Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No 2) [2014] NSWCA 406

Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No 2) [2014] NSWCA 406

The motion was dismissed because the principal judgment had identified and dealt with the appellants' s 79 admissibility argument concerning Professor Byard's evidence at [43]-[49], including the evidential basis, the trial judge's ruling and the reasons why the report and oral evidence were correctly admitted. Although Makita and Dasreef were not expressly mentioned, the Court applied s 79 and the circumstances were significantly different from those cases, so the omission did not reveal error or justify reopening or setting aside the orders.

Jurisdiction
Australia
Judgment Date
28 November 2014
Procedural Posture
Consequential Orders; Practice and Procedure in an Appeal / On the Papers Motion by the Appellants Filed 11 November 2014 to Set Aside Orders Made and Entered on 30 October 2014
Outcome
The appellants' motion was dismissed.
Legal Topics
['power to Reopen Judgment and Set Aside Orders' 'failure to Address Submissions' 'failure to Refer to Authorities' 'expert Opinion Evidence' 'evidence Act 1995 (nsw), S 79']
['practice and Procedure' 'appellate Procedure' 'evidence'] ['power to Reopen Judgment and Set Aside Orders' 'failure to Address Submissions' 'failure to Refer to Authorities' 'expert Opinion Evidence' 'evidence Act 1995 (nsw), S 79']

Case Brief

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Procedural Posture

Consequential Orders; Practice and Procedure in an Appeal / On the Papers Motion by the Appellants Filed 11 November 2014 to Set Aside Orders Made and Entered on 30 October 2014

Legal Issues

  1. 1 ["Whether the Court should reopen its principal judgment and set aside the orders dismissing the appeal and requiring the appellants to pay the respondents' costs." "Whether the principal judgment failed to deal with the appellants' argument that Professor Byard's report did not comply with Makita Australia Pty Ltd v Spowles, Dasreef Pty Ltd v Hawchar and s 79 of the Evidence Act 1995 (NSW)." 'Whether failure to refer expressly to Makita or Dasreef revealed error.']

Ratio Decidendi

The motion was dismissed because the principal judgment had identified and dealt with the appellants' s 79 admissibility argument concerning Professor Byard's evidence at [43]-[49], including the evidential basis, the trial judge's ruling and the reasons why the report and oral evidence were correctly admitted. Although Makita and Dasreef were not expressly mentioned, the Court applied s 79 and the circumstances were significantly different from those cases, so the omission did not reveal error or justify reopening or setting aside the orders.

Court Disposition

The appellants' motion was dismissed.

Orders

  • ["Dismiss the appellants' motion filed 11 November 2014 seeking to have the orders made on 30 October 2014 set aside."]