Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] HCATrans 468 (30 August 2007)

Last Updated: 30 August 2007

[2007] HCATrans 468

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M67 of 2007

B e t w e e n -

CADBURY SCHWEPPES PTY LTD

Applicant

and

DARRELL LEA CHOCOLATE SHOPS PTY LTD

Respondent

Publication of reasons and pronouncement of orders

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 30 AUGUST 2007, AT 10.15 AM

Copyright in the High Court of Australia
HAYNE J: The appellant ("Cadbury") brought proceedings in the Federal Court of Australia alleging contravention of ss 52, 53(c) and 53(d) of the Trade Practices Act 1974 (Cth) and passing off by the respondent. The proceedings were dismissed. Cadbury's appeal to the Full Court of the Federal Court was allowed. The Full Court concluded that the trial judge had wrongly excluded some evidence tendered by Cadbury. It ordered that the matter be remitted to the trial judge for further hearing.

Cadbury applied to the Full Court to recall so much of its orders as remitted the matter to the trial judge for further hearing and submitted that there should be an order for a new trial. The Full Court dismissed this application. Cadbury now seeks special leave to appeal to this Court against so much of the orders of the Full Court as ordered that the matter be remitted to the trial judge for further hearing.

After making its application for special leave to appeal to this Court, and despite the orders of the Full Court, Cadbury applied to the trial judge for an order that the trial judge excuse himself from further hearing the matter on the ground of apprehended bias. The trial judge has refused that application.

Cadbury does not submit that the Full Court had no power to make the order it did. It submits that it should not have done so and that, in consequence, Cadbury has suffered or will suffer an injustice. We are not persuaded that it is in the interests of justice in this case that there be a grant of special leave to appeal. Nor are we persuaded that an appeal to this Court would enjoy sufficient prospects of success to warrant a grant of special leave.

Pursuant to r 41.11.1 of the High Court Rules 2004 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

I publish that disposition.

AT 10.17 AM THE MATTER WAS CONCLUDED