Conroy's Smallgoods Pty Ltd v Channel Seven Adelaide Pty Ltd - [2007] SASC 76

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CONROY'S SMALLGOODS PTY LTD & ANOR v CHANNEL SEVEN ADELAIDE PTY LTD
[2007] SASC 76
Judgment of The Full Court
(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Sulan)
8 March 2007
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - IN GENERAL
Appeal and cross appeal from a District Court judgment for damages arising out of television broadcasts by the defendant, Channel Seven, which depicted meatworkers in the plaintiff company’s Port Pirie abattoir smoking marijuana in the change rooms, which the defendant inferred was a threat to themselves and the public health, in that contaminated meat might not be detected in the processing line – the broadcast suggested that management was turning a ‘blind eye” to the practice – observations as to pleading of imputations within the natural and ordinary meaning of words – appeal against finding of partial justification and against the quantum of damages – appeal dismissed – cross-appeal by the defendant against separate judgment in favour of the plaintiff company’s managing director allowed and judgment in his favour quashed.
Supreme Court Rules r 46.19, referred to.
Sands v Channel Seven Adelaide [2005] 91 SASR 466; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181; Chakravarti v Advertiser Newspapers Ltd (1988) 193 CLR 519; Nationwide News v Chapman [2001] SASC 30; Prichard v Krantz (1984) 37 SASR 379; Potts v Moran (1976) 16 SASR 284; Sutherland v Stopes [1925] AC 47, considered.

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - REBUTTAL OF PRIVILEGE BY MALICE - EVIDENCE OF MALICE
The trial judge held that the actions and omissions of one of Channel Seven’s reporters amounted to malice – observations as to the requirements for a finding of malice – held that malice had not been made out.
Roberts v Bass (2002) 212 CLR 1, considered.

INTEREST - RECOVERABILITY OF INTEREST - AWARD OF INTEREST AS DAMAGES - IN SOUTH AUSTRALIA - GENERALLY
Pre-judgment interest – the defendant complained that an award of a lump sum based on 4 per cent interest throughout the whole of the period between publication and judgment was in error – held on appeal that ordinarily the interest should be awarded for a discounted period of one-half of the total, in view of the accumulating nature of the award – however, the rate should have been a commercial rate of at least double 4 per cent, so that there was no reason to interfere with the award.
District Court Act 1991 s 39 and s 42(2); District Court Rules r 101.02A(f), referred to.
Interest Awards in Australia Edelman and Cassidy (2003); Vilo v John Fairfax & Sons Ltd [2000] SWSC 539; John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131; The Law of Defamation in Australia and New Zealand Gillooly (1998); Thompson v ACTV Supreme Court of ACT, 4 June 1998 (unreported); Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361; Select Homes Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd (2001) 79 SASR 451, considered.

PROCEDURE - COSTS - INTERLOCUTORY PROCEEDINGS - COSTS IN THE CAUSE
The defendant argued unsuccessfully on appeal that a District Court judge erred in ordering the defendant to pay the plaintiffs’ costs of a successful pre-trial application for an injunction – as for the costs of the trial, these were not caught by section 42(2) of the District Court Act 1991, as an application for a permanent injunction could not be entertained in the Magistrates Court, and in any event, in view of the outcome of the appeal, the trial judge’s costs order would have to be revisited – observations as to the power of the Full Court on appeal to interfere with pre-trial cost orders.
Supreme Court Rules 1987 r 95.15(i), referred to.
Crowley v Glissan (1905) 2 CLR 402; Bunning v Cross (1978) 141 CLR 54; Smith v Tabin (1987) 10 NSWLR 562; City of Victor Harbor v Roeger (2002) 82 SASR 140; Wenpac Pty Ltd v Allied Westralian Finance Ltd (1994) 123 FLR 1, considered.

APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT
Held that Full Court appeals are in the nature of a re-hearing – observations as to the proper approach to trial judge’s findings as to credibility.
Milne v Jennings SCSA, Judgment No 3060 (unreported); McGregor v Rowley (1928) SASR 67; Fox v Percy (2003) 214 CLR 118; Dearman v Dearman (1908) 7 CLR 549; Scott v Pauly (1917) 24 CLR 274; Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634; [1985] 1 All ER 635; Joyce v Yeomans [1981] 1 WLR 549; [1981] 2 All ER 21; Chambers v Jobling (1986) 7 NSWLR 1; SRA (1999) 73 ALJR 306; 160 ALR 588; Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207; Jones v The Queen (1997) 191 CLR 439; Warren v Coombes (1979) 142 CLR 531; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 (unreported); CSR Ltd v Della Maddalena (2006) 80 ALJR 458; Walden v Black [2006] NSWCA 170, considered.

APPEAL AND NEW TRIAL - APPEAL -- GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
The plaintiffs complained of the alleged inadequacy of the trial judge’s reasons for judgment – held that the reasons were adequate – criticism of developing tendency to attack the length and nature of reasons for judgment – a trial judge does not have to deal with every item of evidence, every issue raised and every argument – what is important that at the end of the day the reader should not be left to speculate as to which of a number of possible “routes” have been taken to the conclusion expressed.
Pettitt v Dunkley (1971) 1 NSWLR 376; Watson v Anderson (1976) 13 SASR 329; Mountford v Magistrates Court of South Australia & Anor [2006] SASC 184 (unreported); Perkins v County Court of Victoria and Ors (2000) 2 VR 246; Penfold v Penfold (1981) 144 CLR 311; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; R v Awatere [1982] 1 NZLR 644; Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; Capital and Suburban Properties Ltd v Swycher [1976] Ch 319; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palm (2003) 216 CLR 212; Hunter v Transport Accident Commission (2005) 43 MVR 130; Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd [2006] FCAFC 117 (unreported); Digi-Tech (Australia) Ltd v Brand (2004) 62 IPR 184; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; Customs and Excise Commissioners v A [2003] 2 All ER 736, considered.

CONROY'S SMALLGOODS PTY LTD & ANOR v CHANNEL SEVEN ADELAIDE PTY LTD
[2007] SASC 76
Full Court: Perry, Nyland and Sulan JJ

PERRY J.
Background
Events leading up to the broadcasts in issue
The alleged defamatory publications
The defamatory imputations
The trial judge’s reasons and conclusions
The arguments on appeal
“… putting your health in danger …”
The identification of Andrew Conroy in the second and third promos
“Turning a blind eye”
Fair comment and qualified privilege
Malice
Pre-judgment interest
Costs
(a)      Interlocutory costs order
(b)      Costs order made by the trial judge
Damages
Some evidentiary matters
(a)      Evidence of attempt in 2001 to broadcast edited version of story
(b)      Rejection of expert evidence
(c)      Fresh evidence on appeal
Duty of the appeal court
Adequacy of the trial judge’s reasons
Conclusion
This is an appeal and cross-appeal against a judgment given by a District Court judge following a trial in that court in which the two plaintiffs, Conroy’s Smallgoods Pty Ltd (“Conroy’s”) and Peter Andrew Conroy (commonly called “Andrew”), sued Channel Seven Adelaide Pty Ltd (“Channel 7”) for damages for libel.
The entitlement to damages was said to arise by reason of allegedly defamatory material contained in broadcasts on Channel 7’s TV network on about 30 separate occasions between 6.30 pm on Friday 17 August 2001 and Monday 20 August 2001. The broadcasts took the form of what was described as “promotional material” for Channel 7’s program known as Today Tonight, due to be screened on the evening of Monday 20 August 2001.
The trial ran for approximately 58 days.
On 20 July 2005 the trial judge gave judgment in favour of each plaintiff against the defendant for $7,000. In each case he awarded $1,100 by way of pre-judgment interest, so that the total judgment for each plaintiff was $8,100.
The plaintiffs filed a single, joint notice of appeal in this Court. The grounds of complaint advanced by them are substantially the same in each case. The principal grounds are that the trial judge erred in finding that the publications were partially justified; that certain alleged imputations did not arise from the broadcasts; and that the plaintiff Andrew Conroy was not identified in certain of the broadcasts. They seek a reversal of the findings made against them, and an increased award of damages, or a re-trial.
In its notice of cross-appeal the defendant complains that the trial judge erred in finding that the plaintiff Andrew Conroy was identified in the first broadcast; in failing to find that the defendant had fully justified whatever defamatory meaning should be attributed to the broadcasts, and in finding that the defendant, through one of its employees, Rohan Wenn, was activated by malice.
For convenience I will continue to refer to the parties to the appeal as the plaintiffs and the defendant, or by their contracted names.
References in square brackets are to paragraphs in the trial judge’s reasons, unless otherwise indicated by the context.
I will not deal separately with the cases presented by each plaintiff except where there were differences between them which it is necessary to refer to in order to understand these reasons.
Background
Conroy’s is a company incorporated in South Australia. It is controlled by the Conroy family, who have operated a business in South Australia processing and marketing meat and meat products for more than 90 years. At the relevant time its only directors were the second plaintiff, Andrew Conroy, his brother Patrick Conroy, and their father, Robert Conroy. Andrew Conroy and Patrick are joint managing directors of the company.
As well as conducting a business in the wholesale sale of meat, Conroy’s conducts a substantial trade in the production and sale of smallgoods bearing the Conroy’s label.
Since the early 1990s, Conroy’s have conducted an abattoir at Port Pirie. It is the only abattoir or meatworks in that town. The abattoir has a capacity to slaughter up to 3,300 animals, comprising sheep, lamb and goats, on each working day. Most of the product is exported, but a small percentage is sold in the domestic market.
From time to time before 2001, the operation of the abattoir was adversely affected by industrial disputes of one kind or another. Whether or not because of that, the financial viability of the abattoir was, in the years leading up to 2001, finely balanced.
Some years before 2001, Conroy’s acquired Pace Trading Pty Ltd (“Pace”) which conducted the business of a boning room in Adelaide. At Pace, processed carcasses from the Port Pirie abattoir were converted into various cuts of meat for sale in the local wholesale market or for export.
Of the two managing directors, the plaintiff Andrew Conroy had the major responsibility for the Port Pirie abattoir. Andrew Conroy maintained a hands-on approach to the business, and at times worked in it as a slaughterer. Andrew Conroy was present at the abattoir on at least two or three days a week.
Hygiene was a major concern, and various procedures had been developed over the years in order to ensure that the dressed carcasses were free of contamination and satisfied the relevant government standards for the industry. A number of personnel were involved full-time at the abattoir in monitoring compliance with the standards.
As part of the maintenance of those standards, the company had a strict policy against workers consuming alcohol or drugs during working hours. Evidence as to the implications of that policy and its effectiveness was a central focus of the trial.
Events leading up to the broadcasts in issue
On 12 July 2001, Ken Burns, a Conroy’s meatworker, using a false name, rang Channel 7. He said that, contrary to the company’s rules, some meatworkers were openly smoking marijuana in the change rooms at the abattoir. He offered to surreptitiously film them.
An employee of Channel 7, Rohan Wenn, rang Burns back and discussed the matter with him. He arranged to equip Burns with a small camera and recorder. For that purpose, he met with Burns on 27 July 2001 near the abattoir.
Burns wasted no time in putting the equipment to use. On the same day, he filmed some workers and recorded them during work breaks when they were apparently smoking marijuana in the change rooms. One of the sequences showed a worker, apparently smoking marijuana, talking to one of the company’s team leaders, Wayne Farrugia, who, on the face of it, was not taking any action about the conduct of the worker.
Other restrictions imposed by Conroy’s proscribed eating and drinking in the change rooms. The film also depicted flagrant breaches of that prohibition.
On 30 July 2001, Burns took more footage, again depicting workers in the change rooms. Some of the meatworkers filmed were obviously smoking marijuana.
One passage depicted on the film showed Tom Northcott, who at the time held the position of safety co-ordinator at the abattoir, coming to the entrance of the change rooms. This was followed by some whistling and someone calling out, “Tom, Tom, Tom”. Apparently this was to warn those smoking marijuana to desist. Northcott is then heard to say, apparently to the workers at large, that there was to be an AQIS[1] inspection on the following Wednesday, when there was to be no eating or smoking.
[1] Australian Quarantine and Inspection Service – a department of the Commonwealth government.
Soon after that filming was performed, Wenn recorded an interview with Burns when he discussed with him his knowledge of the marijuana smoking at the abattoir and Burns’ assertion that management was aware of it. Wenn later obtained footage of a silhouette of a person’s head against the skyline of Port Pirie port, the object being that the silhouette could be shown to make it appear that an anonymous meatworker was speaking.
Wenn returned to Adelaide and showed the producer of Today Tonight, Graham Archer, the footage which he had obtained. A decision was made to incorporate it into the program to go to air on the evening of Monday 20 August 2001.
On Thursday 16 August 2001, Archer wrote the script, including the script for promotions to be shown during the intervening days ahead of the broadcast of the program.
The promotions were designed to enliven the interest of the public in viewing the program on the forthcoming Monday. They were described throughout the trial as “promos”. From now on I will describe them as such.
The first promo to be shown on Friday 17 August 2001 was described as the “in-show promo”. I will maintain that description.
Apart from the in-show promo shown on that date, a number of other screenings of promos, the text and content of which varied a little from the in-show promo, went to air on a number of occasions leading up to 20 August 2001.
On 20 August 2001, a judge of the District Court granted an interim injunction restraining Channel 7 from publishing any of the proposed program on the Today Tonight episode due to go to air on that night.
So that in the events which happened, the alleged defamatory broadcasts were said to comprise the in-show promo and the subsequent promos, of which there were of the order of 30 screenings between Friday 17 August 2001 and Monday 20 August 2001.
The alleged defamatory publications
The in-show promo was screened a little before 7.00 pm on Friday 7 August 2001 at the end of the Today Tonight program broadcast on that evening. The content was as follows [Leigh McCluskey was the program presenter and Tony Hehir a consultant on industrial safety]:

