Born Brands Pty Ltd v Nine Network Australia Pty Ltd

Parties' submissions 6The plaintiffs relied on the following five matters, taken together: (1)The reasons for my decision to allow the report of Professor Byard over Mr Evatt's objections which included an objection to his expertise; (2)My rejection of the evidence of the second plaintiff as to the increase in sales and my rejection of the evidence of the third plaintff that the first plaintiff's (Born Brand's) business declined rapidly following the broadcast the subject of these proceedings; (3)My refusal to allow neither the second nor third plaintiffs to give evidence about the nature of the materials used to construct the Babywedge product other than as to their belief, in circumstances where they designed and made the product; (4)Questions I asked of Mr Evatt concerning the relevance and effect of a certificate issued to the first plaintiff in respect of the Babywedge product under the Therapeutic Goods Act 1989 (Cth) that certified the product as a medical device (the TGA certificate); and (5)An observation made by me to Mr Evatt about the need to determine damages even were I to find for the defendants in response to his statement that he was not too optimistic about my having to deal with damages. 7Mr Evatt submitted that although no single matter was sufficient to give rise to an apprehension of bias, the matters taken collectively would have that effect. The grounds will be considered in turn before their collective effect is considered.

Ground 1: the admission of Professor Byard's report 8As to the first matter, my reasons for allowing Professor Byard's report were the subject of a separate judgment: Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2013] NSWSC 1646, although reasons were given ex tempore at the time I allowed the report to be admitted. The various objections made by Mr Evatt to that report are set out in those reasons. 9Mr Evatt submitted that the reasons were "so strongly in favour" of Professor Byard's status, that a fair minded lay-observer would consider that I would accept Professor Byard's evidence. Mr Evatt then submitted that if I accepted Professor Byard, the defendants must win the case, a concession which he later, in the course of final submissions, withdrew. 10Mr Evatt submitted, somewhat inconsistently, that my reasons were too strong and too detailed, and on the other hand that they were insufficient to rule on the admissibility of the report. 11A fair-minded lay observer would, in my view, appreciate that it is one of the functions of a trial judge to determine objections to evidence in the course of the hearing. Where objection is taken to an expert's report on the ground that the expert lacks relevant expertise, it is necessary for a judge ruling on an objection to make a finding whether the expert has the relevant expertise to express an opinion by reason of s 76 and 79 of the Evidence Act 1995. The finding that the expert is qualified to give opinion evidence is not, as a fair-minded lay observer would realise, an acceptance of the expert's opinion; rather it is a ruling that the evidence, if otherwise admissible, does not infringe the prohibition on opinion evidence unless certain conditions are met. 12Mr Evatt submitted further that: Your Honour did not hear any submissions from the plaintiff as to why your Honour should not accept his expertise in respect of the manufacture and design of Babywedge. 13This allegation is, in substance, an allegation of denial of natural justice. The relevant exchange appears in the following passage from the transcript of 24 October 2013: MFI 2 [Professor Byard's report] TENDERED; OBJECTION EVATT: On the grounds that the witness is not qualified or an expert on testing the Babywedge or similar products. The witness is not open-minded, but had a preconceived opposition to the Babywedge product which tainted his report. He didn't give sufficient or any reasons sufficient or any proper reasons for the conclusions in his report. His conclusions about the quality of Babywedge were outside his field of experience. He made assumptions about Babywedge and other products without sufficient basis. His reasons were inadequate. I think that covers it. That's the basis of it, your Honour. [Emphasis added.] 14I do not discern any basis on which a fair-minded lay observer would have considered that Mr Evatt had not concluded his submissions in support of the objection to Professor Byard's report. Indeed, the emphasised passage would have provided such an observer with an unequivocal indication that Mr Evatt had indeed said all that he wished to say in support of his objection and that I, as trial judge, was entitled to make a ruling, deliver reasons for my decision to overrule the objection and admit the report in evidence. 