Goodman Fielder Pte Ltd v Conga Foods Pty Ltd

1. Leave to rely on paragraphs 23 to 34 of the affidavit of Brett Darren Allan affirmed on 20 November 2019, and annexures BDA-2 to BDA-9, be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BURLEY J: 1 In these proceedings the applicants allege that the respondents have infringed registered trade mark No. 1155473 for the words LA FAMIGLIA and registered trade mark No. 1689133 for the words LA FAMIGLIA KITCHEN, both registered in respect of goods identified within class 30 of the trade marks register. The respondents have brought a cross-claim for the cancellation of these and four other trade marks. 2 At the commencement of the hearing on 2 December 2019, the applicants sought leave to file the affidavit of Brett Darren Allan, affirmed on 20 November 2019. Mr Allan is the Head of Category-Retail of Goodman Fielder Consumer Foods Pty Ltd, which is a company within the Goodman Fielder Group. The applicants are companies within that group. 3 In paragraphs 18 - 22 of his affidavit, Mr Allan exhibits and reviews a presentation (identified as annexure BDA-1) made within Goodman Fielder in or around October 2018 that was prepared using data from a data portal called "Quantium Checkout" for an internal workshop within the marketing and sales teams which Goodman Fielder held as part of its ordinary business. In paragraphs 23 - 30, Mr Allan exhibits spreadsheets with "basket affinity data", extracted from the Quantium Checkout database, for sales of La Famiglia products at one of Australia's largest grocery retailers in 26 week periods between 11 February 2014 and 5 February 2019. Annexures BDA-2 to BDA-9 contain over 1,000 pages of spreadsheets. No evidence explains how Quantium Checkout data is compiled or by whom. 4 Objection is taken to the affidavit on the basis that the data relied upon is hearsay evidence, and that the exception to the hearsay rule provided in s 69(2) of the Evidence Act 1995 (Cth) does not apply, because the evidence was prepared for the purpose of the present proceedings: s 69(3) Evidence Act. The respondents also contend that if, contrary to their first submission, the affidavit material is able to be admitted under s 69(2), then leave to adduce the evidence should not be granted because the applicants have relied upon legal professional privilege to avoid production of the instructions provided to Quantium for the extraction of the data. Without the provision of the instructions the respondents contend that they will be prejudiced in their ability to test the evidence in cross examination. The respondents submit that in these circumstances, the Court should refuse to admit it pursuant to s 135 of the Evidence Act, because its probative value is substantially outweighed by the danger that the evidence would be unfairly prejudicial to the respondents. 5 The applicants submit first that the document annexed as BDA-1 was not prepared for the purposes of any litigation and that accordingly it should be received as falling within s 69(2) of the Evidence Act. Secondly, that s 48(1)(d) of the Evidence Act provides a route by which the materials may be admitted even if BDA-2 to BDA-9 were prepared for the purposes of the litigation. Thirdly, that the materials should be admitted in any event because the evidence is not being used by Mr Allan for a hearsay purpose. 6 There is no doubt that the documents exhibited as BDA-2 to BDA-9 are extracts from the larger Quantium CheckOut database that were filtered out from the database and prepared in separate form for the purposes of the present litigation. As much is made clear from the affidavit of Mr Allan and an affidavit affirmed by Mr Cameron Harvey, solicitor for the applicants, who gave evidence to this effect in support of a claim for legal professional privilege in respect of the instructions provided to individuals within Quantium who prepared the spreadsheets. The consequence is that those exhibits, and the paragraphs of the affidavit that rely upon them, do not qualify for admission as part of the business records exception to the hearsay rule: see s 69(3) of the Evidence Act. 7 The applicants seek to circumvent this difficulty by reliance on s 48(1)(d) of the Evidence Act, which provides: (1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods: ... (d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collage it - tendering a document that was or purports to have been produced by use of the device… 8 Section 47(1) provides that a "document in question": ...is a reference to a document as to the contents of which it is sought to adduce evidence. 9 Section 48 is of no assistance to the applicants. Section 48(1)(d) deals with the methods by which the contents of documents such as tapes and computer files may be adduced in court. Whether evidence so adduced will be admissible will be determined by the rules of admissibility in chapter 3 of the Evidence Act: see Kingham v Sutton (No 3) [2001] FCA 1117 at [127] (Goldberg J). Section 48 does not fall within that chapter. The extracts produced in exhibits BDA-2 to BDA-9 are documents that have been prepared for the purposes of the present litigation, each being an extract from the data contained in the Quantium CheckOut database. The "document in question" is the Quantium CheckOut data base, not the extract: see Mainline Corporate Holdings Ltd v Fexco Merchant Services [2014] FCA 265 at [7] (Yates J). The extracted data is a hearsay representation prepared for the purpose of the proceedings that does not stand outside the hearsay rule. 10 Accordingly, confidential annexures BDA-2 to BDA-9 may not be admitted. Paragraphs [23] - [34] of the affidavit, which rely upon the information contained in those annexures, are also inadmissible as the factual basis upon which the opinions are expressed has not been proved. 11 The position is different in relation to confidential annexure BDA-1. The evidence of Mr Allan is that this is a presentation that was prepared in the ordinary course of business for the purpose of an internal presentation in October 2018. He gives evidence that it was prepared for an internal workshop with members of the marketing and sales teams, which Goodman Fielder held as part of its ordinary business. On the basis of this evidence, it is apparent that the document is a business record. It is admissible pursuant to s 69(2) of the Evidence Act. In my view, the probative value of this evidence is not substantially outweighed by any unfairness to the respondents. Accordingly, I admit annexure BDA-1 and paragraphs 1 - 22 of the Allan affidavit. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.