Sound

Vision

Leigh McCluskey: “On Monday night, stoned at work. Our meat workers doing drugs on the job, risking the safety of their mates and putting your health in danger and all caught on camera.”

Head shot of Leigh McCluskey.

Rohan Wenn: “In your experience have you ever seen anything like this”.

Tony Hehir: “No, not as blatant as this”.

Wenn talking to Hehir in front of a television set which is showing the hidden camera film of Conroy’s change rooms.

Disguised voice: “And then they put marijuana in their pipes and then smoked their pipes before they go up on the floor.”

Meat workers in the change rooms smoking pipes.

Disguised voice: “It is only a matter of time before someone gets killed or injured.”

Silhouette of a head against a background of a port and hills.

Tony Hehir: “Drug and alcohol use is costing Australian industry in excess of 6.5 billion dollars a year in lost productivity.”

Picture of Hehir and then of meat workers smoking in the change rooms.

Disguised voice: “Well of course they know what goes on, it’s case of them turning a blind eye to it.”

Silhouette of a head against a background of a port and hills.

Leigh McCluskey: “Just one of our stories coming up next week. Until then have a terrific weekend, good night.”

Head shot of Leigh McCluskey.

The disguised voice was the voice of Ken Burns, but with the characteristics of his voice altered electronically so that it could not identify him. The faces of the meatworkers shown in the change rooms, other than those which are smoking, were pixelated. The in-show promo, which was shown only once, lasted about 30 seconds.
The only two promos which were shown between the screening of the in-show promo and the making of the injunction lasted for 30 seconds and 15 seconds respectively. They were:
The 30 second promo:

Sound

Vision

Unidentified voice: “On Today tonight, Stoned at work.

Meatworkers smoking pipes in the change rooms.

Disguised voice: “Um, put marijuana in their pipes.”

Silhouette of head against a background of a large chimney and a port.

Unidentified voice: “Our meatworkers doing drugs on the job. Risking the safety of their mates.”

Meatworkers smoking pipes in the change rooms, including a close up of a pipe.

Disguised voice: “It’s only a matter of time before someone gets killed.”

Silhouette of a head against a background of a port.

Unidentified voice: “Putting your health in danger. All caught on camera.”

More pictures of meatworkers smoking pipes in the change rooms.

The 15 second promo

Sound

Vision

Unidentified voice: “On Today tonight, Stoned at work.

Meatworkers smoking in the change rooms.

Disguised voice: “Um, put marijuana in their pipes.”

Silhouette of head against a background of a tall chimney and a port.

Unidentified voice: “Our meatworkers caught doing drugs on the job. Risking the safety of their mates.”

Meatworkers smoking pipes in the change rooms.

Disguised voice: “It’s only a matter of time before someone gets killed.”

Silhouette of a head against a background of a port.

Unidentified voice: “Putting your health in danger. Monday / Tonight on Seven.

Meatworkers smoking pipes in the change rooms.

Altogether the three promos showed seven meatworkers smoking what appeared to be marijuana. That it was marijuana was not in contest at the trial.
Two of the seven were workers supplied by a labour hire company, Rexco, who had been dismissed by Conroy’s before the promos were shown. I will deal with the circumstances of their dismissal in due course.

