Often the court relies on “trap” orders. What is a trap order? A trap order is imposed in order to gather evidence in litigation matters that revolve around claims based on misleading or deceptive conduct or passing off. However, in instances where one fails to give the respondent a notice about the trap dealing, the evidence might not be accepted by the court as was observed in the case of Nick Scali Limited v Super A-Mart Pty Limited [2010] FCA 1130. QUCIK FACTS A claim for passing off was initiated by Nick Scali against Super A-Mart. Nick Scali alleged that Super A-Mart breached sections 52 and 53 of the Trade Practices Act 1974 (Cth).

The court was faced with claims that related to comparative advertisements, pricing, punch lines and placards as well as oral accounts suggesting overlap and passing off of both parties’ goods. Scali wanted to present a ‘trap dealing’ as evidence before the court. However, before the commencement of the court proceedings, Scali had not notified Super A-Mart until two weeks after the initiation of these proceedings. COURT’S FINDINGS Pursuant to section 135(a) of the Evidence Act, Super A-Mart pleaded that the Court could not permit evidence of a trap dealing for which they had not received a notice thereof.

The court found reason in Scali’s argument and decided that it would be not be unfair and biased to Super A-Mart if the evidence as admitted by Scali were not allowed. However, the court warned that trap orders should always be carried out with “absolute fairness” and such trap orders must occur in such conditions that could provide the other party optimum opportunity to examine their present scenario. Lastly, the court held that if there is a failure to give a timely notice to the opposing party, then only the weight of the evidence produced is affected, not its admissibility. SUMMARY An evidence of trap dealing can be admissible in court only when they are direly required and the opposing party is notified of the same. If one does not heed to these basic principles, there is a probability that the evidence produced before the court may be dismissed. If at all such evidence is allowed, then its probative value may diminish.