Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No. 4) [2013] NSWSC 1649

Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No. 4) [2013] NSWSC 1649

The second and third plaintiffs were not qualified by specialised knowledge to give opinion evidence about the truth or falsity of imputations concerning whether Babywedge was potentially dangerous, linked to deaths, or capable of causing suffocation. Their entitlement to nail the lie in defamation proceedings permitted them to assert their belief in falsity and to give evidence relevant to damages and vindication, but it did not displace the opinion rule in s 76 or satisfy the expert evidence exception in s 79 of the Evidence Act 1995. The evidence was therefore inadmissible to prove falsity, but admissible for the limited purpose of proving their belief in falsity and hurt to feelings.

Jurisdiction
Australia
Judgment Date
21 October 2013
Procedural Posture
Defamation and Injurious Falsehood Claim / Interlocutory Application Concerning Admissibility of Evidence
Outcome
Evidence of the second and third plaintiffs as to the falsity of imputations (b), (c) and (d) was ruled inadmissible to prove the falsity of the imputations but admissible to prove their belief in falsity.
Legal Topics
['nailing the Lie' 'opinion Evidence' 'expert Opinion Evidence' 'lay Opinion Evidence' 'falsity of Imputations' 'damages' 'justification']
['defamation' 'evidence'] ['nailing the Lie' 'opinion Evidence' 'expert Opinion Evidence' 'lay Opinion Evidence' 'falsity of Imputations' 'damages' 'justification']

Case Brief

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Procedural Posture

Defamation and Injurious Falsehood Claim / Interlocutory Application Concerning Admissibility of Evidence

Legal Issues

  1. 1 ['Whether the second and third plaintiffs could give evidence as to the falsity of imputations (b), (c) and (d).' "Whether unqualified plaintiffs' evidence of falsity of matters of expert opinion was admissible to prove falsity or only admissible as evidence of their belief and hurt to feelings." "Whether the plaintiff's entitlement in defamation proceedings to nail the lie overrides or qualifies the opinion rule in s 76 and the expert opinion requirements in s 79 of the Evidence Act 1995."]

Ratio Decidendi

The second and third plaintiffs were not qualified by specialised knowledge to give opinion evidence about the truth or falsity of imputations concerning whether Babywedge was potentially dangerous, linked to deaths, or capable of causing suffocation. Their entitlement to nail the lie in defamation proceedings permitted them to assert their belief in falsity and to give evidence relevant to damages and vindication, but it did not displace the opinion rule in s 76 or satisfy the expert evidence exception in s 79 of the Evidence Act 1995. The evidence was therefore inadmissible to prove falsity, but admissible for the limited purpose of proving their belief in falsity and hurt to feelings.

Court Disposition

Evidence of the second and third plaintiffs as to the falsity of imputations (b), (c) and (d) was ruled inadmissible to prove the falsity of the imputations but admissible to prove their belief in falsity.

Orders

  • ["Rule that the evidence of the second and third plaintiffs as to the falsity of imputations (b), (c) and (d) is inadmissible to prove the falsity of the imputations but is admissible to prove the second and third plaintiffs' belief of its falsity." "The evidence was allowed to be given but its use was limited to...