The potential audience which might have seen the promos was described by the trial judge in the following passage from his judgment. This passage was not disputed on the appeal:
[44]When the in-show promo was broadcast by the defendant it was estimated that it then had a viewing audience of between 204,000 and 207,000 people in the metropolitan area of Adelaide. Any viewers through the towers in Port Pirie and surrounding areas are not included in this figure. Between 11.04 pm on 17 August and 6.07 pm on Monday 20 August one or other of the two subsequent promos were broadcast on about 31 occasions throughout the day and night on Channel Seven when its estimated audience varied between 10,000 viewers and 220,000 viewers plus those in Port Pirie and surrounding areas.
[45]People who saw the promos and who identified Conroys as the Abattoirs concerned spoke to Andrew Conroy and Vaughn [sic] Sampson. Tom Northcott was again instructed to remain in the change rooms during the major breaks to ensure there was no smoking there. On Monday 20 August Andrew Conroy instructed the plaintiffs’ solicitors in the matter. They wrote that day to the defendant alleging that the promos and the proposed story were defamatory and requiring an undertaking the programme would not be shown until Conroys had had the opportunity to consider and approve its contents. The defendant did not give the undertaking and the 1^st plaintiff obtained an urgent interim injunction from His Honour Judge Muecke of this Court preventing the programme being shown that night. On Today Tonight on 20 August Leigh McCluskey stated that the proposed programme on drug workers at an Abattoirs could not be shown for legal reasons.
The defamatory imputations
Conroy’s pleaded [statement of claim par 8]
The first promotion [the in-show promo] in its natural and ordinary meaning meant and was understood to mean in relation to the first plaintiff that:
8.1meat workers at the first plaintiff’s Abattoirs smoke marijuana during work hours and inside the work premises, namely the change room area with the knowledge and approval of the first plaintiff;
8.2meat workers at the first plaintiff’s Abattoirs carry out their work while affected by illegal drugs with the knowledge and approval of the first plaintiff;
8.3the first plaintiff through its management was aware that meat workers at the first plaintiff’s Abattoirs were consuming drugs, namely marijuana, and did nothing to stop that practice;
8.4the first plaintiff through its managers placed its employees at risk by refusing to discipline employees who they knew were smoking marijuana in the workplace;
8.5the first plaintiff was negligent in the conduct of its Abattoirs business in that its management knew that employees were consuming marijuana while at work and did nothing to stop the practice;
8.6the first plaintiff did not care about the occupational health and safety of its employees in that it knew that its employees could get killed by smoking marijuana whilst at work at the first plaintiff’s Abattoirs but did nothing to stop the practice;
8.7the first plaintiff by its management acquiesced in a practice which involved the unlawful consumption of marijuana on its premises;
8.8the conduct of the first plaintiff in permitting its meat workers to smoke marijuana at the first plaintiff’s premises created a risk that the first plaintiff’s meat products were contaminated thereby putting the health of the public in South Australia at risk;
8.9the first plaintiff failed in its duty to consumers of its meat products by putting the health of consumers at risk by permitting its employees to consume marijuana at work at its Abattoirs;
8.10the first plaintiff’s meat products are unsafe.
In separate paragraphs of the statement of claim, Conroy’s pleaded similar imputations in relation to Andrew Conroy relating to the in-show promo as those which appear in paragraph 8, with the exception of 8.10.
Both plaintiffs pleaded the same imputations arising out of the second and third promos as those pleaded with respect to the in-show promo.
As the trial judge pointed out, the second and third promos did not contain the words “Well, of course, they know it, it’s a case of them turning a blind eye to it”.
At the trial, the plaintiffs contended that they were entitled to rely not only on the pleaded imputations, but other defamatory meanings which they submitted were within the ordinary and natural meaning of the words used, more particularly the words “risking the safety of their mates, and putting your health in danger … well, of course they know what goes on, it’s a case of them turning a blind eye to it”.
As to the pleading of imputations within the natural and ordinary meaning of the impugned publication, the trial judge accepted, in my view correctly, as an accurate statement of the law in this State the dictum of White J in Sands v Channel Seven Adelaide:[2]
[22]Although there is no Rule of Court requiring a plaintiff to plead imputations where only the natural and ordinary meaning of the words published is relied upon, it is the practice in this State to plead the imputations which the plaintiff alleges. I note that in Chapman v Australian Broadcasting Corporation,[3] Lander J, with whom Doyle CJ and Nyland J agreed, held that the effect of Chakravarti v Advertiser Newspapers Ltd [4] was to require a plaintiff to plead the imputations said to arise, whether the imputations arise out of the natural and ordinary meaning of the words or whether they arise by reason of extrinsic facts and circumstances known by the person to whom the publication was made.[5] There is, of course, an obligation to plead the imputations and particulars of the facts and matters relied upon for those imputations where the plaintiff alleges that the published words have a defamatory sense in other than their ordinary meaning.[6] In each case, the pleading of the imputation relied upon informs the defendant of the precise imputation alleged by the plaintiff, and assists in the identification by the defendant of the basis, if any, on which the claim can be defended. Thus the issues between the parties may be narrowed.
[2] [2005] 91 SASR 466 at 471.
[3] (2000) 77 SASR 181.
[4] (1998) 193 CLR 519.
[5] Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 [56]. See also Nationwide News v Chapman [2001] SASC 30 at [9] per Doyle CJ (with whom Duggan and Williams JJ agreed).
[6] Supreme Court Rules r 46.19
In answer to the plaintiffs’ contentions, counsel for the defendant referred the trial judge to Prichard v Krantz,[7] where the plaintiff was held to be bound to his pleaded imputations. However, as pointed out by the trial judge, the Full Court in that case acknowledged that the trial judge in such circumstances had a discretion not to strictly restrict the party to its pleadings.
[7] (1984) 37 SASR 379.
In this case, the trial judge expressed the following conclusion on this issue
[101]In the manner in which this case has been presented and fought by both parties I do not consider that the defendant would be prejudiced if I allowed the plaintiff some latitude under r 46A.10 to rely on the words actually used which they had not pleaded as imputations. However, for similar reasons I will subsequently allow the defendant to rely on matters of justification beyond its strict pleading of that defence.
The point of the contentions on this issue, and the trial judge’s ruling, arose with respect to at least two aspects of the pleaded defamatory imputations.
·The first pleaded defamatory imputation refers to the smoking of marijuana by workers during work hours “… with the knowledge and approval of the first plaintiff”. The word “approval” is used in a similar context in par 8.2. Insofar as those allegations were said to have been based upon the words “… it’s a case of them turning a blind eye to it”, the trial judge correctly ruled that those words were not capable of sustaining the implication that the plaintiffs approved the practice, but accepted that the words gave rise to the lesser imputation that they acquiesced in it.
·The pleaded imputations frequently refer to “risk” but not to “danger”, although the word “danger” was used in the in-show promo.
The trial judge observed that if the plaintiffs were to be held strictly to he pleaded imputations, it would be necessary to address the question of the difference between “risk” and “danger” in this context.
Consistently with the view which he took of the matter, he was prepared to allow the plaintiff to rely upon the natural and ordinary meaning of “putting your health in danger”. Sometimes the words “risk” and “danger” can be synonymous, depending on the context. At other times, danger might, as the trial judge observed, imply “a more serious type of potential harm than risk”. The trial judge concluded:
However, as “risking the safety of their mates” was later linked with “it’s only a matter of time before somebody gets killed or injured” it is clear that the risk spoken of is a really serious risk, and therefore not really different from danger.
In the result, the trial judge held:
[108]For the reasons given, I am prepared to allow the plaintiffs to raise further defamatory meanings based on the natural and ordinary meaning of the words in the in-show promo “Our meatworkers doing drugs on the job, risking the safety of their mates, and putting your health in danger … it’s only a matter of time before someone gets injured or killed – well, of course, they know what goes on, it’s case of them turning a blind eye to it”. Those words without more are defamatory of each of the plaintiffs.
In the result, the trial judge accepted that the imputations pleaded by Conroy’s, with the qualifications to which I have referred, in relation to the in-show promo properly arose from the words used except for:
§Par 8.5 The trial judge ruled “this imputation does not properly arise. Any turning of a blind eye would be understood to be a deliberate and intentional act which is inconsistent with the concept of negligence”.
§Par 8.10 The trial juge ruled that “the ordinary viewer would not understand the first promo to mean any more than some of Conroy’s products might be unsafe. It is a substantial overstatement and beyond any meaning of the in-show promo that all of Conroy’s products are unsafe. The thrust of the in-show promo was about risk or danger from intoxicated meatworkers. It is implicit that the risk or danger of harm will not necessarily eventuate. This imputation is not proved”.
The plaintiffs pleaded the same imputations with respect to the second and third promos as they did with respect to the in-show promo. However, there was a difference, as I have already pointed out, in that the second and third promos did not contain the words “Well, of course, they know it’s a case of them turning a blind eye to it”.
In the result, in the context of the case mounted by Conroy’s, the trial judge found that the equivalent of imputation 8.3, 8.4, 8.5, 8.6 and 8.7 arose with respect to the second and third promos, but not the equivalent of 8.1, 8.2, 8.8, 8.9 and 8.10.
The trial judge further held that for persons who saw only the subsequent promos, there was no evidence upon which Andrew Conroy could have been identified. In the result, Andrew Conroy’s only claim with respect to the second and third promos was with respect to viewers who saw both the in-show promo and the subsequent promos, as to which the second and third promos would have served to “reinforce” what the viewer might have seen and understood from the in-show promo.
In its defence Channel 7 denied that the words used in any of the broadcasts were capable of giving rise to the pleaded innuendos or any meaning defamatory of the plaintiffs. However, its defence as filed did not embody a plea of justification of the imputations relied upon by Conroy’s, but only pleaded justification in the context of its plea of fair comment, more particularly the facts relied upon in that plea, and in the context of lesser imputations which it pleaded as part of a “Polly Peck” defence.
At all events, the defence came close to pleading justification of all of the imputations, and by the time of final addresses, counsel on both sides dealt with the question of justification on the footing that Channel 7 was seeking to justify all of the imputations advanced by the plaintiffs.
In his reasons for judgment, the trial judge held:
[113]Although the plaintiffs’ counsel formally protested in his final address that the defendant was seeking to extend its justification beyond its pleadings, both counsel addressed on the basis of justification being at large. There was no unfairness to the plaintiffs in allowing the defendant to pursue this course. In any event, as mentioned above, the latitude I extended to the plaintiffs in permitting them to rely on defamatory meanings not expressly pleaded, requires that the defendant be allowed to seek to justify those unpleaded meanings.
Insofar as the issue was raised on appeal, in my view, the trial judge’s ruling in that respect was sound, and no ground has been established to justify interference with it.
The trial judge correctly held:[8]
§ That in advancing the defence of justification, the onus on the defendant was to prove on the balance of probabilities that the imputations which were established “are true in substance and fact on the balance of probabilities”.
§ The justification must meet the sting of the imputation.[9]
§ It is sufficient for the defendant to prove that the imputations are substantially true.[10]
[8] [114].
[9] Potts v Moran (1976) 16 SASR 284.
[10] Sutherland v Stopes [1925] AC 47 at 79.
Apart from the defence of fair comment, Channel 7 pleaded that the in-show promo was published on an occasion of qualified privilege.
In its defence, Conroy’s denied that the promos would be understood to refer to the first or second plaintiffs. However, by the time the stage was reached for final submissions, Channel 7 conceded that some viewers would have understood the meatworkers referred to in the in-house promo to be meatworkers employed by Conroy’s, by reason of the albeit fleeting depiction of the Port Pirie harbour and skyline in the in-show promo.
However, whether Andrew Conroy as the second plaintiff was identified in any of the promos remained very much in dispute throughout the trial.
The trial judge’s reasons and conclusions
The trial judge made quite extensive findings as to the credibility of a number of witnesses whose veracity was put in issue. I will not attempt to summarise those findings, although I will refer to them incidentally when appropriate in discussing resolution of particular issues.
On the issue of identification of the plaintiffs, the trial judge found that Conroy’s were identified as the target of the libels, not only in the in-show promo, which was conceded, but also in the other two promos. He found that there was sufficient evidence of identification of the plaintiff Andrew Conroy in the in-show promo but not in the other two promos, except for persons who had seen the in-show promo.[11]
[11] [97].
His findings as to identification, however, were limited to persons who viewed the promos in Port Pirie and the surrounding districts, together with persons associated with the meat and smallgoods trades and abattoirs in South Australia, with the further qualification, as I have said, that identification of Andrew Conroy would only be satisfied in the case of those who had seen the in-show promo.[12]
[12] [97].
As for the defamatory imputations, I have already set out the imputations which the trial judge was prepared to find arose from the impugned publications.
Central to the decision in the case was the trial judge’s findings as to the defence of justification. The trial judge found that both Conroy’s as a corporate entity and Andrew Conroy knew that there was an extensive practice of smoking marijuana in the change rooms, which had been going on for some time prior to 17 August 2001.
On the issue of whether the plaintiffs had been guilty of “turning a blind eye” to the practice, the trial judge found that to have been proved in the case of both plaintiffs, for the period up to late July.
However, he found that between early August and the broadcast of the in-show promo a change had occurred, and Conroy’s and Andrew Conroy had in that period taken positive steps to enforce its drug and alcohol policy. He found that those steps were inconsistent with Conroy’s or Andrew Conroy turning a blind eye to the practice over that period.
Given that he found that the implication in the in-show promo was that the practice of turning a blind eye was then current and continuing, at least up to the time of the broadcast, he held that the defendant had not fully justified the imputations arising from the word “it’s a case of them turning a blind eye to it”.
But he held that the imputations, “… insofar as they were based on ‘risks the safety of their mates’, ‘putting your health in danger’ and ‘they know what goes on’ were wholly justified”.[13]
[13] [163].
In the result, he held that Channel 7 had made out a defence of justification to all of the defamatory imputations except those based on “turning a blind eye” to the practice of smoking marijuana for a short period of two weeks, and that this was not sufficient to defeat the plaintiffs’ claim, although the limited nature of the period was to have a significant effect on the assessment of damages.[14]
[14] [150].
He further held that the defence of fair comment failed, and that in the circumstances there was no need to go into the difficult question whether there was sufficient reciprocity in duty and interest between Channel 7 and its viewers to attract what he described as “duty and interest qualified privilege”. He found that if the privilege existed, it would be defeated by express malice.
As to malice, he found that malice had been proved, in that Wenn was actuated by improper motive and malice.[15]
[15] [158].
The trial judge held that the conduct of Channel 7 in publishing the relevant imputations was not reasonable, and in those circumstances it was unnecessary to address what he described as the “somewhat uncertain state of the law” on the circumstances in which the privilege known as extended qualified privilege arose.
On the issue of damages, he held that damages could only be awarded with respect to imputations proved without regard to the publication of imputations which had otherwise been justified.
In the result, given that he held that the partial justification was almost complete justification, damages could only amount to a modest allowance, which, as I have indicated, was $7,000 for each plaintiff. In the case of Andrew Conroy, they included a small allowance for aggravated damages with respect to Channel 7’s proven malice.
He awarded in addition a lump sum of interest for each plaintiff of $1,100.
This gave rise to the judgment for each plaintiff for $8,100.
The arguments on appeal
The plaintiffs filed a notice of appeal challenging virtually all of the findings adverse to them made by the trial judge. Channel 7 reciprocated with a notice of cross-appeal which complained of virtually all of the issues found against them at the trial.
Before the hearing of the appeal, the parties were directed to file written submissions.
The parties took that direction to be an invitation to inundate the appeal court with a plethora of material. The plaintiffs filed a book of submissions which ran to approximately 200 pages. Channel 7 responded with a book of written submissions only slightly less extensive.
Subsequently the plaintiffs filed supplementary submissions dealing with recent authorities on the question of the adequacy of the reasons of the trial judge, with particular reference to the making of findings of credit based on demeanour.

