Born Brands Pty Ltd v Nine Network Australia Pty Ltd

The admissibility of the plaintiffs' evidence of the falsity of imputations (b), (c) and (d) 5An issue arose in the course of the proceedings brought by the plaintiffs in defamation as to the admissibility of evidence sought to be given by the second plaintiff, Hayley Birtles-Eades, and the third plaintiff, Sally Birtles, as to the falsity of imputations (b), (c) and (d). The defendants objected to their giving such evidence on the basis that the imputations were matters of opinion that required specialised knowledge and they did not have expertise in a field of specialised knowledge. 6Mr Evatt, who appeared for the plaintiffs, did not suggest that the exception for lay opinion evidence in s 78 of the Evidence Act 1995 applied. Nor did he attempt to qualify either Hayley or Sally as persons with specialised knowledge based on their training, study or experience. Any such attempt would have failed in any event since Hayley and Sally were, in the relevant sense, no more than dedicated amateurs who proceeded by trial and error and experimented, in the broad sense of that word, on their own children to produce a product that appeared to achieve its aim of relieving the symptoms of reflux and colic in infants by elevating their heads to use gravity to aid digestion. 7Mr Evatt submitted that a plaintiff in a defamation case is always entitled to give evidence of the falsity of the imputations conveyed by the matter complained of. Mr Evatt referred to Ainsworth v Burden [2005] NSWCA 174 and in particular the following passage from the judgment of Hunt AJA at [89] with whom Handley and McColl JJA agreed: A plaintiff is nevertheless always permitted to nail the matter complained of as a lie: Australian Consolidated Press Ltd v Uren at 205; Rigby v Associated Newspapers Ltd (No 2) [1969] 1 NSWR 729 at 743; Defamation Act [1974], s 47. Such an assertion of falsity is not a claim for damages; it is, in effect, a remedy which the law of defamation provides, originally thought (on one version at least) to have been provided in order to discourage the practice of duelling or other breaches of the peace. 8Mr Evatt submitted, in substance, that the rule referred to in Ainsworth v Burden that a plaintiff is always permitted to nail the matter complained of as a lie is well established and that "always" means "always". 9In my view, the admissibility of such evidence falls to be determined by reference to Part 3.3 of the Evidence Act 1995. Section 76(1) provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Exceptions to the general prohibition in s 76(1) include lay opinion in s 78 and expert opinion in s 79. The exception for expert opinion requires the demonstration that the witness is a person has specialised knowledge based on the person's training, study or experience and the opinion of that person is wholly or substantially based on that knowledge. 10The cases referred to by Mr Evatt did not require this issue to be determined since in none of them was the evidence sought to be adduced by the plaintiffs a matter of opinion as distinct from a matter of fact. I was informed by Mr Blackburn SC that the defendants had been unable to find an authority where the question that arises for determination had been considered; or, indeed, a case where a plaintiff had been permitted to give opinion evidence on a topic outside of the plaintiff's expertise to prove the falsity of the imputation. 11Where a general statutory provision has the effect of removing a common law right, courts generally require express language before concluding that Parliament intended to abrogate such right: Potter v Minahan [1908] HCA 63; 7 CLR 277 at 304 per O'Connor J. This rule of interpretation finds its widest operation when the common law right sought to be abrogated is a fundamental right such as an accused's person's right to silence when charged with the criminal offence. However, the right to vindicate one's reputation by asserting the falsity of the imputation conveyed by the matter complained of, which is also referred to as "nailing the lie" is not, in my view, in the same category. The giving of the evidence is, as Hunt JA said in Ainsworth v Burden, the remedy. The evidence can be given. It is a question of the use to which it can be put and any limitations that must be imposed on its admission having regard to the Evidence Act. 12In my view it does not follow from a plaintiff's entitlement to assert in the witness box in a defamation proceedings that an imputation which amounts to an opinion is false, that the plaintiff's evidence is admissible on the truth or falsity of the imputation, irrespective of the provisions of the Evidence Act. The authorities cited by Hunt AJA in Ainsworth v Burden in support of the proposition that the