Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 210

FEDERAL COURT OF AUSTRALIA

Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 210

CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD

VID 732 of 2007

BLACK CJ, EMMETT AND MIDDLETON JJ

2 NOVEMBER 2007

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 732 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: CADBURY SCHWEPPES PTY LTD

Appellant

AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD

Respondent

JUDGES: BLACK CJ, EMMETT AND MIDDLETON JJ DATE OF ORDER: 2 NOVEMBER 2007

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. Leave to appeal be revoked. 2. The parties consult with the District Registrar within 14 days to discuss the prospects of mediation. 3. Costs of the application for leave to appeal and of today's hearing be costs in the cause. 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 732 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: CADBURY SCHWEPPES PTY LTD

Appellant

AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD

Respondent

JUDGES: BLACK CJ, EMMETT AND MIDDLETON JJ

DATE: 2 NOVEMBER 2007

PLACE: MELBOURNE

REASONS FOR JUDGMENT

BLACK CJ 1 The Court considers that leave to appeal should be revoked and that this matter should proceed to trial as quickly as possible. We understand that that can indeed occur and the trial could be completed this year. 2 The reasons essentially are these. If the appeal, as to the merits of which we of course express no opinion at all, were to be argued and were to succeed there is a certainty that the substantial time already spent would be wasted. If, on the other hand, the matter were to proceed to trial the point now in issue may not arise. We do not know. But balancing the two – between the certainty of loss on one hand and the possibility that the matter may not arise on the other – the best course is that the matter proceed to trial. 3 The point has been made. It is either good or bad. When the matter is concluded if it becomes necessary for the point to become the subject of appeal it will no doubt do so. 4 We are strengthened in this conclusion by the acceptance by counsel for the respondent of the risk that would be run by the matter proceeding to trial now rather than the appeal being determined. 5 It is for those reasons that I would revoke leave and direct that arrangements be made for early resumption of the trial. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.

Associate: Dated: 28 July 2008

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 732 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: CADBURY SCHWEPPES PTY LTD

Appellant

AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD

Respondent

JUDGES: BLACK CJ, EMMETT AND MIDDLETON JJ

DATE: 2 NOVEMBER 2007

PLACE: MELBOURNE

REASONS FOR JUDGMENT

EMMETT J 6 I agree that the balancing exercise is between throwing away the costs of the trial to date, which would be a certainty if the appeal proceeds and is upheld, as against the possibility of throwing away the lesser costs of the further trial, which would need to be undertaken if the appeal were dismissed. For those reasons, on balance I agree that leave should be revoked. However, I make it clear that this is without in any way expressing any view as to the merits of the appeal point that has been taken and which would still be open to the appellant in the event that it is unsuccessful after the further hearing. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 28 July 2008

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 732 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: CADBURY SCHWEPPES PTY LTD

Appellant

AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD

Respondent

JUDGES: BLACK CJ, EMMETT AND MIDDLETON JJ

DATE: 2 NOVEMBER 2007

PLACE: MELBOURNE

REASONS FOR JUDGMENT

MIDDLETON J 7 I also agree with the proposed orders and the reasons given by the Chief Justice and Emmett J. In addition, I add that I see nothing contrary in taking this approach to the principles enunciated in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, and more particularly the comments of Kirby and Crennan JJ at [117]. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate: Dated: 28 July 2008 Counsel for the Appellant: Mr N Hutley SC, Mr M Wyles and Mr S Rebikoff

Solicitor for the Appellant: Mallesons Stephen Jaques

Counsel for the Respondent: Mr C Golvan SC and Mr S Ricketson

Solicitor for the Respondent: Middletons

Date of Hearing: 2 November 2007

Date of Judgment: 2 November 2007