Oral argument on the hearing of the appeal extended over three days.
In their written submissions the plaintiffs submitted that the grounds of appeal raise essentially five issues which they dealt with under the following headings:
·“Putting your health in danger”.
·The identification of Andrew Conroy in the second and third promos.
·“Turning a blind eye”.
·Damages.
·Further evidence on the appeal.
The plaintiffs’ coverage of issues under those headings encompassed in one way or another most of the points raised in their notice of appeal.
It will be convenient if I first deal with the plaintiffs’ case under those headings.
“… putting your health in danger …”
The trial judge found it proved that “the practice of marijuana smoking at the abattoirs was ‘putting your health in danger’ and putting the health of the public of South Australia at risk”.[16] That finding amounted to a finding of justification of the imputations which found expression in par 8.8 and par 8.9 of the statement of claim to the effect that in allowing its meatworkers to smoke marijuana, the abattoir created a risk that Conroy’s meat products would be contaminated, which in turn put the health of the public, more particularly the health of consumers, at risk.
[16] [125].
In contradistinction to his findings as to imputations 8.8 and 8.9, the trial judge declined to find that the implication alleged in par 8.10 of the statement of claim arose from the publications in question.
Dealing with that aspect of the matter, the plaintiffs contended on appeal that the trial judge should have found that the broadcasts meant that Conroy’s meat products are unsafe.[17] Essentially what the plaintiffs put on appeal was that a viewer would reasonably conclude that if he or she consumed any of Conroy’s meat products, their health would be in danger. In advancing that submission, the plaintiffs referred to a passage in the judgment of Kirby J in Chakravarti v Advertiser Newspapers:[18]
Where words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject. That is the price which publishers must pay for the use of loose language. (footnotes omitted)
[17] Written submissions par 50.1.
[18] (1998) 193 CLR 519 at 574. See also Potts v Moran (1976) 16 SASR 284 per Bray CJ at 305.
The plaintiffs contended that a reasonable viewer, confronted by the publications, would reach the view that their health was in danger if they consumed Conroy’s product and that it was a proper imputation in the words used that Conroy’s meat products were unsafe.
I have carefully considered this submission, which is not without some force.
However, at the end of the day I would not be prepared to differ from the conclusion reached by the trial judge in the following passage in his judgment:
[107] ……

8.10

The ordinary viewer would not understand the first promo to mean any more than some of Conroy’s products might be unsafe. It is a substantial overstatement, and beyond any meaning of the in-show promo, that all of Conroy’s products are unsafe. The thrust of the in-show promo is about risk or danger from intoxicated meatworkers. It is implicit that the risk or danger of harm will not necessarily eventuate. This imputation is not proved.[19]

[19] [107], table point 8.10.

I agree.
The same conclusion may be reached by another route.
One must start with the actual words used, before considering the imputations which may properly be drawn. Those words are “… putting your health in danger …”. When the trial judge found that the message conveyed by those words was justified, he did so by reason of his finding that the consumption of marijuana by the workers increased the risk of contamination of meat which, in turn, gave rise to an increase in the risk that the health of consumers might be adversely affected.
I am unable to see that it was any part of the imputation to be drawn from those words that all of the meat products produced by Conroy’s were unsafe. I do not accept the contention which finds expression in par 2A of the Notice of Appeal that the trial judge wrongly characterised the imputation in par 8.10 of the statement of claim to mean “only that some of Conroy’s meat products might be unsafe”.
Likewise, I would dismiss the contention advanced in par 2 of the Notice of Appeal that the trial judge erred in holding that the promos “did not convey the imputation pleaded in par 8.10 … statement of claim that Conroy’s ‘meat products are unsafe’”.
The trial judge’s treatment of the imputations alleged in par 8.8 and par 8.9 of the statement of claim differed from the conclusion which he reached as to the imputations in par 8.10.
As I have explained, the trial judge refused to find that the imputations alleged in par 8.10 could be sustained by reference to the publications.
However, he held that the imputations alleged in par 8.8 and par 8.9 did arise from the publications, but were justified.
The trial judge correctly observed that it was not suggested that there was any material difference between the imputations contained in par 8.8 and par 8.9. I will set out the two paragraphs again:
8.8The conduct of the first plaintiff in permitting its meatworkers to smoke marijuana at the first plaintiff’s premises created a risk that the first plaintiff’s meat products were contaminated thereby putting the health of the public in South Australia at risk;
8.9The first plaintiff failed in its duty to consumers of its meat products by putting the health of consumers at risk by permitting its employees to consume marijuana at work at its abattoirs.
The finding that the imputations contained in those two paragraphs were justified involved the rejection by the trial judge of the argument advanced by the plaintiffs that there could be no danger to public health from the processing of carcasses by workers who might have been affected by smoking marijuana, in view of the effectiveness of the system of inspection known as the MSQA system and the fact that the products which emanated from the abattoir consistently met relevant industry standards.
As the trial judge observed in his reasons:
[127]A substantial part of the trial was taken up with the plaintiffs’ contention that there could be no danger to public health from the Abattoirs because of the MSQA system which it conducted. The argument was that any contamination and its source, would be picked up by the system and eliminated. It was contended that if any meatworker was intoxicated, and thereby caused contamination, the system would identify this and its source.
As was the case at the trial, a substantial part of the hearing on the appeal was taken up with consideration of the same and related issues. It is fair to say that consideration of these issues was central to the arguments presented on the appeal.
Consideration of these issues obliged the trial judge to assess and reach conclusions as to the possible relationship between ingestion of marijuana by meatworkers involved in the processing line and risks to consumers caused by contamination which might be found in the final product, notwithstanding adherence to the various safety systems which had been put in place by Conroy’s.
Evidence of the setting up of a system known as MSQA (Meat Safety Quality Assurance) was given by Conroy’s quality assurance officer, Vaughan Sampson.
Sampson commenced employment in the capacity of quality assurance officer (he had been employed for periods before then by Conroy’s in other capacities) in 1996. He developed progressively a meat safety quality assurance manual to ensure compliance with the Export Control Act1982 (Cth) and supporting legislative requirements. He developed the manual in association with an officer of the Australian Quarantine and Inspection Service (AQIS), a department of the Commonwealth Government which dealt with export meat standards. AQIS developed a national plant management system, as part of which a local area technical manager, Dr Wigg, oversaw the development of the MSQA system by Conroy’s.
To quote the plaintiffs’ written submissions:[20]
The Meat Safety Quality Assurance system set out in the Meat Safety Quality Assurance manual comprised a number of components and consisted of, in essence, a general overview as to the operation of the system, work instructions for management and all operatives in the abattoir and Standard Operating Procedures for the abattoir, of which there were forty five, and also Standard Operating Procedures for laboratory testing of product, of which there were nine.
[20] Par 77.9.
The system involved the monitoring of the processes adopted by Conroy’s on the floor of the abattoir and monitoring of the quality of the product, more particularly as to what was described as micro- or macro-contamination of carcasses. The monitoring was carried out by inspectors employed by Conroy’s. An overview of the system was performed by AQIS, who conducted monthly audits. Records were kept of the outcome of the monitoring, both by the MSQA officers and by AQIS.
Further inspections were carried out by Pace with respect to the meat delivered to it, although the trial judge observed that there was no evidence as to the thoroughness of the inspections carried out by Pace.[21] If Pace did discover contamination, either macro or micro, it issued “unsatisfactory meat transfer” notices to Conroy’s.
[21] [128].
The MSQA system obliged Conroy’s to make written responses to any such notices.
In the course of his reasons for judgment, the trial judge quoted an example of one of the notices given by Conroy’s under the MSQA system in response to an unsatisfactory meat transfer notice issued by Pace. It is in the following terms:
[128] …
Description: Ingesta, Faecal contamination, Pathological lesions
Response
°      Notification given to all operational supervisors and quality assurance staff.
°      A concentrated effort to eliminate zero tolerance defects has been undertaken since first notification.
°      Visit to Supervisory Staff to Est 162 for product assessment.
°      AQIS on site staff notified of pathological lesions with procedures intensified in effort to ensure future conformation.
°      Scouring livestock, anal plugging used in effort to remove faecal smearing.
°      Modification to loading out facility to enhance final trim operation.
°      Increased cleaning of yards to minimise contamination of already in many cases, heavily soiled raw product.
°      As Establishment 162 provides raw product, the supply of clean short wool, shorn or even lightly crutched raw product would greatly assist confirming to today’s stringent processing requirements?
As to the responses by Conroy’s to unsatisfactory meat transfer notices issued by Pace, the trial judge commented in his reasons:
[128]…While these detailed responses frequently referred to instruction and retraining given to staff there is no mention anywhere in any of them of the possible cause of the macro contamination being the intoxication of some meat workers by marijuana and any steps taken to eliminate that practice. As I will find later, Sampson knew of the practice of marijuana smoking among meat workers and his failure to address this issue in his responses to instances of macro-contamination being found after the carcasses had left the Abattoirs meant that the MSQA system was not being fully implemented, and thus was not minimising the potential danger to public health. It is likely that if the meat workers had all been sober a significant proportion of these instances of contamination would not have occurred.
A detailed survey of the evidence given on the topics of the MSQA system, AQIS and NPMS (National Plant Monitoring System), and a critical analysis of the trial judge’s treatment of that evidence is given in the written submissions of the plaintiffs.[22] I have read and carefully considered those submissions, including the evidence referred to.
[22] Pages 50 to 89, par 75 to par 90.
The evidence included testimony from three expert witnesses whose contribution to consideration of this aspect of the matter was important, indeed, central.
The witnesses were Dr Edward Andriessen, a retired veterinarian, called by the plaintiffs; Dr John Tulloch, a veterinary consultant, called by the defendant; and Professor Jason White of the Department of Clinical and Experimental Pharmacology, University of Adelaide, called by the defendant.
Professor White’s evidence was directed to the question of the likely effect of the consumption of marijuana on the motor skills of a worker. His evidence was that motor skills are impaired by consumption of cannabis, the specific effects including impaired balance, poorer co-ordination and slower reaction time. He said that although the effects are typically not as obvious as those of very high concentrations of alcohol, there was a “significant” effect on performance.[23] In his report dated 22 April 2004,[24] after indicating that he had read the instructions supplied to workers in a document entitled Trim the Carcase, he offers the opinion:
The effect of cannabis is to worsen performance on visual search and vigilance related tasks. That is, people are less able to concentrate for prolonged periods of time and detect the events they have been asked to identify. There are a number of search and vigilance type tasks that form part of these instructions. In particular, workers are asked to identify a range of types of contamination (milk, urine, faeces, etc). This requires continuous visual inspection of carcasses over long periods of time with the aim of identifying such contamination. This kind of performance is likely to be impaired by cannabis.
[23] Report exhibit D19.
[24] D19, par 13.2
He offered the view also that insofar as the meatworkers operate under considerable pressures of time, the slowed reaction which results from cannabis ingestion means that the worker may not be able to respond quickly and would make more errors than a person not intoxicated.
The precision required using very sharp knives involved in trimming carcasses would also be affected, increasing the risk of contamination.
Given the close proximity within which workers carry out their tasks, there would also be an increased risk of injury to themselves or other workers.
The relevant opinions expressed by Dr White were not placed under serious challenge on the appeal. They were accepted by the trial judge.
There were, however, differences between the opinions expressed by Dr Tulloch on the one hand and Dr Andriessen on the other, the resolution of which, so the plaintiffs submitted, was crucial to the case.
In his report dated 21 April 2004,[25] after having been asked to assume that the nature of the impairment likely to result from consumption of marijuana as described by Professor White, Dr Tulloch states:[26]
In my experience impairment of motor, cognitive, visual, search and vigilance and concentration skills of meatworkers can result in unacceptable levels of contamination of meat.
[25] D22.
[26] Par 78.
Later in the same report he states:[27]
Impairment of workers motor skills and cognitive ability can cause contamination of meat with the potential to increase the risk of food poisoning in consumers. Urine and milk may also contain pathogenic micro-organisms and if meat is contaminated by spillage of urine and milk, consumers of the meat products are at risk of food poisoning.
[27] Par 84.
It is clear from part of the cross-examination of Dr Tulloch that the plaintiffs accepted that the MSQA system, even when operated properly, will still allow a percentage of contaminated product to reach the consumer. See, for example, the question put to Dr Tulloch:[28]
A.… I said, “This is no guarantee that all the meat you produce won’t cause food poisoning”, they understand that, we all understand that.
Q.Indeed, and that is a recognition of the fact that the MSQA system, even complied with at its absolute top end, will still result in product that gets through to the consumer which may have either macro or micro contamination on it.
A.Yes.
[28] T2855. And see the concession by Mr Harris QC during oral argument on the hearing of the appeal at (appeal) T73:
“It’s not possible to have a guarantee that a meat product leaving the abattoir is free of contamination”.
Dr Andriessen’s evidence was to the effect that he believed that the meat processed at Conroy’s plant in the period August 2000 to January 2002 “posed little risk to the health of consumers of Conroy’s meat products and that such risk was well within the acceptable tolerances for meat products processed in abattoirs in Australia”.[29]
[29] Report of Dr Andriessen dated 18 August 2004 exhibit P30.
In his oral evidence, Dr Andriessen laid emphasis on the various checks and balances in the MSQA system, which he thought meant in effect that there was no increased risk to the consumer in that any increased contamination occurring at some point in the processing of the carcasses would be likely to be eliminated by checks further down the line.
But in cross-examination[30] the following passage appears:
[30] T2146-T2147.
Q.… You are not disagreeing with the proposition that when somebody comes down with one of these non-life threatening illnesses that you were talking about, one of the ways it could happen, isn’t it, was that some contamination was caused and then missed in the slaughtering process.
A.Correct.
Q.There is nothing outlandish or improbable in that scenario.
A.I accept that.
Q.When that happens it’s fair to say, isn’t it, that the original imperfection in the abattoir, the causing and then the missing of the contamination, increased the risk of the person getting ill. … It caused the person to get ill, didn’t it, on that scenario.
A.Caused the person to get ill, that’s a possibility on that scenario, yes.
Q.As I understand it, you are saying there’s nothing outlandish or improbable about the scenario I put to you. I accept you would never be able to prove it, but there is nothing particularly improbable about that course of events happening, do you agree with that.
A.Correct.
Q.In that situation the original inattention or lack of concentration of the meatworker who caused the contamination was the cause or one of the causes of the person, the end-user, getting sick.
A.It’s possibly one of the causes, yes.
Later in cross-examination Dr Andriessen said:[31]
A.… The degree of risk, I would agree, has increased immediately for his particular operation but it may not be increased after trimming, after cooking, after all the other sorts of things that happen.
Q.If – according to what you now say to this Court – the action of that slaughter floor operator does not increase the risk to the consumer, why bother to have a drug and alcohol policy in an abattoir.
A.A, because it is illegal, and B, for concentration reasons, and to a lesser extent to be affected by any of these drugs or alcohol means that there is a higher risk of contamination. I would agree with that but not necessarily a higher risk to the consumer. (my emphasis)
[31] T2151.
Looking at the manner in which the plaintiffs’ case was presented at the trial and the expert and other evidence offered in support of it, on this aspect of the matter the plaintiffs seem to have contended that because Conroy’s had a good record of producing meat which was consistently within the appropriate hygiene standards imposed by the relevant authorities, it could not be said that there was any increased risk to the consumer arising by reason of any contamination occurring as a result of an inept performance of his work by a worker on the slaughter line affected by marijuana.
But a finding that the end product was consistently within industry standards does not exclude the possibility that there was an increased risk to consumers resulting from bad work practices. That must be so, given that the relevant industry standards recognise that a certain proportion of contaminated carcasses will be produced, even when those standards are met.