plaintiff is "always entitled to nail the lie" concern the plaintiff's entitlement to assert the falsity of the imputation even in circumstances where the defendant has not alleged truth in justification since the falsity of the imputation is germane to damages, although irrelevant to whether the imputation is defamatory. In the passage in Australian Consolidated Press Ltd v Uren [1966] HCA 37; 117 CLR 185 at 205 referred to in Ainsworth v Burden Windeyer J said: But I am unable to accept the proposition that without a plea of justification (that is of truth and public benefit) the truth or falsity of a defamatory statement is an irrelevant consideration in a defamation case. The truth or falsity of the words is irrelevant to the question whether they are actionable but not, I think, to the amount of damages if they be defamatory. A jury is always likely to think that heavier damages should be given for the gratuitous publication of statements that are false than would be appropriate if the same statements were true. A plaintiff is always permitted to go into the witness box to say that what was said of him was a lie. 13Windeyer J was referring, in my view, to the relevance of the plaintiff's evidence of the falsity of the defamatory statement to the assessment of damages, as distinct from its admissibility per se. 14The passage from the judgment of Jacobs JA in Rigby v Associated Newspapers that is cited in Ainsworth v Burden arose from a ground of appeal that the trial judge was in error in permitting any evidence to be given by the plaintiff in a defamation case as to the truth or untruth of defamatory matter or non-defamatory matter contained in any of the publications tendered in evidence. At 743, Jacobs JA said: "I believe that it has always been fundamental to the law of defamation not only in England where truth alone is a defence but also in this State where truth as a defence must be coupled with public benefit, that a person defamed should be able to nail the defamatory statement as a lie and should thereby be able to achieve what is the primary purpose of the law of defamation, namely, that a man should be able to vindicate his reputation in the law courts rather than with the horsewhip, the sword or the pistol. If, as the appellant has submitted, the choice lay with the defendant by his form of pleading, whether in any particular case a plaintiff should be able to vindicate himself by nailing the lie the law of defamation would be absurd and I see no reason why by a process of so-called logical deduction this Court should now after all these years introduce such an absurdity." 15In my view, Jacobs JA was reiterating what was said in Australian Consolidated Press Ltd v Uren; namely, that the defendant could not prevent the plaintiff from asserting the falsity of the defamatory matter by not alleging truth or justification as a defence since the falsity of the defamatory matter was always relevant. Furthermore Jacobs JA's statement also appears to be the source for the proposition in Australian Consolidated Press Ltd v Uren that the right to assert the falsity of the matter complained of or the imputations contained therein is a distinct right, or rather remedy, of vindication that is available to plaintiffs in defamation proceedings. As with Windeyer J's statement in Australian Consolidated Press Ltd v Uren, I do not consider that Jacobs JA was concerned with any other objection, beyond relevance, that could be made to such evidence. 16Furthermore, Hunt AJA in Ainsworth v Burden referred to s 47 of the Defamation Act 1974 in support of the proposition that a plaintiff is always entitled to "nail the lie". Section 47 of the 1974 Act provided: 47 Truth or falsity of imputation On the question of the amount of damages where it is relevant to that question that the imputation complained of was or was not true or a matter of substantial truth: (a) there is no presumption as to whether the imputation was or was not true or a matter of substantial truth, and (b) evidence as to whether the imputation was or was not true or a matter of substantial truth may be adduced by any party (whether or not evidence on the subject is adduced by any other party). 17Section 47 expressly authorised the tender of evidence relevant to truth or falsity of the imputation but only "on the question of the amount of damages" where the truth or falsity of the imputation is relevant. There was no need for s 47 to authorise the relevance of evidence of truth or falsity where truth was pleaded as justification since such evidence would plainly be relevant. Section 47 does not specifically authorise the giving of such evidence irrespective of the formal requirements of the rules of evidence; it merely overcomes any objection on the grounds of relevance since such evidence would be relevant to damages. 