Trade Practices Commission v Arnotts Ltd

Re: TRADE PRACTICES COMMISSION
And: ARNOTTS LIMITED; ARNOTT'S BISCUITS LIMITED; FLEDSPAC PTY LIMITED and
THE DICKENS CORPORATION PTY LIMITED
No. G1316 of 1988
FED No. 645
Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Evidence - reference of questions to court expert - whether purported findings constitute a "report" for the purposes of 0.34 r.2(1).

HEARING

SYDNEY

#DATE 26:10:1989

Counsel and Solicitors Mr. B.C. Oslington Q.C.,
for Applicant: Mr. D. Staelhi and

Mr. M.R.J. Ellicott instructed by the Australian Government Solicitor

Counsel and Solicitors for Mr. C.A. Sweeney Q.C. and
the first and second Mr. P. Comans instructed by
Respondents: Clayton Utz

ORDER

Rule that the document MFI "50" be admitted into evidence as exhibit 138.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On 14 September 1989, an order ("the order") was made, by consent, appointing Eden Brinkley as court expert for the purposes of 0.34 r.2 By r.2(1), where a question for an expert witness arises, the Court may -

"(a) appoint an expert as court expert to inquire into and report upon the question;

(b) authorize the court expert to inquire into and report upon any facts relevant to his inquiry and report on the question;

(c) direct the court expert to make a further or supplemental report or inquiry and report; and

(d) give such instructions as the Court thinks fit relating to any inquiry or report of the court expert."

1. Under the terms of the order, the question which Mr. Brinkley was to inquire into and report upon was stated in a letter to him written jointly by the solicitors for the Trade Practices Commission and by the solicitors for Arnotts relevantly as follows:
   

"As you may be aware, the parties to the litigation described above have agreed that a 'court expert' should be appointed, to report to the Federal Court about certain survey material prepared by the Roy Morgan Research Centre Pty. Limited ('Roy Morgan'). You have been nominated by the Australian Bureau of Statistics to undertake the above role and we understand you are willing to undertake that role but we would be grateful if you would confirm that this is the case. It has been agreed that the applicant and the first and second respondents in these proceedings shall be jointly liable for the reasonable costs of the Australians Bureau of Statistics in having you carry out the role of Court expert.

The relevant questions were included in one of Roy Morgan's omnibus surveys and about 1,200 people were interviewed. Roy Morgan carried out a statistical analysis of the results, using a computer, and Mrs. Michele Levine produced a report concerning the results of the survey.

We propose to forward to Roy Morgan for your use a copy of part of MFI 27 (being "ML1") and exhibits 118, 119, 120, 121, 122, 123, 124 and 126 which consist of a 'survey on…