Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd
[2008] FCA 1172
•5 August 2008
FEDERAL COURT OF AUSTRALIA
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2008] FCA 1172
CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD
VID 284 of 2008
BLACK CJ
5 AUGUST 2008
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 284 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: CADBURY SCHWEPPES PTY LTD
AppellantAND: DARRELL LEA CHOCOLATE SHOPS PTY LTD
Respondent
JUDGE:
BLACK CJ
DATE OF ORDER:
5 AUGUST 2008
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Grounds 1 and 2 of the Notice of Appeal (Part 1 of the appeal) be listed for hearing in the sittings of the Full Court in Melbourne in the week commencing 10 November 2008 or as soon thereafter as is practicable.
2.The Appeals Registrar list the hearing of Part 1 of the appeal for an estimated duration of half a day.
3.Subject to such further or other orders as the Full Court hearing Part 1 of the appeal may make, Grounds 3 to 17 of the Notice of Appeal (Part 2 of the appeal) be listed for hearing in the sittings of the Full Court in Melbourne in the week commencing 2 March 2009 or as soon thereafter as is practicable.
4.The Appeals Registrar list the hearing of Part 2 of the appeal for an estimated duration of three days.
5.For each Part of the appeal the appellant file and serve 5 copies of its outline of submissions, as described in Practice Note 1, not later than 4.00 pm five clear working days before the date fixed for the hearing of that Part.
6.For each Part of the appeal the respondent file and serve 5 copies of its outline of submissions, as described in Practice Note 1, not later than 4.00 pm two clear working days before the date fixed for the hearing of that Part.
7.The appellant file and serve 5 copies of any outline of submissions in reply, as described in Practice Note 1, not later than 4.00 pm on the last working day before the date fixed for the hearing of the Part of the appeal to which the submissions relate.
8.Outlines of submissions not exceed 10 pages in length.
9.Each party file and serve a list of authorities and legislation in accordance with the requirements of Practice Note 19.
10.Costs be reserved.
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 284 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: CADBURY SCHWEPPES PTY LTD
AppellantAND: DARRELL LEA CHOCOLATE SHOPS PTY LTD
Respondent
JUDGE:
BLACK CJ
DATE:
5 AUGUST 2008
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
BLACK CJ
It is unusual for the Court to give considered reasons for directions it makes for the listing and hearing of an appeal, but the present appeal presents some distinctive features to which counsel for the appellant has properly drawn my attention. Counsel has raised an issue that bears upon the likely duration of the appeal and, most importantly, its efficient disposition. I think it desirable that the parties, and the Full Court that will be constituted to hear this appeal, should have my reasons for the directions that I am about to give.
The appellant (“Cadbury”) appeals from a judgment of a judge of the Court dismissing an action for an injunction and damages for passing off and misleading or deceptive conduct: see Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 8) (2008) 75 IPR 557.
The issue, raised by counsel for Cadbury on the call-over of this appeal, is whether the hearing should be split into two separate hearings – the first to hear and determine Grounds 1 and 2 of the Notice of Appeal. These grounds (which can conveniently be described as constituting “Part 1” of the appeal) are, in substance, that there was a reasonable apprehension of bias on the part of the learned trial judge who was in error in not disqualifying himself.
The matters that are now the subject of Part 1 of this appeal were first raised by way of motion to the primary judge on 2 August 2007. This motion was dismissed: see Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 5) (2007) 240 ALR 780. Leave to appeal against the dismissal of the motion was granted on 28 August 2007 but was subsequently revoked by a Full Court (of which I was a member) on 2 November 2007: see Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 210.
In the Full Court’s reasons for judgment on the revocation of leave to appeal, the judges indicated that, whilst leave was to be revoked, if the issue of apprehended bias were still alive at the conclusion of the further hearing of the trial, that issue could then be re-agitated. The Notice of Appeal shows that the issue is indeed still alive and the question to be considered now is whether the hearing of the appeal should proceed on the footing that the apprehended bias grounds are dealt with separately and first.
I do not understand the decision of the High Court of Australia in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) CLR 577 at [117] to require an intermediate appellate court, before which there is an allegation of apprehended bias, to proceed to hear and determine that allegation in a hearing that is anterior to and separate from a hearing of any other grounds of appeal. Whilst it is clear that an issue of bias must be dealt with first, that is not to say that the hearing of an appeal should necessarily be split. Generally, it is undesirable for the hearing of an appeal to proceed in two distinct parts.
In the present case, however, I am satisfied that there is good reason to direct that Part 1 of the appeal be heard and determined first, and separately.
For one thing, if the grounds that make up Part 1 of the appeal are made out, the whole appeal must be disposed of on that footing.
Secondly, Grounds 3 to 17 (which I will call “Part 2”) relate almost exclusively to the way in which the trial was conducted. If, therefore, the grounds in Part 1 are made out, the grounds comprising Part 2, being specific to the way in which the particular trial was conducted, will have no further relevance. They will not be relevant to any re-trial. If a new trial were ordered it would be before a different judge and would have its own distinct dynamic.
The circumstance to which I have just referred might not, alone, justify the splitting of the hearing of an appeal which, as I have said, is generally undesirable.
The distinctive feature of the present matter, however, is that it is agreed by the parties – correctly as it seems to me – that the hearing of Part 1 of the appeal would be of very short duration; the hearing would occupy no more than half a day. The hearing of Part 2 of the appeal is, however, likely to be lengthy with the estimates of the parties varying between three days on the part of the respondent and some five days on the part of the appellant. There seems to be no doubt that Part 2 of the appeal would indeed take a considerable time to hear. If it does become necessary to hear and determine Part 2, a substantial amount of Court time would be occupied and substantial expense would be incurred by the parties. This of course would be wasted if the grounds comprising Part 1 of the appeal were made out and the matter determined on that basis.
In these circumstances, I consider that the best course to adopt is to make directions as to the further listing of Part 1 of the appeal for a separate hearing. I will order that Part 1 of the appeal be listed for hearing in the November sittings of the Full Court in Melbourne. If Cadbury is unsuccessful in Part 1, then Part 2 will be listed for hearing in the February sittings of the Full Court in Melbourne, subject to any orders that the Full Court hearing Part 1 of the appeal may be persuaded that it is appropriate to make.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black. Associate:
Dated: 11 August 2008
Counsel for the Appellant: Mr D Wyles, Mr S Rebikoff Solicitor for the Appellant: Mallesons Stephen Jaques Counsel for the Respondent: Dr S Ricketson Solicitor for the Respondent: Middletons
Date of Hearing: 29 July 2008 Date of Judgment: 5 August 2008
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