERE MADE: SYDNEY THE COURT RULES THAT: 1. Paragraphs [14] and [24] of Tracy Raso's affidavit sworn 12 September 2014 not be admitted into evidence. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 508 of 2014 BETWEEN: UNILEVER AUSTRALIA LIMITED ACN 004 050 828 Applicant AND: REVLON AUSTRALIA PTY LIMITED ACN 095 360 731 Respondent JUDGE: GLEESON J DATE: 8 DECEMBER 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is a ruling on the admissibility of paragraphs [14] and [24] of Ms Raso's seventh affidavit, which is the affidavit dated 12 September 2014. Those paragraphs are tendered by the respondent (Revlon) as expert opinion evidence. Ms Raso's qualifications and experience are set out in her second affidavit, dated 24 June 2014, at paragraphs [4]-[10]. Ms Raso's expertise 2 In brief, Ms Raso has a Bachelor of Commerce and Marketing from the University of New South Wales, conferred in 1983. She has approximately 25 years' experience in the marketing industry, and she is currently employed by Revlon in the role of Marketing Director for Australia and New Zealand. 3 Prior to working at Revlon Australia she held senior marketing positions in companies which included Colgate Palmolive Australia where she worked for ten years as marketing manager and category manager; Diageo Australia, where she worked for almost eight years; Kellogg's Australia; McDonald's Australia; and Campbell's Arnott's. At Revlon, she is responsible for the direction of marketing undertaken by Revlon's cosmetic products as well as its Mitchum antiperspirant deodorant brands. Those marketing activities include digital television and print advertising, public relations, brand and strategy management, consumer and customer insights, review of sales and market data, and delivery of local sales and profit objectives. 4 Ms Raso's CV is annexure TR-14. Over the past 25 years, Ms Raso has had experience in marketing and brand development for various fast-moving consumer goods, including goods that are sold in supermarkets. In her seventh affidavit, at paragraphs [5] through to [7], Ms Raso sets out her experience of extensive use of market research to identify consumer attitudes and motivations. She says that her experience is across all research methodologies and techniques, and she estimates that throughout her career she has been involved in more than 150 research and focus groups, each comprising usually eight to 10 consumers, observing approximately 2000 consumers in total in these group situations, observational studies and in-store research. 5 Section 79(1) of the Evidence Act 1995 (Cth) ("Act") provides that if a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. In Gambro Pty Limited v Fresenius Medicare Care Australia Pty Ltd [2007] FCA 1828 at [24], Allsop J, as he then was, said that: Evidence of the kind permitted in [Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157], and also dealt with with a degree of generosity in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397, indicates that evidence in which an expert, who has some specialised knowledge which equips him or her to say something about how consumers will behave, is not inadmissible in limine as not being capable of being the subject of expert evidence. 6 I am prepared to accept that Ms Raso has some specialised knowledge in marketing of fast-moving consumer goods, including personal care products, and that that specialised knowledge equips her to say something about how consumers will behave in appropriate circumstances. Paragraph [14] 7 Paragraph [14] of Ms Raso's seventh affidavit states: In my opinion, based on my 25 years' experience in marketing, advertising and consumer research, the Mitchum Three Toned Triangles are the design element on the packaging that most clearly stands out on shelf and the variant colours are likely to be recalled by consumers as colour cues to signify "their" chosen variant. I consider that this is the element that would be recalled by a consumer when picturing the Mitchum Clinical packaging. The Mitchum Three Toned Triangles are the primary identifying design element of the packaging. As noted above these considerations are based on my 25 years' experience in marketing, advertising and product packaging development for fast consumer goods. For example, when I worked at Campbell's Arnott's, I was responsible for marketing and packaging design end promotion for Tiny Teddies biscuits, the appeal of which arises from the depiction of the recognisably-shaped teddies on the packaging, as opposed to the brand name of the product. When I was working on this brand, Campbell's Arnott's performed consumer research, including research concerning the appeal of this product to children, which revealed that the focus of the decision to select the product off the shelves was the images of the teddies on the packaging; there was not immediate recourse to the brand name which young children might not be able to read. This recognition of the design element over the brand name was further reinforced when in the same roll I worked on the development of "Big TedZ". A further example from my experience where the design elements of the packaging dominate over the brand name is from when I worked on the Bundaberg Rum brand whilst I was at Diageo Australia; I recall that research that I observed in that role indicated to me that the "Bundy bear" and the yellow colouring was the distinctive element of the packaging for that product. 8 Unilever objects to the whole of paragraph [14] on the basis that it is inadmissible opinion or speculation. 