Coles Supermarkets Australia Pty Ltd v Clarke

Coles Supermarkets Australia Pty Ltd sought leave to appeal from a decision of the primary judge who had found that a supermarket manager had slandered the plaintiff, Mr Clarke, by publicly accusing him of stealing prawns. The appeal concerned whether the primary judge had erred in finding that the defamatory words had been published, in assessing the reliability of the plaintiff's case, and by failing to consider contrary inferences from documentary evidence.

The central legal issues before the Court of Appeal were whether the primary judge had made errors in fact-finding regarding publication and the assessment of evidence. Specifically, the court considered whether the evidence accepted by the primary judge was sufficient to establish publication of a material and defamatory part of the words alleged, and whether the primary judge's factual conclusions were "glaringly improbable" or "contrary to compelling inferences" as required by the test for appellate intervention in findings of fact, drawing on principles from cases such as *Fox v Percy*. The court also considered the degree of tolerance allowed in the departure between the words proved and the words pleaded, referencing *Tournier v National Provincial and Union Bank of England*.

The Court of Appeal found that the plaintiff's evidence provided sufficient acceptance of a material and defamatory part of the words alleged, and that the primary judge's factual conclusions were not demonstrably flawed. The court concluded that the primary judge had not erred in their findings and that leave to appeal should be refused. The application for leave to appeal was dismissed with costs.