15The further aspect to the first matter on which Mr Evatt relied was the following exchange that took place immediately after the report of Professor Byard was admitted and marked as an exhibit: EVATT: Is that the end of the case, your Honour? HER HONOUR: I think that will be for you to judge, it is not for me to judge Mr Evatt. Because I have not heard the rest of your evidence or the defendant's submissions or submissions. I have just dealt with your five objections to Professor Byard's report. As I understand it you still have a number of witnesses to call. EVATT: We have financial witnesses that go to damages. HER HONOUR: But there is the other plaintiff who you have to call and also the plaintiff's mother and the witness who suffers from agoraphobia. EVATT: Mr Debenam. I'm not too sure what has happened to the agoraphobia, your Honour. If he is coming he will have to come tomorrow. HER HONOUR: So in terms of where we are up to at the moment I am just allowing Professor Byard to be interposed which is why he has been called although the plaintiff's case is not closed. EVATT: Is not just a case of admitting the report, your Honour. Your Honour has just given a judgment upholding the report. HER HONOUR: Not at all. I have dealt with your objections, Mr Evatt. That does not mean that you can't persuade me that I won't accept what Professor Byard said in his report. I have just dealt with your five objections. EVATT: So it is still open. HER HONOUR: Of course it is open. You say he does not have the expertise to express conclusions and opinions. I say he does. That does not mean I accept his opinions, that is a matter for another day. EVATT: I misunderstood. 16Mr Evatt submitted that the words "I say he does" in the last passage that recorded what I said would have given a fair-minded lay observer the impression that I had not only admitted the report but that I had also accepted the report, irrespective of any evidence that had been, or might be, given by the plaintiffs or on their behalf. 17I am not persuaded that a fair-minded lay observer would do other than consider what I said to be a reiteration of the limits of my ruling on the admissibility of Professor Byard's report: that it had been admitted but that whether I accepted his opinions would be determined on all of the evidence and at the conclusion of the hearing. 18In further support of this submission Mr Evatt relied on British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283. In that case, the plurality, Heydon, Kiefel and Bell JJ, found that a judge, who had expressed himself in strong terms that indicated extreme scepticism about the denials of British American Tobacco, should be prohibited from hearing and determining the case of a widow against British American Tobacco. The judge before whom the trial was listed for hearing had, at an interlocutory stage in unrelated proceedings, found that the company adopted its document retention policy for the purposes of fraud. The plurality, upholding Allsop P in dissent in the Court of Appeal, said at [145]: Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial. Judge Curtis's express acknowledgment of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the Laurie proceedings. Allsop P's conclusion was correct. In addition to the possibility of the evidentiary position changing, a reasonable observer would note that the trial judge's finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, that while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about BATAS's denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge, and that the nature of the fraud about which the judge had been persuaded was extremely serious. In the circumstances of this unusual case, a reasonable observer might possibly apprehend that at the trial the court might not move its mind from the position reached on one set of materials even if different materials were presented at the trial - that is, bring an impartial mind to the issues relating to the fraud finding. Johnson v Johnson is distinguishable. 19Mr Evatt also relied on Australian National Industries Limited v Spedley Securities Limited (in liquidation) (1992) 26 NSWLR 411 and in particular the statement by Mahoney JA at 442 with whom Meagher JA agreed that a previous decision of the same fact or upon the credibility of a relevant witness will normally if not inevitably create a reasonable apprehension of bias. He submitted that I ought to have simply said "I admit the report into evidence" rather than give reasons upholding the admissibility on the basis of his qualifications. This submission could not, in my view, be reconciled with his earlier submission that my reasons were insufficiently detailed. 20In my view, a fair-minded lay observer would have considered the reasons I gave for admitting the report of Professor Byard over the plaintiffs' objection were an adjunct of the requirement to give reasons to explain why I did not accept the plaintiffs' submission that Professor Byard lacked the qualifications to give opinion evidence about the relative qualities of the Babywedge product and whether the imputations were true. It was a necessary part of such obligation that I refer to and make findings whether Professor Byard met the requirements of s 79 of the Evidence Act, which in turn required me to make findings about his expertise. I do not consider that such an observer would have reasonably apprehended that I might not bring an impartial and unprejudiced mind to the issues for determination in the proceedings, including whether the defendants had justified the imputations on the grounds of truth by the evidence of Professor Byard.