9 In paragraph [14], Ms Raso sets out her opinion that the variant colours on the Mitchum packaging are likely to be recalled by consumers as colour cues to signify their chosen variant. In support of that opinion she sets out experience of consumer research while working at Campbell's Arnott's, which demonstrated in broad terms that packaging can dominate, or have a dominating function, over a brand name. In that particular instance, the product, Tiny Teddies, was directed to young children who might not be able to read. 10 Ms Raso then gives the example of Bundaberg Rum, as a case where design elements of packaging dominate over the brand name. The suggestion appears to be that the experience of packaging as a feature which dominates over the brand name provides a basis for her opinion about consumer recall of Mitchum Clinical packaging. 11 I have difficulty understanding how that opinion can be based on the identified experience, because any opinion as to a person's recall of a particular circumstance or a particular design would require consideration of the circumstances of exposure to the packaging prior to the recall. In this case, Ms Raso does not give any explanation of the assumptions that she would make about the extent or circumstances of prior exposure to the packaging beyond the implication that if the consumer has a chosen variant of a product, the consumer has used, if not purchased, the product on at least one occasion in the past. Without that explanation, I am not satisfied that the opinion expressed in paragraph [14] is wholly or substantially based on Ms Raso's specialised knowledge. Rather, the opinion appears to be in the nature of speculation. 12 In addition, even if the opinion were properly based on Ms Raso's specialised knowledge, it would be necessary to understand more about the circumstances in which the packaging came to dominate over the brand in relation to the Tiny Teddies product or the Bundaberg Rum product. As it stands, there is no explanation of how that research might be relevant to a conclusion about the recall of a consumer when picturing the Mitchum Clinical packaging. In those circumstances, there may be a further basis for excluding the evidence under s 135 of the Act, namely, that it would be unfairly prejudicial to Unilever to admit the evidence where there is no sensible basis for testing the relevance of the Campbell's Arnott's and Bundaberg Rum consumer research, or where doing so might result in an undue waste of time. Paragraph [24] 13 Paragraph [24] of Ms Raso's seventh affidavit states: Based on my experience in marketing and advertising, owing to the number of sales of Mitchum Clinical since January 2014 and to Revlon's advertising campaign which featured pack shots of the product, I consider that Australian consumers who had seen the Mitchum Clinical advertisements or seen the product on retail shelves would identify Mitchum Clinical as a brand of clinical anti-perspirant deodorant and are likely to have familiarity with the packaging. This is based on my prior experience where I am aware of pack shots in advertisements increasing the recognisability and consumer knowledge about the particular product advertised. For example, in my role as Marketing Manager in the Personal Care division of Colgate Palmolive, I was responsible for the launch of Softwash Antibacterial Handwash which within 18 months it became the number 1 selling SKU in the category. The advertising for Softwash Antibacterial Handwash featured pack shots showing the now recognisable amber coloured wash in a clear plastic bottle. Within a short period of time, this pack became very recognisable amongst consumers as distinctive of the antibacterial category of hand wash. Similarly, from my experience working for Campbell's Arnott's, I know that targeted advertising correlates to sales and recognition of the product advertised. For example, when I was at Campbell's Arnott's, I was involved in organising the advertising for Campbell's Real Stock throughout Australia's Masterchef television program. 14 Ms Raso expresses the opinion that Australian consumers who had seen Mitchum Clinical advertisements or seen the product on retail shelves would identify Mitchum Clinical as a brand of clinical antiperspirant deodorant and are likely to have familiarity with the package. The stated bases for that opinion are Ms Raso's experience in launching the Softwash Antibacterial Handwash product and her observation that immediately after Campbell's Real Stock was advertised on the Australian MasterChef television program, the sales of Campbell's Real Stock increased. 15 The paragraph does not disclose how that experience could bear upon the conclusion that Australian consumers who had seen Mitchum Clinical advertisements or seen the product on retail shelves would have familiarity with the packaging. In those circumstances, I am not satisfied that the opinion stated in paragraph [24] is wholly or substantially based on Ms Raso's specialised knowledge. Further, and similarly to the position in relation to paragraph [14], in the absence of information about the circumstances of the launch of the Softwash Antibacterial Handwash product and the Campbell's Real Stock advertising campaign, in my opinion, paragraph 24 ought to be rejected on the basis that its admission would be unfairly prejudicial to Unilever because an informed cross-examination on the basis of the opinion could not be undertaken. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. Associate: Dated: 7 January 2015