Pete Black and Jeremy Gans both commented on the, uh, unusual headnote in Granada Tavern v Smith [2008] FCA 646:
EVIDENCE — proper application of Briginshaw principle — isn’t there something in the Evidence Act about this?
As Associate Professor Gans notes, on closer examination (in particular, of paragraphs [95]–[96] of his reasons for judgment) this is not the obvious error it appears to be. Instead, I think it is a manifestation of Justice Heerey’s sense of whimsy.
By way of background, Heerey J was the primary judge in the Cadbury/Darrell Lea colour purple section 52 case.
At the trial, he rejected the admissibility of certain expert evidence: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719; (2006) ATPR ¶42-112; [2006] FCA 363. In the event, he dismissed Cadbury’s claim: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136; 69 IPR 23; [2006] FCA 446. He also awarded some indemnity costs: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 5) (2006) 69 IPR 273; [2006] FCA 850.
The Full Court allowed an appeal, for the main reason that Heerey J wrongly refused to admit that evidence: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397; [2007] FCAFC 70. The Full Court ordered that the matter be returned to Heerey J to hear the additional evidence and make a new decision.
In his second decision (delivered on 11 April 2008, about a month before Granada Tavern), Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 8) [2008] FCA 470 at [46]–[47], Heerey J described the situation in the following way (citations and internal quotation marks omitted):
The evidence of the Cadbury experts had been excluded on the ground that an expert’s opinion is not admissible as to matters within the experience and knowledge of a judge or jury and specifically in relation to ordinary human nature, that of people at large such as purchasers of everyday consumer items.
While that is probably correct as a matter of common law, embarrassingly for myself and counsel (not including Mr Hutley SC and Mr Rebikoff, who did not appear at the earlier trial) nobody adverted to s 80 of the Evidence Act 1995 (Cth) which provides that opinion evidence is not inadmissible only because it is about a fact in issue or an ultimate issue or a matter of common knowledge.
Seen in this context, I think Heerey J’s headnote is a whimsical way to refer to the point, made in Granada Tavern at [96], that parties (or, more specifically, their counsel) should not focus on the common law principles (such as those in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34), but instead look first to the Evidence Act.
Of course, if the headnote gets mysteriously changed without explanation, it will be clear that I am smoking crack and looking too far into this.
