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

[2013] NSWSC 1647

Supreme Court

New South Wales

Medium Neutral Citation:

Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No. 2) [2013] NSWSC 1647

Hearing dates:

21-25; 28-30 October 2013

Decision date:

21 October 2013

Before:

Adamson J

Decision:

With respect to the second plaintiff's statement admitted as Exhibit L1:

(1) Allow [107], [108], [114], [120] and [121] on the limited basis that each is relevant to the claim for damages for injurious falsehood but not to the claim in defamation.

(2) Allow [111] in respect of both claims.

Catchwords:

EVIDENCE- whether plaintiffs identified in evidence of persons who made adverse comments about the plaintiffs' product- whether inference could be drawn that such persons viewed the broadcast that constituted the matter complained of

Cases Cited:

Baltinos v Foreign Language Publications Pty Limited (1986) 6 NSWLR 85
Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No. 6) [2013] NSWSC 1651
Channel Seven Sydney Pty Limited v Parras [2002] NSWCA 202
Radio 2UE v Chesterton [2009] HCA 16; 238 CLR 460

Category:

Interlocutory applications

Parties:

Born Brands Pty Ltd (First Plaintiff)
Hayley Birtles-Eades (Second Plaintiff)
Sally Birtles (Third Plaintiff)
Nine Network Australia Pty Ltd (First Defendant)
Gabriella Rogers (Second Defendant)
Georgie Gardener (Third Defendant)

Representation:

Counsel:
CA Evatt and RKM Rasmussen (Plaintiffs)
TD Blackburn SC and ATS Dawson (Defendants)
Solicitors:
Beazley Singleton Lawyers (Plaintiffs)
Johnson Winter and Slattery (Defendants)

File Number(s):

2011/115199

Publication restriction:

Nil

Judgment

1. The nature of the proceedings and the relevant facts appear sufficiently from my principal judgment in the matter: Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No. 6) [2013] NSWSC 1651, which should be read together with these reasons.

1. In the course of these proceedings the defendants objected to certain paragraphs in the evidentiary statement of the second plaintiff on the grounds that they were not relevant since they did not establish either that persons had seen the broadcast that comprises the matter complained of (the Broadcast), or that there was no, or insufficient, evidence from which I could conclude that the persons who expressed concern about the Babywedge product identified any or all of the plaintiffs. In order not to delay the conclusion of the proceedings, I informed the parties that I would rule on the objection and would publish my reasons later. My reasons follow.

1. The relevant paragraphs in the second plaintiff's statement, to which this particular objection was taken, are [107], [108], [111] and [114]. The defendants conceded that [111] was in a different category since Amber Roberts, who is referred to in [111] was a friend of the second plaintiff and can be assumed to know of the connection between Babywedge and, at least, the second plaintiff.

1. The paragraphs objected to on this basis are:

107. Shortly after the broadcast of the matter complained of, Pinky McKay telephoned me to enquire about extra stock of the Babywedge that she was to sell at a Baby Expo. I felt obliged to tell her about the Channel 9 news item and I did so. She said to me words to the following effect "So that explains why the people at the Expo have been pointing at the Babywedge and saying 'that's the one that kills the babies'." I felt terribly hurt and embarrassed by this, and also at the fact that I had to defend my product to Pinky McKay, who had put her faith in it and had recommended it.

108. Shortly after the broadcast of the matter complained of I received a telephone call from Frank Ugolini who ran the Bubs n Grubs store in Brisbane. He said to me words to the following effect "I have been told off by customers for selling a product that kills babies. Sales have dropped recently."

111. During the same period, Amber Roberts, a friend of mine, contact me and said words to the following effect "I am very concerned. Please assure me that the Babywedge doesn't kill babies." I assured her that it did not.

114. Between 1 October 2010 and April 2012 I attended three Baby Expos/Tradeshows to promote the Babywedge. At these functions a number of customers made remarks to me, saying words to the effect that "these product kill babies." On one occasion a woman approached the counter when another parent was about to buy a Babywedge and said words to the following effect "Honey, don't buy that. It's been known to kill babies."

