Cadbury Schweppes P/L v Kenman Developments P/L

[1992] FCA 703

Re: CADBURY SCHWEPPES PTY LIMITED
And: KENMAN DEVELOPMENTS PTY LTD; HERAKLIS KENOS; NICHOLAS KENOS; SPIRO
MANDYLAS KENMAN GOODS PTY LTD and CADBURY SCHWEPPES PTY LTD
No. VG 270 of 1990
FED No. 703
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CATCHWORDS

Practice and Procedure - application for leave to adduce survey evidence - principles to be applied in granting leave - form of order.

Federal Court Rules, O. 33 r. 3

Greynell Investments Company v Hunter Douglas Ltd (1979) 4 TPR 173

HEARING

MELBOURNE

#DATE 1:9:1992

Mr J.I. Fagenbaum QC with Mr P.D. Santamaria (instructed by Arthur Robinson and Hedderwicks) appeared for the applicant.

Ms E. Strong (instructed by A. Tatlock and Associates) appeared for the respondents.

ORDER

THE COURT ORDERS THAT:

1. The intended survey to be conducted for or on behalf of the applicant in the form and manner described in the affidavit of Robert John Donovan herein sworn 10 July 1992 and exhibited "RJD7" thereto be admitted as evidence at the trial;

2. To the extent necessary to give effect to this order, compliance with the rules of evidence in relation to the said survey is dispensed with;

3. The results of the survey be filed and served no la February 1993;

4. The applicant, if requested by the respondents or any of them, shall provide access to all records constituting the said survey;

5. If required by the respondents the applicant will call as witnesses at the trial of the proceedings the persons involved in the conduct of the survey other than the persons interviewed;

6. The directions hearing be adjourned to 5 February 1993;

7. Each party's costs of this motion be costs reserved;

8. Each party have liberty to apply on 7 days' notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

By its notice of motion the applicant seeks an order that it be given leave to adduce survey evidence at trial.

1. In my view, it would be inappropriate to make an order in such general terms.

2. The power of the Court to authorise the giving of evidence which, under traditional rules, would not be admissible or would be extremely expensive and time-consuming, is found in Order 33 Rule 3 of the Federal Court Rules. I think it is appropriate that whenever that power is exercised, it ought to be exercised within defined limits.

3. It may be that in some cases a survey has already been conducted and a party comes to court seeking leave to adduce the result of that survey or the responses of the interviewees or some other information which normally would not be capable of being proved except by the calling of the individuals concerned and, in an appropriate case, leave may be given. However, in this case the applicant is yet to conduct the survey. It has, however, indicated the method whereby the survey is to be carried out. Not every last detail of the proposal is spelt out, but there is a substantial amount of detail from which it can be ascertained what is proposed to be done, how it is to be done, and by whom. There is evidence that the person who is to conduct the survey (one Donovan) is a person with substantial credentials in the field, and although some comment has been made that perhaps his expertise is in a slightly different field, on the affidavit evidence adduced it would seem that he is a person who is knowledgeable in the field of carrying out this type of survey, and in his own affidavit has expressed his opinion as to the principles that are applicable and the methodology which he believes is appropriate in the circumstances of the particular case.

4. There is therefore credible evidence that the survey proposed is one that can produce a meaningful result. This is not to say that another equally competent and qualified expert would necessarily agree, either that the methods are appropriate to the circumstances or that the conclusions sought to be drawn can validly be drawn from that material, but that is not the question before the Court at the moment. The question is whether what might in broad terms be called hearsay-type evidence in the form of the survey can be put in evidence without objection.

5. I am satisfied that it is appropriate, and indeed the respondent does not object in principle, that the applicant be permitted to lead survey evidence, and I think it is appropriate that the Court indicate that this permission is being given in the context of a detailed proposal that has been advanced in Donovan's affidavit of 10 July 1992. Accordingly, it seems to me that there should be an order that the applicant have leave to adduce survey evidence at trial. As a corollary to that, there should be an order that to the extent necessary to give effect to the order, compliance with the rules of evidence in relation to the survey be dispensed with.

6. I have no difficulty with the proposal that the results of the survey be filed and served. The date proposed, 1 February 1993, seems to me to be a long way off, but there is no evidence before me that would allow me to exercise any judgment to say that that is an inappropriate date. It is also appropriate that there be an order that the applicant, if requested by the respondents or any of them, provide access to all records constituting the survey.

7. The real contention between the parties has been the applicant's proposal that there be an order that the evidentiary value to be attached to the survey shall not be impugned at the trial on the basis of the methodology proposed for its conduct. I have considerable difficulty in defining the basis upon which the Court can impose upon a trial judge that type of restriction by way of interlocutory order. The applicant has put forward a proposal indicating that it wishes to undertake a particular survey; it seeks dispensation of the normal rules of evidence in relation to that proposal, and I think it is appropriate that the applicant ought to be permitted to put forward evidence in relation to that proposal, because it does seem that there is credible evidence that it may be of assistance to the Court. But I think that that is as far as it ought to go. I cannot read into the rule of Court which permits the Court to sanction the giving of this type of evidence, the further power to restrict the use that can be made of that evidence, or to give it a status which, upon proper testing, it may not have, and I would not accede to the order sought.

8. I think it inappropriate that at this stage any order should be made, as sought by the applicant, limiting the admission of further survey evidence, given that the rather leisurely time-frame in which this litigation is being conducted does not suggest that the case is anywhere near ready for trial. The order sought is one that may be appropriate at a time when the matter is closer to trial in order to avoid the undesirable prospect of a further similar application being made at the Court's door. At this stage I would not make the order sought but I accept that such an order may be made later on.

9. In addition to the orders sought, it is appropriate that I also order that such persons as are involved in the conduct of the survey, if required by the respondents, will be made available by the applicant as witnesses in the proceedings. It is unlikely that all of the persons who are involved in the survey will be going into evidence by affidavit and I think it is appropriate that as a condition of the admission of this type of evidence, if they are required, the people involved should be made available. Such an order was in fact made in Greynell Investments Company v Hunter Douglas Ltd (1979) 4 TPR 173 and I think that it should be made here. It is obvious that the order made by Lockhart J in Greynell, and what I contemplate, is intended to relate to the people who actually conduct the survey rather than the persons who are interviewed as it would, in my view, defeat the object of the order if the respondents could demand the attendance of all of the 800 persons interviewed. Nevertheless, if the circumstances arise that the respondents wish or need any person who can be identified to be called, some appropriate steps can be taken at a later stage. For the time being, the order I contemplate is that if required by the respondents, the applicant will call as witnesses at the trial of the proceeding the persons involved in the conduct of the survey other than the persons interviewed.

10. The directions hearing will be adjourned to 5 February 1993. The costs of the motion will be reserved.