In the course of an unsuccessful appeal to the High Court, Ice SA sought to file further evidence providing details of the way in which ICE-WATCH watches were displayed and offered for sale in six retail stores in the Wellington area. Ronald Young J, while accepting that there was a significant public interest aspect to the opposition, refused leave on the basis that the survey evidence was not based on a sufficiently broad range of retail outlets to reliably be used as evidence.

On further appeal to the Court of Appeal, Ice SA sought to file two new affidavits relating to the manner in which ICE-WATCH watches had been displayed and offered for sale in New Zealand together with promotional use in the period February 2012 – May 2013. The appellant accepted that the evidence was not fresh.

Rule 45 of the Court of Appeal (Civil) Rules 2005 (“Court of Appeal Rules”) provides that “the Court may, on the application of a party, grant leave for the admission of further evidence, by … affidavit”. The Court of Appeal endorsed the following principles governing the admission of further evidence to the Court of Appeal:

(a)  Litigants have a duty to adduce at trial all their evidence, reasonably discoverable;

(b)  The constraints on the admission of further evidence are very strict. Evidence which is not fresh should only be admitted in exceptional and compelling circumstances, and will also need to pass the tests of credibility and cogency;

(c)  While a balancing of the interests of the applicant and opposing parties is required, the aim is to ensure that parties put their best case at trial and that the public resources of the Court system are not wasted.

Ice SA’s key contentions were:

(a)  Before the Commissioner, neither party had appreciated the necessity of filing the evidence in question;

(b)  The further evidence had to be admitted to recognise marketplace reality;

(c) Rule 45 of the Court of Appeal Rules does not specifically exclude such evidence;

(d)  Because of the public interest element in trade mark litigation, further evidence had been admitted on appeal in the past;

(e)  Ronald Young J had accepted that the issue of how watches might be sold at retail could be a matter of significance in the case; and

(f)  There was no prejudice to Swatch because it would be given time to respond to the evidence.

The Court of Appeal refused to admit the further evidence and stated:

“[18] We accept the submission of Mr Elliott QC for Swatch that it would be fundamentally wrong to grant Ice-Watch’s application and admit the further evidence. If we did, this Court could not, consistently, resist any other application to admit evidence which was not fresh and which therefore should have been adduced in the High Court, or even earlier in the Court or Tribunal at first instance. That would run directly against r 45 and the firmly established and soundly based principles that govern its application. Granting this application would risk turning this appeal into a first instance factual hearing before this Court. … Mr Elliott was justified in describing Ice-Watch’s application as a second attempt to ‘recast’ or ‘fix up’ its case.”