18The New South Wales Law Reform Commission recommended the introduction of the provision that became s 47. The reasons for the recommendation appear from [242]- [245] of its report on Defamation (LRC 11), 20 April 1971, extracts of which follow: 242. The truth or falsity of the imputation complained of may affect the harm suffered by the plaintiff in the shape of mental distress or in the shape of injury to property or financial loss. . . . 244. We think that, where the truth or falsity of the imputation is relevant to damages, the defendant should be entitled to adduce evidence on the subject, whether or not the plaintiff has done so. . . 245. In most defamation cases the plaintiff is a living natural person complaining of, amongst other things, mental distress. In the remaining cases, truth or falsity may be otherwise relevant to damages. In all these cases it is a useful consequences that it is open to a plaintiff to assert in a public forum that the defamatory matter published of him is a lie. Thus the law of defamation is able to achieve to some extent the objective of vindication of reputation, notwithstanding that truth alone is not a defence. 19The effect of s 47 was explained by McHugh JA in Singleton v Ffrench (1986) 5 NSWLR 425 at 443: Even before the enactment of s 47 of the 1974 Act, a plaintiff in New South Wales could lead evidence to prove that the matter pleaded was false even though there was no plea of justification: Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 738-739, 743. . . . The effect of s 47 of the 1974 Act was threefold. First, it confirmed that in New South Wales there is no presumption of falsity of defamatory matters so far as damages are concerned. Secondly, it confirmed that the plaintiff could lead evidence on the issue of damages to prove that the defamatory imputation was false. Thirdly, it restored the defendant's right to tender evidence in mitigation of damages to prove that the imputation was true.Thus since 1974 the plaintiff can lead evidence of the falsity, and the defendant can lead evidence of the truth, of the defamatory imputation even though no plea of justification is on the record. 20Section 47 was repealed by the 2005 Act. However, the position at common law as enunciated in Rigby v Associated Newspapers, which had pre-dated the enactment of s 47, continued to apply: the plaintiff could lead evidence on the issue of damages to prove that the defamatory imputation was false. 21Mr Evatt was unable to point to any other authority for the proposition that the plaintiff is always entitled to "nail the lie". 22In my view a plaintiff is entitled to depose to the falsity of the defamatory statement, or imputation. The use to which such statement can be put depends on whether the evidence is otherwise admissible. Where, as here, a plaintiff is not qualified to give evidence of the falsity of a matter of opinion which falls outside the plaintiff's expertise, the plaintiff is not entitled to have the evidence admitted on the question of the falsity of the imputation. The plaintiff can nonetheless give evidence of the plaintiff's belief in the falsity of the imputation but such evidence must be limited to the plaintiff's belief. 23If the falsity of the imputation is proved by admissible evidence, given by a qualified expert within his or her field of specialised knowledge, the plaintiff's evidence of belief, taken with the expert's evidence, would be relevant to damages. 24A plaintiff may also be permitted to assert his or her belief in the falsity of the imputation as part of the "remedy" that the law provides. In other words, the plaintiff might be entitled to assert the falsity of the imputation, even if it is a matter of opinion outside the plaintiff's expertise, in the circumstances of absolute privilege that arise in a court room, in the exercise of his or her right to the remedy of vindication. The assertion of falsity of an opinion in the witness box by a plaintiff who lacked the qualifications to give such an opinion would not, however, be admissible to prove the falsity of the opinion. 25In conclusion, I do not consider that the authorities cited provide any basis for departing from the opinion rule in s 76 or qualifying s 79 of the Evidence Act to permit an unqualified plaintiff with no relevant expertise in a field of specialised knowledge to give opinion evidence that would be admissible on the question of the truth or falsity of the imputation. 26Accordingly, I allowed the evidence to be given but limited its use to the second and third plaintiffs' hurt to feelings and their belief in the falsity of imputations (b), (c) and (d). I did not, however, allow it to be used to prove the falsity of such imputations.

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