Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd

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