Furthermore, in dealing with this aspect of the evidence, the trial judge was critical of the efficacy of the MSQA system – I have already referred to his comments in the context of the unsatisfactory meat transfer notices from Pace – and was also critical of the efficacy of the AQIS audits.
With respect to the AQIS audits, he commented:
[129]It is not necessary to go into details, but the monthly AQIS audits of the Abattoirs often raised matters of concern about the practices of meat workers. These audits were not as effective as they might have been because the meat workers were warned in advance by Conroy’s lower management of when the inspections would occur and took care to ensure AQIS did not find evidence of marijuana smoking or indeed of cigarette smoking or eating or drinking in the change rooms. If an AQIS inspector had found evidence of any such practice, he would have required steps to be taken to ensure that it did not recur. The AQIS auditors looked at Conroy’s MSQA documentation, including the Unsatisfactory Meat Transfer Notices and their responses, and took them into account in the ratings they gave to the Abattoirs. While those ratings were always in the acceptance range they did not mean that there were not any risks to public health which could, and should, have been avoided.
[130]The plaintiffs submitted that as the MSQA system did not pick up and identify contamination resulting from allegedly intoxicated workers it should be inferred that the meat workers were not so intoxicated by marijuana so as to affect the performance of their duties. I do not accept this. It is contrary to the evidence of many witnesses as to the extent of the marijuana smoking and the opinion of Dr White as to its effect on the meat workers. The MSQA system did not address the problem because, as I will find later, Conroys “turned a blind eye to it.
As for the conflict between the opinions expressed by Dr Andriessen and Dr Tulloch, the trial judge’s findings were as follows:[32]
[131]There was conflict between the opinions of Dr Andriessen and Dr Tulloch as to the effectiveness of the MSQA system and the extent of the risk posed by contaminated meat leaving the Abattoirs. Dr Andriessen was not an entirely independent and objective expert in that he had earlier, while employed by AQIS, been involved in AQIS activities and audits at the Abattoirs. He had a vested interest in the success of the MSQA system. While not intending to impeach his expertise or integrity he gave the impression of being overly defensive in espousing the system. I prefer the conclusions of Dr Tulloch where there is a conflict between them. Dr Andriessen talked of the performance of Conroys being in accordance with “industry standards” and the like. However, while it is of some relevance that criterion is not determinative of whether there was a danger to public health or not.
[132]There was a subsidiary issue on how effective the trimming of carcasses was to remove micro-contamination. On this I accept the conclusion of Dr Tulloch that whilst the trimming off of macro-contamination would remove some associated micro-contamination there could still be substantial micro-contamination on the carcasses leaving the Abattoirs. I accept Dr Tulloch’s view that the effect of trimming at the Abattoirs would not replicate the results of trimming in a laboratory. In any event while trimming off of macro-contamination caused by intoxicated meat workers would mean that such contamination could not be a danger to public health, any intoxication of trimmers would mean it was more likely that macro-contamination from any source would be missed which was also a source of danger to public health.
[32] I deal later in these reasons with the refusal by the trial judge to allow certain of the expert witnesses to be led on this issue under the heading “other matters”.
The trial judge concluded that the imputations on this topic were substantially justified.[33]
[33] [125].
I have carefully considered the evidence which led him to that conclusion. I agree with the trial judge that the plaintiffs’ argument that because the output from Conroy’s regularly met the relevant industrial standards, there was no increased danger to public health, even if the meat workers’ performance was adversely affected by ingestion of marijuana, should be rejected. Once it was accepted that there was a risk of an increased number of contaminated carcasses reaching the consumer, notwithstanding compliance with the relevant standards, it was open to conclude that the smoking of marijuana was “putting your (the consumer’s) health in danger”.
I would reach the same conclusion as the trial judge on this topic, and reject the grounds of appeal directed to this issue.
The identification of Andrew Conroy in the second and third promos
This is the subject of ground 9 of the plaintiffs’ notice of appeal. That ground is in the following terms:
9.The learned trial judge erred in holding that the second appellant was not identified in the broadcasts by the respondent on 18, 19 and 20 August 2001.
That ground should be considered in conjunction with two grounds pleaded in the notice of cross-appeal. Those grounds are:
2.1The learned trial judge erred in finding that the first publication (the in-show promo) identified the second plaintiff (Conroy). His Honour should have found that the in-show promo was a publication of and concerning Conroy and that the references to “they” and “them” in the show [sic] promo are identifying only a wide-ranging class of persons, namely all those who ought not to have turned a blind eye to the practice of marijuana smoking, ie those who could have and should have done something to stop the practice.
2.1AThe trial judge erred in holding that the in-show promo was capable of identifying Mr Andrew Conroy as a person who “turned a blind eye”.
When the stage was reached of written submissions at the end of the trial, counsel for the defendant conceded that some viewers would have understood the meatworkers referred to in the in-show promo to be meatworkers employed by Conroy’s by reason of the albeit fleeting depiction of the Port Pirie harbour and skyline in the in-show promo. But as I have already indicated, identification of Andrew Conroy in the in-show promo as well as in the subsequent promos remained a live issue at the trial.
I am of the view that, for other reasons, the claim by Andrew Conroy should have been dismissed. It follows that it is unnecessary to address this ground of appeal and the related grounds of cross-appeal.
“Turning a blind eye”
I have already set out the pleading in the statement of claim relevant to this topic. For convenience, I set out the pleading again:
8.The first promotion [the in-show promo] in its natural and ordinary meaning meant and was understood to mean in relation to the first plaintiff that:
8.1     meat workers at the first plaintiff’s Abattoirs smoke marijuana during work hours and inside the work premises, namely the change room area with the knowledge and approval of the first plaintiff;
8.2     meat workers at the first plaintiff’s Abattoirs carry out their work while affected by illegal drugs with the knowledge and approval of the first plaintiff;
8.3     the first plaintiff through its management was aware that meat workers at the first plaintiff’s abattoirs were consuming illegal drugs, namely marijuana, and did nothing to stop that practice;
8.4     the first plaintiff through its managers placed its employees at risk by refusing to discipline employees who they knew were smoking marijuana in the workplace;
8.5     the first plaintiff was negligent in the conduct of its Abattoirs business in that its management knew that employees were consuming marijuana while at work and did nothing to stop the practice;
8.6     the first plaintiff did not care about the occupational health and safety of its employees in that it knew that its employees could get killed by smoking marijuana whilst at work at the first plaintiff’s Abattoirs but did nothing to stop the practice;
8.7     the first plaintiff by its management acquiesced in a practice which involved the unlawful consumption of marijuana on its premises;
I have already explained that the trial judge was prepared to read 8.1 and 8.2 down, so as to proceed on the basis that they involved imputations of acquiescence rather than approval.
For reasons which I have explained, he was not prepared to find that the imputation conveyed by 8.5 properly arose.
In his reasons,[34] the trial judge observed that in identifying the sting contained in many of the plaintiffs’ imputations, it was necessary to consider what the ordinary viewer would have understood by “what goes on” in the phrase “they know what goes on” and by “it” in the phrase “turning a blind eye to it”.
[34] Par [116].
He correctly noted that the promos did not give any indication as to just when it was that the pictures in the change rooms were taken. He found:
[116]… As the verbs in the dialogue are in the present tense the ordinary viewer would imply that the pictures were very recent and represented a practice in which meat workers were continuing to engage right up until the time of the broadcast of the promos.
I agree with that finding, and the trial judge’s further observation in that paragraph:
[116]… Indeed whether the plaintiffs knew of, and turned a blind eye to, the actual instances of meat workers smoking marijuana depicted in the promos is not the issue on justification. There is no evidence that they knew of the specific instances of marijuana smoking depicted in the promos. The issue is whether a substantial general practice, of which what was shown in the promos were but instances, was known by the plaintiffs and what was their response to it. The whole tenor of the promos would convey to the ordinary viewer that the extent of the practice was of such a magnitude as to create major risks and dangers, and thus it was substantial.
The trial judge dealt with the matter on the basis that the ordinary viewer would have understood that a substantial practice of marijuana smoking had been going on “for some time, but they would not have understood it to have been necessarily going on for years, rather than for months”.[35]
[35] Par [116], footnote 32.
The plaintiffs argued on appeal that the “clear charge” against the plaintiffs was that they had always turned a blind eye, that is, ever since Conroy’s acquired the Port Pirie abattoir in the early 1990s.
