Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369

Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369

Although the trial judge erred in concluding that the pleaded imputations were not conveyed, were not defamatory, and that Born Brands Pty Ltd lacked standing, those errors did not affect the result. The respondents' expert evidence was admissible and supported findings that the imputations concerning Babywedge as a type of infant sleep positioner were substantially true, and that any imputation about recall caused no further reputational harm in light of substantially true contextual imputations. The injurious falsehood claim failed because the failure to obtain comment was not reckless enough to establish malice, and the apprehended bias ground was without substance. The appeal was...

Jurisdiction
Australia
Judgment Date
30 October 2014
Procedural Posture
Application for Leave to Appeal and Appeal in Defamation and Injurious Falsehood Proceedings / Court of Appeal From Interlocutory and Final Judgments in the Common Law Division
Outcome
Leave to appeal granted in part; appeal dismissed; applicants ordered to pay the respondents' costs in the Court of Appeal.
Legal Topics
['defamatory Imputations' 'substantial Truth' 'contextual Truth' 'expert Opinion Evidence' 'injurious Falsehood and Malice' 'corporate Standing to Sue in Defamation' 'apprehended Bias' 'leave to Appeal']
['defamation' 'evidence' 'tort' 'civil Procedure'] ['defamatory Imputations' 'substantial Truth' 'contextual Truth' 'expert Opinion Evidence' 'injurious Falsehood and Malice' 'corporate Standing to Sue in Defamation' 'apprehended Bias' 'leave to Appeal']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal in Defamation and Injurious Falsehood Proceedings / Court of Appeal From Interlocutory and Final Judgments in the Common Law Division

Legal Issues

  1. 1 ['Whether the television broadcast conveyed the pleaded defamatory imputations about Babywedge and the applicants.' 'Whether any conveyed imputations were defamatory of the applicants.' 'Whether expert evidence concerning infant sleep positioners and Babywedge was admissible and capable of establishing substantial truth.' 'Whether the defences of justification and contextual truth under the Defamation Act 2005 (NSW) were established.' 'Whether failure to seek comment from the applicants was so reckless as to support malice for injurious falsehood.' 'Whether evidence from the individual applicants as to falsity and product characteristics was admissible.' 'Whether Born Brands Pty Ltd was an excluded corporation with standing to sue in defamation.' 'Whether the trial judge should have recused herself for apprehended bias.']

Ratio Decidendi

Although the trial judge erred in concluding that the pleaded imputations were not conveyed, were not defamatory, and that Born Brands Pty Ltd lacked standing, those errors did not affect the result. The respondents' expert evidence was admissible and supported findings that the imputations concerning Babywedge as a type of infant sleep positioner were substantially true, and that any imputation about recall caused no further reputational harm in light of substantially true contextual imputations. The injurious falsehood claim failed because the failure to obtain comment was not reckless enough to establish malice, and the apprehended bias ground was without substance. The appeal was...

Court Disposition

Leave to appeal granted in part; appeal dismissed; applicants ordered to pay the respondents' costs in the Court of Appeal.

Orders

  • ['Grant the applicants leave to appeal from the judgments, both interlocutory and final in the Common Law Division, excluding the grounds relating to damages (grounds 8-10); the admissibility of evidence of the second and third applicants as to the falsity of imputations (b), (c) and (d) and as to the design,...