120. In July 2010 we had contracted for radio advertising for radio station 97.3 FM. The initial campaign was to start on 9 August 2010 and run through to 31 October 2010. Shortly after 1 October 2010 I received a telephone call from Naomi Westerway, who worked for the station, who said words to the following effect "I have had a phone call from an upset listener who has seen the Channel 9 news story and accused us of promoting a product that kills babies."

121. I also received a telephone call from the station manager who said words to the following effect "It would be best not to continue with your advertising after the current campaign has finished because of the effects of the Channel 9 news report."

1. My rulings on these paragraphs and the reasons for my rulings follow.

Paragraph 107

1. The plaintiffs contended for the same inference that Pinky Mackay drew when the second plaintiff told her about the Broadcast: namely, that the people who had denigrated Babywedge to Ms Mackay had done so because they had seen the Broadcast.

1. The evidence that the persons who spoke to Ms Mackay had seen the Broadcast is circumstantial. The evidence does not reveal that any of these people mentioned to her that they had seen the Broadcast. Nonetheless the timing of the adverse remarks, which were made, according to [107], "shortly after the broadcast", when taken together with the evidence as to the number of people who watched the Broadcast, some 600,000 viewers, permits the inference to be drawn that the Broadcast was the reason for at least some of the people's concern about Babywedge. Although there were other reports in the media, which are in evidence, I infer that the number of people who viewed the Broadcast is likely to be significantly greater than those who obtained the information about the dangers of sleep positioners from other sources.

1. The evidence is sufficient, in my view, to establish that the people who expressed concern about the product had seen the Broadcast.

1. The defendants submitted that there is nothing in [107] to support the inference that such persons identified any of the plaintiffs with the Babywedge product. They submitted that it was not sufficient for the plaintiffs to show that persons subsequently identified them from their stall at the Expo. It was, subject to irrelevant exceptions, necessary that the persons identify the plaintiffs at the time the matter complained of was broadcast: Baltinos v Foreign Language Publications Pty Limited (1986) 6 NSWLR 85.

1. The defendants relied on the substantial and important distinction between a statement about a person's business or goods on the one hand and a defamatory statement that reflected poorly on the person's reputation on the other: Radio 2UE v Chesterton [2009] HCA 16; 238 CLR 460 at [11]. The law provides a remedy for the former in the tort of injurious falsehood and for the latter in an action for defamation. In order to be defamatory, the statement must reflect adversely on the plaintiffs' business reputation and not merely on the business or the goods sold in the business: Radio 2UE v Chesterton at [32]. In order to do so it is necessary that the plaintiff or plaintiffs be identified.

1. Mr Evatt relied on Channel Seven Sydney Pty Limited v Parras [2002] NSWCA 202 in support of the following two propositions:

(1)   It was not necessary that the plaintiffs be identified by name.

(2)   It was not necessary that their business be identified by name.

1. In Channel Seven v Parras, three plaintiffs sued Channel 7 for damages for defamation arising out of a news telecast in January 2000. The third plaintiff was a corporation conducting the business of an hotel and bar at Potts Point, and the other two plaintiffs were the directors and managers of the company. The telecast dealt with police raids on two nightclubs in Sydney, one of which was operated by the third plaintiff. The nightclub was visually and orally identified. None of the plaintiffs was referred to by name or title in the telecast.

1. In Channel Seven v Parras, Mason P, Handley JA and Ipp AJA agreeing, referred at [45] to the distinction that arises in cases where the plaintiff carries on a business otherwise than under his, her or its name and the matter complained of does not refer to the plaintiff by name. In such cases the plaintiff must prove the link between the publication and the plaintiff. However, Mason P in the following passages said that proof of the link did not require proof of the plaintiff's name:

[46] Does this mean that the viewer or reader must know the plaintiff's name? In my opinion, no. It is sufficient to prove publication to persons who, in the words of Mason and Jacobs JJ in Mirror Newspapers "would know who the owners were". This requires identification of ownership and the plaintiff, but does not require knowledge of the plaintiff's name.