Ground 2: rejection of evidence objected to on the grounds of form 21As to the rulings on the admissibility of the second and third plaintiffs as to the financial fortunes of Born Brands, these rulings were made solely on the basis of the form of the evidence. The evidence was expressed in general terms in both instances. The plaintiffs relied on an expert's report of Mr Hughes, to which were appended business records relating to the financial performance of Born Brands over the relevant period. My rejection of general descriptions of trends, formal objection having been taken, would, in my view, have been seen by a fair-minded lay observer as no more than an application of the rules of evidence.

Ground 3: rejection of plaintiffs' evidence as to the attributes of materials on the basis of non-compliance with s 79 of the Evidence Act 22As to the third matter, my disallowance of the second and third plaintiffs' evidence about the material of which Babywedge was constructed and the qualities of such materials was limited. I allowed evidence as to the materials, including that the product was made from open cell foam and that the cover was made from "breathable cotton" and was 100% cotton. I disallowed evidence concerning the properties of so-called memory foam on the grounds that the evidence constituted opinion evidence and did not comply with s 79 of the Evidence Act. 23In my view a fair-minded lay observer would have considered that I was applying, or at least genuinely attempting to apply, the rules of evidence in making such rulings.

Ground 4: exchange relating to probative value of TGA certificate 24As to the fourth matter, the probative value of the TGA certificate, this was the subject of questioning in the course of Mr Evatt's final submissions. The relevant passage is: EVATT: . . . The fact of the matter is the product is licensed by the TGA, is still on sale, even though sales are down, as are other baby device products. HER HONOUR: But how does the TGA certification help where it says "works a medical device", et cetera? EVATT: Presumably they examine it, look at it. HER HONOUR: But it's questionable whether, given that the certification, as I recall, was obtained before this FTA warning? EVATT: Yes, your Honour. HER HONOUR: So when the TGA examined the device and certified it as a medical device, that's one thing but it may not have turned its mind to the matter with which the US Consumer Product Safety Commission was concerned. EVATT: Should I have called the relevant officer from the TGA to say that? HER HONOUR: I just don't know whether certifying something as a medical device, I don't imagine that means that it's absolutely safe for all purposes. EVATT: There's no evidence that the certification has been withdrawn. No one has come along from the TGA to say that so your Honour has got to assume that without evidence. HER HONOUR: No, I wouldn't assume it has been withdrawn, certainly not, but it's just how far does it go and what does it mean? EVATT: There's also evidence that the FTA itself approved some of these baby devices; some were approved, some were not approved. 25In my view, a fair-minded lay observer would understand the exchange set out above to amount to the orthodox exchange between bar and bench to elucidate matters of concern to the trial judge and to provide an opportunity to a party to put submissions on particular matters or on the use to which particular evidence can be put. As the plurality, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, said in Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [13]: Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

Ground 5: whether damages would need to be assessed 26The fifth matter referred to above derived from the following exchange in the course of Mr Evatt's final submissions at the conclusion of the hearing on 25 October 2013: EVATT: I am not too optimistic about your Honour having to deal with damages but here we are HER HONOUR: I have to probably determine it in any event, in case the matter goes any further. EVATT: In any event, they are documents on the principle of damages in a defamation action and some of the heads and the reference to the 11th edition. And I have given my friend a copy. They are the matters that have to be taken into account. HER HONOUR: Thank you. 27Mr Evatt submitted that a fair-minded lay observer would have considered that what I said provided an indication that I had already made up my mind against the plaintiffs and that they would not be entitled to an award of damages. 28In my view, a fair-minded lay observer would have appreciated that whether I found for the plaintiffs or against them on the question of liability, I might be obliged to determine the quantum of damages. Such an observer would have considered that the words "in any event", indicated that I would be required to determine damages irrespective of whether I considered the defendants to be liable. 29I do not consider that any of the grounds identified meet the test articulated in Michael Wilson, either individually or collectively. In my view, the plaintiffs have neither articulated any basis on which it is said that the grounds might lead me to decide the case other than on its legal and factual merits nor any logical connection between the alleged grounds and the feared deviation from the course of deciding the case on its merits. 30Accordingly, the application that I disqualify myself on the grounds of apprehended bias fails.

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