Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 5) [2007] FCA 1245

Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 5) [2007] FCA 1245

No reasonable apprehension of bias was established. The fair minded lay observer would know not only the judge's earlier remarks but also the Full Court's first and second judgments, including that the Full Court saw no reason why the matter should not be remitted to the same judge for further hearing. The earlier comments, read as a whole and in context, were directed principally to the judge's then view of the admissibility and utility of expert evidence in consumer cases and the policy rationale for that view, which was wrong because s 80(b) had been overlooked. A fair minded observer would expect the judge to administer the law as stated by the Full Court, and the practical difficulty...

Jurisdiction
Australia
Judgment Date
16 August 2007
Procedural Posture
Practice and Procedure Motion in Proceedings Alleging Passing Off and Contravention of S 52 of the Trade Practices Act 1974 (cth) / Applicant's Motion That the Trial Judge Excuse Himself From the Further Hearing on the Ground of Apprehended Bias After Remitter by the Full Court
Outcome
The applicant's motion was dismissed with costs.
Legal Topics
['apprehended Bias' 'recusal' 'expert Opinion Evidence' 'further Hearing After Appeal' 'evidence Act Discretion' 'misleading or Deceptive Conduct' 'use of Colour in Marketing Chocolate Products']
['practice and Procedure' 'evidence' 'trade Practices' 'passing Off'] ['apprehended Bias' 'recusal' 'expert Opinion Evidence' 'further Hearing After Appeal' 'evidence Act Discretion' 'misleading or Deceptive Conduct' 'use of Colour in Marketing Chocolate Products']

Case Brief

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Procedural Posture

Practice and Procedure Motion in Proceedings Alleging Passing Off and Contravention of S 52 of the Trade Practices Act 1974 (cth) / Applicant's Motion That the Trial Judge Excuse Himself From the Further Hearing on the Ground of Apprehended Bias After Remitter by the Full Court

Legal Issues

  1. 1 ['Whether a fair minded lay observer might reasonably apprehend that the trial judge might not bring an impartial and unprejudiced mind to the further hearing.' "Whether the trial judge's comments in the evidence ruling and trial judgment about expert marketing evidence and policy considerations gave rise to a reasonable apprehension of bias." "Whether the matter should continue before the trial judge as a further hearing following the Full Court's remitter."]

Ratio Decidendi

No reasonable apprehension of bias was established. The fair minded lay observer would know not only the judge's earlier remarks but also the Full Court's first and second judgments, including that the Full Court saw no reason why the matter should not be remitted to the same judge for further hearing. The earlier comments, read as a whole and in context, were directed principally to the judge's then view of the admissibility and utility of expert evidence in consumer cases and the policy rationale for that view, which was wrong because s 80(b) had been overlooked. A fair minded observer would expect the judge to administer the law as stated by the Full Court, and the practical difficulty...

Court Disposition

The applicant's motion was dismissed with costs.

Orders

  • ["The applicant's motion dated 9 August 2007 be dismissed." "The applicant pay the respondent's costs of the motion."]