Born Brands Pty Ltd v Nine Network Australia Pty Ltd

Born Brands Pty Ltd and others (the applicants) appealed to the Court of Appeal of New South Wales against decisions made in the Common Law Division concerning a defamation action brought against Nine Network Australia Pty Ltd (the respondent). The dispute arose from a broadcast by the respondent that discussed risks associated with infant sleep positioners overseas. Although the applicants' product was featured, it was not explicitly named. The applicants alleged that the broadcast conveyed defamatory imputations that they sold and offered for sale a product subject to recall and that was unsafe.

The Court of Appeal was required to determine several legal issues. These included whether the broadcast conveyed the alleged defamatory imputations, whether the applicants qualified as "excluded corporations" under the Defamation Act 2005 (NSW) such that they could not bring a defamation action, and the admissibility of certain evidence. The court also considered the defences of substantial truth and contextual truth, and whether the applicants had established malice for a claim of injurious falsehood. Finally, the court had to determine if there was a reasonable apprehension of bias on the part of the trial judge.

The Court of Appeal, in its reasoning, addressed the various grounds of appeal. It found that the alleged defamatory imputations were not conveyed by the broadcast. The court also considered the definition of "employs" and "persons" in the context of the excluded corporation provisions, and the admissibility of non-expert opinion evidence regarding the safety of the product. The court ultimately dismissed the appeal, finding that the grounds relating to damages, the admissibility of specific evidence, the amendment of the defence, and apprehended bias were not made out.

The Court of Appeal granted the applicants leave to appeal on certain grounds but dismissed the appeal overall. The applicants were ordered to pay the respondent's costs.