In their written submissions the plaintiffs contend:[36]
… the defamatory charge being of a general nature, it was applicable to the entire period of the operation of the Abattoir by Conroy’s and the trial judge was wrong to impose a temporal restriction on the defamatory string of this part of the in-show promo when none was suggested or indicated in the broadcast itself.
[36] Par 128.
I would reject the plaintiffs’ submission in that respect. In my view, the trial judge was correct in limiting the scope of this part of the charge against the plaintiffs to a matter of “many months” as at the end of July 2001, or as the defendant contended on the hearing of the appeal “in the recent past”.
However, I accept that the imputation implies that the practice was still going on at the time of the broadcast of the promos.
The trial judge correctly found that merely for the defendant to prove that meatworkers were smoking marijuana would not meet the sting of many of the imputations.[37] He correctly held that the defendant had to show that such smoking resulted in intoxication “which would significantly impair the workers in performing their duties”.
[37] Par [118].
As to that aspect of the matter, the trial judge held that the evidence of Professor White was sufficient to justify the conclusion:
[123]… the intoxication of meat workers significantly increased the risk of injury or death to meat workers from accidents and adversely affected hygiene standards and the detection of contamination on carcasses. The rapid pace at which the meat workers were required to work because of the speed of the chain also heightened the risk of these impairments from cannabis intoxication. While meat workers who had used cannabis over many years might not be so greatly affected by this as others, I accept Dr White’s opinion, which was to the effect that it was not likely to make any great difference.
[124]I find that the practice of meat workers smoking marijuana at the Abattoirs meant that the meat workers concerned were risking the safety of their mates and it meant that it was only a matter of time before some meat worker was killed or injured.
Those observations followed the trial judge’s finding that Professor White was an “impressive and convincing witness”. He was unshaken in cross-examination.[38]
[38] Par [119].
The question remains as to whether the trial judge made correct findings on the issue of justification of the words “Well, of course, they know what goes on. It’s a case of them turning a blind eye to it …” and the implications he held were raised from those words.
In the first place, the evidence as to the regular smoking of marijuana in the change rooms at Conroy’s by meatworkers for many years prior to August 2001 was overwhelming. Consistently with the evidence, the trial judge found:
[117]A number of meat workers gave evidence that for many years prior to August 2001 various meat workers had regularly smoked marijuana in the change rooms at Conroy’s before work and during their breaks. The extent of the practice fluctuated, but up until August 2001 there were always a significant number of meat workers smoking marijuana in the change rooms every working day. The witnesses varied in their generalisations about the number of workers who smoked marijuana. A conservative finding is that at least a quarter to a third of the meat workers regularly smoked marijuana in the change rooms. … I find it proved that as at about the end of July 2001 there was and had been for many months, a substantial general practice of many meat workers at Conroy’s smoking marijuana in the change rooms before work and during their breaks.
In my view, that finding was substantially justified. There was no serious attack upon it during the hearing of the appeal.
Rather, the appeal focused on the question whether the defence of justification had been made out; the associated question as to whether or not the trial judge was right in his finding that from the beginning of August the situation relevantly changed; and the extent of the knowledge of Andrew Conroy.
In their written submissions the plaintiffs correctly summarised the issues to be addressed in the following way:
131.The trial judge, it is submitted correctly, identified two aspects of the defence of justification to the “turning a blind eye” imputations. Those two aspects were as follows:-
131.1 that the plaintiffs knew that there was a substantial and regular practice of a number of meatworkers who smoked marijuana in the change rooms during work breaks and became intoxicated by it;
131.2 turning a blind eye to that practice of which they had knowledge.
As to the question of “knowledge”, the trial judge focused on the knowledge of Andrew Conroy in his capacity as joint managing director of Conroy’s with primary responsibility for the abattoir’s business, and the knowledge of Vaughan Sampson, the quality assurance officer.
He was right to do so as their knowledge must unquestionably be taken to be the knowledge of Conroy’s.
The trial found on the balance of probabilities[39] that both Andrew Conroy and Vaughan Sampson, at least from January 2001 to 17 August 2001, knew that there was a “substantial and regular practice of a number of meatworkers to smoke marijuana in the change rooms during their work breaks and become intoxicated by it”.
[39] [137] and [138].
As for the knowledge of Andrew Conroy, in the latter’s own evidence, the most he was prepared to admit was that he was aware of some vague rumours about marijuana smoking, but he denied any knowledge of it. He denied specific knowledge of any marijuana or cigarette smoking by meatworkers in the change rooms.
His denials in that respect were rejected by the trial judge. He said that in rejecting them, he took into account particularly the evidence of three witnesses, Gerrit Westerlaken, Matthew Ryder and Leigh Warwick.
Westerlaken first went to work at Conroy’s in 1994. He worked in the “runner” room, which is a place at which part of the inside of the sheep known as runners were separated from the rest of the offal. From the start he noticed regular smoking of marijuana in a locker room by the workers. He left Conroy’s employment in March 2001[40] due to problems with his back and the fact that Conroy’s were not prepared to give him lighter work.
[40] T3702.
The critical part of his evidence for present purposes was that he accidentally met Andrew Conroy, at a time which he estimated as two to three weeks after he had left Conroy’s on 18 March 2001, at a newsagents in Port Pirie. Andrew Conroy seemed surprised to learn that Westerlaken had left. Westerlaken explained that part of the reason was because he was unable to secure a change of duties, and he went on to say that there was also marijuana smoking, as to which he said:
… there are several people he should get rid of if he wants to keep that place running properly and also get rid of the marijuana smoking episode.[41]
[41] T3705.
He said that Andrew Conroy responded to the latter information by saying,[42] “Is that still going on? … I am surprised”, to which Westerlaken responded, “It is, believe me”, in response to which Conroy said he would look into it.
[42] T3706.
He says that he saw Andrew Conroy at the same place about a fortnight later, and that Conroy volunteered the comment that he had “checked out” the problem with respect to marijuana smoking and that it had been “corrected” or dealt with.
The trial judge held that Andrew Conroy largely agreed with Westerlaken’s version of the content of the conversations, but that there was a major dispute as to when they took place.
I have explained what Westerlaken had to say about that. However, the evidence of Andrew Conroy was that it occurred after the Channel 7 promos had been broadcast, which would place the conversations in late August or September 2001.
The trial judge preferred the evidence of Westerlaken as to when the conversations occurred, and gave reasons why he did so.[43] He described Westerlaken[44] as an unsophisticated but apparently honest witness, with no apparent motive to give false evidence, and observed that he was unshaken in cross-examination.
[43] [67].
[44] [68].
Matthew Ryder started at Conroy’s in 1994 and was an employee for some nine years or so. At the relevant time he was a slaughterman.[45] He smoked marijuana at work and he had seen many others doing so as well. It occurred at every break on a working day in the change or locker room. He described the state of the rooms when smoking was going on as almost always a “haze”.
[45] T2268-T2273.
He saw Andrew Conroy in the locker room two or three times a week, usually on his way to the toilet.[46] Almost always there was cigarette and marijuana smoke in the room when he passed through. He gave evidence as to what he described as a memorable occasion in the following terms:[47]
[46] T2274.
[47] T2277-T2278.
Q.You said this was a memorable circumstance, what makes it memorable, what is it that sticks out in your memory.
A.Well, I’d just finished blowing out the smoke and Mr Conroy walked through it, and like I say, I thought my job was gone, and like you would, and he just kept walking kind of thing, yes.
Q.Take it step by step. You blew out the smoke. What sort of smoke was it.
A.It was marijuana smoke. I was actually turned to my left, like facing into my locker and I had a drag while I was in the locker and then actually blew it out into the walkway but towards the toilet way, and as I blew it out he’s come from my right hand side and walked through this cloud of smoke.
Q.And what was his reaction, if anything, as he walked through the smoke.
A.Wasn’t that much reaction, like took a quick glimpse to his left, like where we were sitting and just walked into the toilet, kind of thing.
Q.And how far was Mr Conroy from you when he walked past.
A.When he walked down the middle, that walkway, it’s only two metres, only a metre away, and he –
Q.Do you recall whether anyone else was smoking either cigarettes or marijuana in the change room on that occasion.
A.There would have been, yes.
Q.The smoke that you blew out, were you able to see that smoke.
A.Definitely.
Q.After Mr Conroy walked past and you said he turned to the left, what did he do then, look to the left.
A.He just kept walking into the toilet.
…
Q.Did he come back out.
A.Yes, he come back out into the locker room, yes.
Q.Were you still in the locker room at that stage.
A.Yes, I think I was, yes.
Q.Did he say anything to you.
A.No, not at all, nothing.

