It is commonplace in litigation involving claims of misleading
or deceptive conduct or passing off to rely on evidence obtained by
way of "trap" orders or dealings. The recent decision in
Nick Scali Limited v Super A-Mart Pty Limited  FCA
1130 highlights that the weight given to such evidence could be
diminished where the applicant fails to give timely notice of the
trap dealing to the respondent.
Nick Scali commenced proceedings against Super A-Mart for breach
of sections 52 and 53 of the Trade Practices Act 1974
(Cth) and passing-off.
The claims related to:
a comparative advertisement run on television that carried the
strapline "Compare the Product, Compare the Price" and
referred to the price of a lounge suite sold by each of the
placards placed on Super A-Mart's furniture comparing the
price of its lounge suite to Nick Scali's lounge suite;
oral representations allegedly made by a number of Super
A-Mart's sales representatives to the effect that a particular
lounge suite sold by Super A-Mart was the same as a lounge suite
sold by Nick Scali.
All but one of the trap dealings that Nick Scali sought to rely
upon occurred before the proceedings. Yet Nick Scali did not give
Super A-Mart notice of the dealings until about two weeks after the
proceedings were commenced, when it served its evidence.
Super A-Mart submitted that the Court should exercise its
discretion under section 135(a) of the Evidence Act and
not admit evidence of a particular trap dealings, which Nick Scali
sought to adduce by way of affidavit evidence, as the probative
value of the evidence was substantially outweighed by the danger
that it might be unfairly prejudicial to Super A-Mart.
Super A-Mart asserted that it would suffer prejudice as the
passage of time meant that it was deprived of the opportunity of
properly investigating the dealings. In particular, the relevant
sales representatives no longer had a full recollection of the
alleged conversations relied upon.
Justice Yates held that the evidence in question was admissible,
as he was not persuaded that the probative value of the evidence
was substantially outweighed by the danger that the evidence might
be unfairly prejudicial to Super A-Mart.
However, he emphasised that "trap orders must be carried
out with absolute fairness" and warned "I wish to make it
clear, however, that I do regard the matters raised by [Super
A-Mart] as being relevant to my overall assessment of the events
In examining the authorities on trap orders, Justice Yates
the circumstances in which the trap order is made may be
in order to persuade the Court that the evidence of the trap
orders provides a satisfactory basis from which findings of fact
can be made, it may be necessary to afford the opposing party the
opportunity to undertake timely investigation of the relevant
however, the failure to give timely notice, should it reflect
unfairness, goes to weight only, not to admissibility of
The trial concluded on 10 November 2010 and judgment is yet to
be received by the parties.
Clayton Utz acted for Super A-Mart in these
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