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Federal Court of Australia - Full Court |
Last Updated: 29 July 2008
FEDERAL COURT OF AUSTRALIA
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd
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
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.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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CADBURY SCHWEPPES PTY LTD
Appellant |
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AND:
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DARRELL LEA CHOCOLATE SHOPS PTY LTD
Respondent |
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JUDGES:
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BLACK CJ, EMMETT AND MIDDLETON JJ
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DATE:
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2 NOVEMBER 2007
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PLACE:
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MELBOURNE
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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.
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IN THE FEDERAL COURT OF AUSTRALIA
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VICTORIA DISTRICT REGISTRY
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VID 732 OF 2007
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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CADBURY SCHWEPPES PTY LTD
Appellant |
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AND:
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DARRELL LEA CHOCOLATE SHOPS PTY LTD
Respondent |
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JUDGES:
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BLACK CJ, EMMETT AND MIDDLETON JJ
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DATE:
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2 NOVEMBER 2007
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PLACE:
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MELBOURNE
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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.
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I certify that the preceding one (1) numbered paragraph is a true copy of
the Reasons for Judgment herein of the Honourable Justice
Emmett.
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Associate:
Dated: 28 July 2008
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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CADBURY SCHWEPPES PTY LTD
Appellant |
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AND:
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DARRELL LEA CHOCOLATE SHOPS PTY LTD
Respondent |
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JUDGES:
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BLACK CJ, EMMETT AND MIDDLETON JJ
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DATE:
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2 NOVEMBER 2007
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PLACE:
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MELBOURNE
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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] HCA 55; (2006) 229 CLR 577, and more particularly the comments of Kirby and Crennan JJ at [117].
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I certify that the preceding one (1) numbered paragraph is a true copy of
the Reasons for Judgment herein of the Honourable Justice
Middleton.
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Associate:
Dated: 28 July 2008
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Solicitor for the Appellant:
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Mallesons Stephen Jaques
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Counsel for the Respondent:
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Mr C Golvan SC and Mr S Ricketson
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Solicitor for the Respondent:
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Middletons
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2007/210.html