[47] In the reasons of Simpson J which are set out below the example is given of a statement "The man who lives in that house is a paedophile" made of a reclusive person whose name was not even known to people living in his street. Would the evidence of a neighbour who heard that remark and realised that it referred to the plaintiff prove identification? I think so. It would not matter that the man whom he now thought less of remained the nameless occupant of No X, Smith Street.

[48] This hypothetical situation falls within the principle illustrated by Owen J in Cross. Owen J recognised that identification of an unnamed person by a small percentage of the community would suffice, provided "some one or more of those to whom the pamphlet was published had that special knowledge". The "special knowledge" required in these circumstances was not knowledge of the plaintiff's name, but of the plaintiff's identity with the matter complained of. In Cross it would have been enough if a witness happened to know that the plaintiff was the printer who used the imprint "X-press Printery".

[49] Naturally, it will be an unusual case in which evidence tending to identify the plaintiff with the defamatory publication would not also link the plaintiff's name. But, like the rose which by any other name would smell as sweet, a person's reputation adheres to more than his, her or its name. It is an attribute of (legal) personality itself. It would be anomalous that, if it were said falsely that a David Jones store was riddled with cockroaches, David Jones Pty Ltd could recover substantial damages in defamation (if it were the owner) but ACN 346 Pty Ltd could not (if it were the owner) absent evidence that a reader knew the obscure name of the corporate owner of the well known business.

1. In the examples given by Mason P in Channel Seven v Parras, there was an additional connection between the plaintiff and the matter complained of that linked the identity of the plaintiff to the matter complained of, although not by name. In the present case the only connection between the plaintiffs and the matter complained of is that the plaintiffs either, in the case of the first plaintiff, offered for sale or sold the Babywedge, or in the case of the second and third plaintiffs, caused the Babywedge to be offered for sale and sold. In the David Jones example the business is known through a trade name used by the owner as a label for the business, and is thereby associated with the owner.

1. Application of the two propositions from Channel Seven v Parras referred to above does not result in the plaintiffs having established identification in [107]. All that has been proved is that persons identified the goods that happened to be the plaintiffs' goods, without identifying them as the plaintiffs' goods. Although the plaintiffs do not have to be identified by name, there must, in my view, be something more than merely the supposition that unnamed, unknown persons, who were in fact the plaintiffs, sold the goods or offered them for sale. The additional factor is missing here.

1. Accordingly, [107] is relevant to the claim for damages for injurious falsehood, but not relevant to the claim in defamation and I admit it on that limited basis.

Paragraph 108

1. Paragraph [108] is in the same category as [107] and the same reasons and ruling apply.

Paragraph 111

1. I would draw the same inference that the person concerned, Amber Roberts, saw the Broadcast from the reference to period as being the same: namely, "shortly after the Broadcast." As Amber Roberts is a friend of the second plaintiff I infer that she contacted the second plaintiff because she knew that she was associated with the sale of Babywedge. Accordingly, in my view, the plaintiffs have established identification and this paragraph is relevant to the defamation claim as well as the injurious falsehood claim.

Paragraph 114

1. The time period referred to in [114] is "Between 1 October 2010 and April 2012". I would not infer that the persons concerned had seen the Broadcast because of the length of the time period, although some of them may have done so. I consider that [114] suffers from the same deficiency as far as identification is concerned as [107].

1. Because it is probable that at least some of the persons concerned had seen the Broadcast, I allow [114] on the same limited basis as [107].

Paragraph 120

1. Paragraph [120] is sufficient to establish that the listener saw the Broadcast but it suffers from the same deficiency as far as identification is concerned as [107]. There is no indication that any of the plaintiffs were referred to in the advertisements or that listeners would be aware of anything that linked them to the Babywedge product. I allow it on the same limited basis as [107].

Paragraph 121

1. Paragraph [121] is sufficient to establish that at least some of the listeners saw the Broadcast but it suffers from the same deficiency as far as identification is concerned as [107]. There is no indication that any of the plaintiffs were referred to in the advertisements or that listeners would be aware of anything that linked them to the Babywedge product. I allow it on the same limited basis as [107].

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Decision last updated: 13 November 2013