The trial judge dealt with the conflict between the opinions expressed by Dr Andriessen and Dr Tulloch in two paragraphs in his reasons which I have already set out.[95]
[95] Par [131] and [132] quoted at par [124]-[136] of these reasons.
I am not able to detect any error in the approach taken by the trial judge in those paragraphs or in other parts of his judgment where he dealt with the expert evidence.
Looking broadly at the matter, it seems to me that the trial judge approached the question of the credit of the various witnesses in a manner which was perfectly consistent with authority. Having read the contentious evidence myself, I would not come to a different conclusion on that aspect of the matter.
Adequacy of the trial judge’s reasons
The plaintiffs complain of the adequacy of the trial judge’s reasons for judgment in a number of grounds of appeal. They are grounds 3.16, 5.5.5, 5.5.6, 5.8, 5.9, 6.4 and 6.5.
In several of those grounds, the complaint is that the trial judge erred in law in “failing to examine all of the material relevant to the issue” which was said to arise by reason of a failure to refer to all of the relevant evidence on the particular issue.[96]
[96] See Grounds 5.8, 6.4 and 6.5.
It would be tedious and unnecessary to go through each of the complaints in detail. In my view, they represent a misunderstanding as to the nature and extent of the obligation cast upon a trial judge to give reasons in support of the judgment.
I will first refer to some of the authorities which define the general principle. There is much authority on the point.
The development of case law on the topic has intensified in recent years, no doubt due to the increasing tendency of counsel to take trial judges to task over the adequacy of the published reasons. I am not at all sure that this development has been beneficial. It has resulted in longer judgments being delivered, and more and more nit-picking on appeal.
Of the long line of Australian authority on the topic Pettitt v Dunkley[97] is often regarded as the convenient starting point.
[97] (1971) 1 NSWLR 376.
In that case, the Court of Appeal of New South Wales held that it was an error of law for the trial judge who had heard an action for damages for personal injury arising from a road accident to fail to give reasons for his decision. The Court of Appeal clearly based its decision on the view that the failure to give reasons made it impossible for the unsuccessful plaintiff to exercise her right of appeal, as absent reasons, it was not possible to determine whether the verdict was erroneous.
In Watson v Anderson,[98] the Full Court (Bray CJ, Mitchell and Walters JJ) held that the judge in a Local Court action who refused an application to have a judgment in default of appearance set aside, was under no obligation to give reasons for the refusal. In the course of his reasons for judgment in that case, after referring to Pettitt v Dunkley, Bray CJ said:[99]
I respectfully agree with that decision, but I cannot regard it as laying down a universal proposition that every judge must give reasons for every decision he makes and that every such decision will automatically be set aside on appeal if he does not. The learned Judges of the Court of Appeal did not purport to do this. They were careful to guard their pronouncements and to express themselves in appropriately limited terms. ….
Of course, if there is a trial on oral evidence and the facts are in dispute, it is impossible for the appellate court to deal with the judge’s decision if it does not know what facts he has found. The real criterion, it seems to me, must be whether the failure to give reasons frustrates the performance of its duty by the appellate court. This does not happen in every case where no reasons are given. (my emphasis)
[98] (1976) 13 SASR 329.
[99] Ibi 331.
In Mountford v Magistrates Court of South Australia and Anor,[100] a judgment of the Full Court, I said:
[100] [2006] SASC 184, 27 June 2006 (unreported).
[95]The absence of reasons does not necessarily impede the ability of a court of appeal to discharge its role. For example, the absence of reasons would not matter in a case in which the exercise of the appellate jurisdiction involves a reconsideration of the decision under appeal de novo: see Perkins v County Court of Victoria and Ors per Buchanan JA:[101]
There is no general principle that a court’s failure to give reasons is an error of law which vitiates the court’s decision. That is not to deny the importance of the giving of reasons in the process of judicial decision making. Want of reasons may mount to an error of law where the absence of reasons would frustrate a right of appeal, although even where a right of appeal exists, the nature of the decision and the circumstances of the case may require no more than a brief ruling, and where an appeal is de novo, an absence of reasons for the decision below can have no effect. (my emphasis)
[96]Buchanan JA went on to say, in a passage with which I respectfully agree:[102]
Moreover, the provision of reasons for a decision as affecting a person’s rights and liabilities is usually desirable, serving objectives such as candour in decision making, the accountability of decision makers, the reconciliation of parties to the results of litigation and promoting the drawing of conclusions which are rational and soundly based on legal principles. Nevertheless the general desirability of reasons and in certain cases their necessity in my view are not sufficient considerations to found an all-embracing principle that failure to state reasons or adequate reasons for a judicial decision constitutes an error of law vitiating the decision. [References to authorities omitted]
[97]The conclusion I reach on this issue is that one should only speak in terms of an error of law where there is a right of appeal which could be frustrated by the absence of reasons.
[98]To go any further raises the question of the approach to be taken to the many interlocutory orders made by Masters every day; directions hearings by judges in criminal and civil matters; rulings made during the course of a trial on admission of evidence and the like; rulings made on submissions of no case to answer; rulings made on objections to subpoenas; orders disposing of applications for leave to appeal; and the host of other orders and rulings which fall short of orders finally disposing of matters.
[99]An order made during the course of a criminal trial as to the admission of evidence may well be the sole focus of an appeal. I have never felt any embarrassment when sitting on an appeal in such matters by reason of the fact that such a ruling may be unsupported by reasons.
[100]Orders as to costs which may follow argument and may involve substantial sums of money, are commonly made without reasons.[103]
[101] (2000) 2 VR 246 per Buchanan JA at 270.
[102] Ibid 271.
[103] In Penfold v Penfold (1981) 144 CLR 311 at 315-316 the High Court held that there is no obligation upon a judge to give reasons for the making of an order as to costs.
In Mountford I referred to the decision of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd[104] where McHugh JA observed:
[101]In Soulemezis v Dudley (Holdings) Pty Ltd (supra), McHugh JA observed:[105]
… neither the need nor the appearance of justice requires that reasons be given for every decision made by a judicial tribunal: R v Awatere[106] and Public Service Board of New South Wales v Osmond.[107] In the course of an action, a judge may make many decisions concerning interlocutory matters which cannot reasonably be held to require reasons: Capital and Suburban Properties Ltd v Swycher.[108] Justice is a multi-faceted concept. In determining whether justice was done and seen to be done other interests and values, beside the giving of reasons, have to be considered. The limited nature of judicial resources and the cost to litigants and the general public in requiring reasons must also be weighed. For example, many questions concerning the admissibility of evidence may require nothing more than a ruling: in New South Wales common law judges have long held that they are not obliged to hear argument on the admissibility of every question of evidence let alone give reasons. It all depends on the importance of the point involved and its likely effect on the outcome of the case.
[104] (1987) 10 NSWLR 247 at 279.
[105] Ibid 279.
[106] [1982] 1 NZLR 644 at 649.
[107] (1986) 159 CLR 656 at 667.
[108] [1976] Ch 319 at 325, 326.
In Mountford, Doyle CJ said:
[52]… I have had the advantage of considering the reasons of Perry J and of White J on the point just dealt with [the adequacy of the magistrate’s reasons in that case]. I agree in general terms with their observations. However, the point was not argued before us, and I refrain from expressing a definite view on the point.
Of course, decisions on the need to give reasons in situations other than at the conclusion of a trial resulting in final judgment are not directly relevant to the question at issue on this appeal. But I have taken the trouble to refer to some authority on the point in order to make it clear that there is no universality in the principle that reasons must be given in the case of every judicial decision, and that the source of the obligation to give reasons in the case of a judgment after a civil trial is that in most cases an appeal court would be unable to discharge its function without adequate reasons.
I accept that some judicial authority supports the view that the requirement to give reasons is supportable on a broader basis, as an “incident of the judicial process”.[109] I would regard the law on that topic as unsettled, and it is unnecessary to pursue that aspect of the matter further.
[109] See, for example, Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 per Mahoney J at 386. See also the dictum of Kirby J in Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Palm (2003) 216 CLR 212 at 242 [105], authorities which are referred to by White J in Mountford.
To deal more specifically with the obligation cast upon a trial judge in the position of the judge in this case, who had presided over a lengthy trial which gave rise to a number of factual issues and differences of expert opinion, Mr Harris QC referred to the following dictum of Nettle J in the Court of Appeal of Victoria in Hunter v Transport Accident Commission:[110]
…while extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those findings are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.
[110] (2005) 43 MVR 130 at 136-137.
Within that dictum I think that the important instruction for a trial judge is to avoid the situation referred to, where the reader may be left “to wonder which of a number of possible routes has been taken to the conclusion expressed”.
Hunter and the general principles referred to in that case were the subject of comment by the Full Court of the Federal Court of Australia in Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd[111] (Heerey and Weinberg JJ):
[111] [2006] FCAFC 117, 14 July 2006 (unreported).
[44]… [as to] the obligations of the trial judge to give adequate reasons, on the appeal Kovan relied strongly on what was said by Nettle JA (with whom Batt and Vincent JJA agreed) in Hunter v Transport Accident Commission.[112] While noting that the extent of the reasons will depend on the circumstances of the case, his Honour said that the reasons should deal with the “substantial” points which have been raised, include findings on “material” questions of fact and provide an “intelligible” explanation of the reasoning from evidence to findings to ultimate conclusion. Reference to the evidence should not be limited to the evidence that has been accepted and acted upon, but “ordinarily” should deal with the “substantial” points made in evidence which has been rejected and explain why it has been rejected. The judge must deal with evidence which is “relevant and cogent”, arguments which are “substantial” and issues which are “significant”.
[45]No matter how prescriptive the principles laid down, they inevitably involve disclaimers as to any universal applicability. Moreover, the passage from Hunter would give an unbalanced view if it were not read in conjunction with the firm warnings of courts of high authority against over-lengthy judgments. These are noted by the Full Court in Expectation at [83]. Of the cases there referred to particular note should be taken of what was said by the New South Wales Court of Appeal in Digi-Tech (Australia) Ltd v Brand[113] and the following passage from the joint judgment of Gleeson CJ, McHugh and Gummow JJ in Whisprun Pty Ltd v Dixon:[114]
… it should not be accepted that Newman J failed, at least in a general way, to consider the matters to which the Court of Appeal referred. The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
[46]As the Full Court said in Expectation (at [71]), in the normal case statements by a trial judge of a general assertive nature can be accepted as encompassing a detailed consideration of the evidence. As their Honours immediately go on to say, such statements should be treated with some reserve where there has been “significant” delay between trial and judgment. After such a delay,
… a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision.
[47]…..
[48]As to the suggested obligation on the trial judge to explain why evidence or argument of the losing party has been rejected, we would refer to what was said by Schiemann LJ in Customs and Excise Commissioners v A,[115] in a passage cited with approval in Digi-Tech at [285]:
… judges should bear in mind that the primary function of a first instance judgment is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. The longer a judgment is and the more issues with which it deals the greater the likelihood that: (i) the losing party, the Court of Appeal and any future readers of the judgment will not be able to identify the crucial matters which swayed the judge; (ii) the judgment will contain something with which the unsuccessful party can legitimately take issue and attempt to launch an appeal; (iii) citation of the judgment in future cases will lengthen the hearing of those future cases because time will be taken sorting out the precise status of the judicial observation in question; and (iv) reading the judgment will occupy a considerable amount of the time of legal advisers to other parties in future cases who again will have to sort out the status of the judicial observation in question. All this adds to the cost of obtaining legal advice.
Often it is not possible to reconcile neatly all evidence and arguments. Sometimes evidence or arguments of the losing party may be valid in themselves; it is just that there seem to the trial judge to be other and more persuasive items of evidence and points of argument the other way. If the trial judge does not mention such evidence or arguments of the losing party an appellate court may take a different view. It may reverse the decision below because it finds the appellant’s evidence or arguments persuasive. But that will be because the appeal court took a different view of the facts or law from that of the trial judge, not because the trial judge made a legal error in the way his or her reasons were expressed – provided the minimum requirements identified by Schiemann J are satisfied.
[112] [2005] VSCA 1 at [21].
[113] (2004) 62 IPR 184 at [287]-[290].
[114] (2003) 200 ALR 447 at [62].
[115] [2003] 2 All ER 736 at [82]-[83].
I agree entirely with what Heerey and Weinberg JJ say in that case on the topic of adequacy of reasons. That is with the qualification that I have with respect to them and as to the authors of comments in similar vein in some other cases that in some way the period between trial and judgment has an impact on what should be regarded as adequate reasons, and that more lengthy reasons might be necessary where the delay is long.
Trial judges invariably keep contemporaneous notes. All courts with which I am familiar are equipped with bench books. Many judges dictate notes day-by-day, particularly as to their impression of the witnesses.
I am unable to see that there is any point to be made about the lead time up to the delivery of judgment vis-a-vis its length. I make a similar observation as to statements in some of the cases with respect to the willingness of courts of appeal to interfere with findings as to credibility where there has been a lengthy delay in delivering judgment.
Although the matter was faintly argued by Mr Harris QC, in this case there could not, in any event, be the slightest foundation for any concern in that respect. The 58 day trial concluded on 23 June 2005, and the trial judge gave judgment less than a month later, namely on 20 July 2005. That was a remarkably short time, even allowing for the fact that there was an interruption in the hearing for several months.
So far as general principles are concerned, having regard to the authorities to which I have made reference, in the context of reasons given to support a final judgment following a trial:
·In his or her reasons, the trial judge does not have to deal with every item of evidence, every issue raised and every argument.
·The judge should make findings of fact which are sufficient to support the conclusions which are ultimately reached. Where those findings depend upon demeanour of witnesses, the judge should indicate this plainly to be so, but at the same time he or she should strive to buttress any such findings by reference to objective features of the evidence or objective reasoning.
·A trial judge is not obliged to trawl through the evidence and arguments advanced by the losing party and explain why it has been rejected.
·However, if there is a body of evidence, or even the evidence of a single witness, advanced by a party on an important issue and a different body of evidence or different evidence given by a single witness by an opposing party, the trial judge should explain why one has been preferred over the other.
·At the end of the day, the most important consideration is that the reader should not be left to speculate as to which of a number of possible “routes have been taken to the conclusion expressed”.[116]
[116] Hunter v Transport Accident Commission and Anor (supra) at 142 [35].

