Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No 2)

[2014] NSWCA 406

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

On the papers

Decision date:

28 November 2014

Before:

Basten JA;
Meagher JA;
Tobias AJA

Decision:

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

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE and PROCEDURE - appeal - power to reopen judgment and set aside orders - orders entered - failure to address submission - failure to refer to authorities relied on by applicants

Legislation Cited:

Evidence Act 1995 (NSW), s 79
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16

Cases Cited:

Born Brands Pty Ltd v Channel Nine Network Australia Pty Ltd [2014] NSWCA 369
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Makita Australia Pty Ltd v Spowles (2001 52 NSWLR 75

Category:

Consequential orders

Parties:

Born Brands Pty Ltd (First Appellant)
Hayley Birtles-Eades (Second Appellant)
Sally Birtles (Third Appellant)

Nine Network Australia Pty Ltd (First Respondent)
Gabriella Rogers (Second Respondent)
Georgie Gardner (Third Respondent)

Representation:

Counsel:
Mr CA Evatt, Mr RKM Rasmussen, Mr DJ Dibb (Appellants)
Mr TD Blackburn SC, Mr ATS Dawson (Respondents)
Solicitors:
Beazley Singleton Lawyers (Appellants)
Johnson Winter & Slattery (Respondents)

File Number(s):

2013/360306

 Decision under appeal 

Jurisdiction:

9111

Citation:

[2013] NSWSC 1649;
[2013] NSWSC 1651

Before:

Adamson J

File Number(s):

SC 2011/115199

Judgment

1. THE COURT: The principal judgment in these proceedings was delivered on 30 October 2014: Born Brands Pty Ltd v Channel Nine Network Australia Pty Ltd [2014] NSWCA 369. Leave to appeal was granted on a limited basis; the appeal was dismissed.

1. On 11 November 2014 the solicitors for the appellants filed a notice of motion seeking an order that "the Court's orders made and entered on 30 October 2014 be set aside and in lieu thereof that the Court orders that the appeal be allowed with costs." It was presumably intended not to seek to have the order granting leave to appeal set aside, but rather the orders dismissing the appeal and requiring the appellants to pay the respondents' costs, being orders (3) and (4) made on 30 October 2014. An affidavit filed in support of the motion contained the following paragraphs:

"3. Upon perusing the judgement it became apparent the Court has not dealt with the arguments advanced by the Appellants that Professor Byard's Report did not comply with the requirements expressed in Makita Australia Pty Ltd v Spowles (2001 52 NSWLR 75 at paras 85-9) and in Dasreef Pty Ltd v Hawchar (2011 243 CLR 588 at paras 50ff on pages 508ff).

4. It is submitted with respect that Professo[r] Byard's criticisms of Baby Wedge were no more than oracular pronouncements of the type criticised by Heydon JA in paragraph 87 and other paragraphs in Makita and that the Professor's Report did not comply with these authorities or Section 79 of the Evidence Act."

1. The basis on which the Court had power to reopen its judgment and orders was not identified, but it may be accepted that such a power exists under the Uniform Civil Procedure Rules 2005 (NSW), ("the UCPR"), rr 36.15 and 36.16. To the extent that the latter rule was relied upon, the motion was filed within 14 days of the entry of the orders, in compliance with subr (3A). The ground upon which the power was sought to be exercised was a failure of the Court to deal with arguments advanced by the appellants. In a letter to the Registrar accompanying the motion the appellants' solicitor made reference to the passages in the written submissions and in the transcript of oral argument in the course of which the issue was raised and developed.

1. It may be assumed for present purposes that a failure to address a ground of appeal squarely raised by the appellant may provide a basis for recalling a judgment, so that the arguments not considered can be addressed either under r 36.15 on the basis that the orders were irregularly made or under r 36.16 on the basis of a motion filed within time which permits the Court to set aside or vary a judgment or order "as if the judgment or order had not been entered": r 36.16(3A).

1. The present motion does not attract the operation of such a power. The submission that "although Professor Byard undoubtedly had specialised knowledge relevant to the general topic of SIDS and risks of suffocation, that knowledge did not qualify him in accordance with s 79 of the Evidence Act 1995 (NSW) to give an opinion on the risks associated specifically with the Baby Wedge" was identified in the principal judgment at [43]. The evidential basis upon which the challenge to admissibility was raised was referred to in the following paragraphs. The ruling of the trial judge on admissibility was stated at [47]. The reasons why the report and Professor Byard's oral evidence were correctly admitted were set out at [48]-[49].

1. It is true that the principal judgment did not refer to Makita or to Dasreef. It did not need to. It applied the principles encapsulated in s 79 of the Evidence Act. Whether judicial explanation of statutory principles is of assistance in another case will depend upon the similarity of circumstances. The circumstances of the present case were significantly different from those in each of Makita and Dasreef. The failure of a court to indulge in the tiresome repetition of well-known authorities, castigated by Lord Chief Justice Judge in the United Kingdom as "the anxious parade of knowledge", does not reveal error.

1. The motion is unmeritorious and must be dismissed. The motion was not listed before the Court, nor was the respondent invited to file submissions with respect to it. Accordingly, the respondent cannot have any reasonably incurred costs with respect to the motion, assuming it was served on the respondent, which is not known.

1. The order of the Court is:

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

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Amendments

01 December 2014 - Amending CA file number

Amended paragraphs: Coversheet

Decision last updated: 01 December 2014