By Catherine Logan, Partner
Cadbury Schweppes executives and their lawyers must have been licking their wounds last night – or perhaps doing some damage to a family block or two, as the High Court recently dismissed their application for special leave to appeal against a decision of the full Federal Court in July in which it clarified its earlier ruling in respect of the further hearing it has ordered in this matter.
The latest arm wrestle over the colour purple between these parties began when Cadbury lost their claim against Darrell-Lea last year in which they alleged Darrell-Lea’s use of the colour purple amounted to misleading and deceptive conduct under the consumer protection provisions of the Trade Practices Act 1974 (Cth).
The full Federal Court then found in May on appeal by Cadbury that the trial judge had wrongly excluded some evidence tendered by Cadbury at the trial and ordered the matter be remitted to the trial judge for further hearing.
Cadbury thought that:
- The full Federal Court should have ordered a new trial.
- The trial judge should excuse himself from hearing the matter further on the ground of apprehension of bias.
The full Federal Court in July disagreed with 1 above, and earlier this month Heerey, J disagreed with 2 and refused to recuse himself.
On 30 August, the High Court (Gleeson, CJ and Hayne, J) knocked back Cadbury’s application for special leave to appeal to it against the full Federal Court’s decision in July on the new trial issue, saying "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."
Ouch! The matter will come back before Heerey J for further hearing directions on the 3rd September.
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