In applying those principles to the trial judge’s reasons in this case, I am unable to accept that any of the criticisms advanced in the grounds of appeal have been made out.
The trial judge made it perfectly plain what evidence he was accepting and what evidence he was not accepting. He made it equally plain by what process of reasoning he reached the conclusion which he did. He gave adequate reasons for his findings as to credit and as to why he rejected or accepted the evidence of various witnesses on important issues.
Several of the grounds of appeal with respect to the adequacy of the reasons of the trial judge incorporate a submission which is summarised in the written submissions of the plaintiffs in the following terms:
[23]For the reasons which are set out below the plaintiffs submit that the trial judge adopted an approach which involved resolving the fewest issues of fact and therefore he did not determine substantial and significant but more complicated questions of fact and in particular those associated with the operation of effectiveness of the Meat Safety Quality Assurance (MSQA) system in place at the Conroys abattoirs.
In my view, there is nothing in that complaint. Depending on the circumstances of the particular case, a trial judge may find that the case may be decided satisfactorily on a short ground. In such circumstances, the trial judge is not obliged to go through the evidentiary material associated with other means of reaching the same conclusion and dealing with whatever arguments may be associated with them.
In any event, I do not agree that the trial judge’s approach answers the description suggested by the plaintiffs. His analysis of the operation and effectiveness of the MSQA system was adequate in general terms, not only in terms of the issues upon which the conclusion he reached ultimately turned.
The trial judge’s reasons occupy some 54 pages and 165 paragraphs. The length of reasons does not, of course, indicate that the reasons are adequate.
However, standing back from the matter, it seems to me that the trial judge dealt with all of the relevant issues in a refreshingly concise manner.
There is no particular virtue in lengthy reasons or in minute examination of evidentiary and other material not germane to the conclusions ultimately reached.
After judgment had been reserved, the solicitors for the plaintiffs forwarded to the court copies of two judgments of the New South Wales Court of Appeal, namely Whalan v Kogarah Municipal Council[117] and The Nominal Defendant v Kostic.[118] There is nothing in those judgments which would cause me to reconsider the views which I have expressed on this topic. Those cases dealt with quite different situations, which were, apparently, symptomatic of a local problem in that State with respect to District Court reasons for judgment.
[117] [2007] NSWCA 5.
[118] [2007] NSWCA 14.
Conclusion
It is unfortunate that these reasons given on appeal are so long. A contributing cause is that the plaintiffs chose to argue a number of points of little substance.
I have not set out each and every ground of appeal and cross-appeal, but these reasons deal with the issues raised in them.
I would dismiss the appeal and allow the cross-appeal.
On the cross-appeal, I would:
(a)quash the judgment in favour of the plaintiff Andrew Conroy and substitute for it an order dismissing his claim; and
(b)quash the order for costs made by the trial judge and direct that an order be substituted in terms to be settled by this Court after hearing further argument on the matter.
I would hear the parties as to the costs of the appeal.
NYLAND J: I have had the benefit of reading the draft reasons of both Perry J and Sulan J. I agree that the appeal should be dismissed and the cross-appeal allowed for the reasons expressed by them. I agree with the orders proposed by Perry J on the cross-appeal.
SULAN J: I would dismiss the appeal and allow the cross-appeal.I agree with the orders proposed by Perry J and I agree with his reasons, subject to the following observations.
I agree with Perry J that it is not necessary for the outcome of this appeal to determine the issue of malice. Nevertheless, for the following reasons, I would conclude that the appellant failed to establish malice.
It is necessary to recount a number of the background facts. The trial Judge made the following findings. Soon after 31 July 2001, Rohan Wenn had spoken to Ken Burns who had, on 12 July, informed Channel 7 about meatworkers openly smoking cannabis in the change rooms of the abattoirs.
In early August 2001, Vaughn Sampson instructed Tom Northcott, a safety officer, to increase his surveillance in the change rooms to detect workers who were breaching the rules. On 3 August 2001, Wayne Farrugia became the production supervisor for Conroy’s.
Between 6 and 9 August, Tom Northcott observed and reported six employees whom he detected smoking cigarettes. Each was issued with a warning.
On 9 August, Northcott detected John Sarantou smoking marijuana in the change rooms. This was reported to Vaughn Sampson and Sarantou was sent home. Sarantou was employed by Rexco, which provided employees to Conroy’s. The removal of Sarantou from the premises amounted to a de facto dismissal of him.
On 15 August 2001, Wenn went to Port Pirie. At some time that day, Wenn approached Andrew Conroy who refused to give an on-camera interview. Wenn was given a tour of the change rooms and supplied with copies of Conroy’s Drug and Alcohol Policy, and also a warning letter given to an employee, Mick Willis.
On Thursday, 16 August, Wenn drafted a script for a program on the use of drugs in abattoirs, which he discussed with Graham Archer, the producer. The script for the proposed program evolved during the course of the day. Graham Archer wrote the scripts for the three promotional segments to be used for the story.
On 17 August another employee of Rexco was detected smoking marijuana in the change rooms, and he was stood down. Rexco was informed that he was not to come back to Conroy’s.
On that day, Wenn had contacted Andrew Conroy, and for the first time had told him that Channel 7 had film of meatworkers smoking dope at the abattoirs The film also showed a supervisor being aware of what was occurring.
The first promo was broadcast that night at 7 p.m.
The trial Judge dealt with the evidence of Rohan Wenn, who told the Court that he spoke with Andrew Conroy and Vaughn Sampson on 15 August 2001. Wenn said that he told them that he had reason to believe that there was widespread marijuana use at the plant. He also said that he told them that he believed management knew what was going on, and that Wayne Farrugia had been filmed talking to a worker whilst he was smoking. Andrew Conroy and Vaughn Sampson both said that Wenn had only told them that he was interested in work safety issues, and there had been no mention of drugs or a secret film when they had spoken that morning.
The trial Judge accepted the version of a conversation given by Andrew Conroy and Vaughn Sampson and concluded that there was no detailed conversation in which Wenn made the allegations about marijuana smoking and about his belief that it was known to management.
The trial Judge found that Wenn, in approaching Andrew Conroy and merely telling him that he was investigating a matter relating to occupational health and safety, was hoping to be able to get an interview on camera with Conroy or Vaughn Sampson. He could then film their unprepared responses to the allegations of drug taking and to the allegations that Wayne Farrugia had knowledge of it.
The trial Judge found that it was an attempted ambush to get on film unprepared, ill considered and, possibly, emotive responses from Conroy’s to his allegations. The trial Judge found that Wenn well understood that any defences to subsequent defamation actions of fair comment and qualified privilege required that Wenn should have given Conroy’s a reasonable opportunity to respond to his allegations. He concluded that Wenn’s evidence-in-chief about having put allegations to Conroy’s on 15 August was a concoction to which he had to resort to give a basis for defences to the plaintiff’s claim and to comply with journalistic ethics.
The trial Judge also rejected Wenn’s evidence that, on the morning of 15 August, he was given the copies of the Drug and Alcohol Policy and the letter of warning. That finding seems to be in conflict with the trial Judge’s reasons at [36] of his judgment that, on 15 August, Wenn was given a tour of the change room and was supplied with copies of Conroy’s Drug and Alcohol Policy and a warning letter given to an employee, Mick Willis.
The trial Judge concluded that Wenn was not a truthful witness, and that there was a substantial doubt on whether he had told the truth about other matters upon which there was no corroborative evidence.
The trial Judge considered evidence given by other witnesses about conversations that they had had with Andrew Conroy. Andrew Conroy’s evidence was that he had no knowledge at the relevant times of any marijuana smoking in the change rooms. He conceded that he was aware of vague rumours about marijuana smoking at the abattoirs. The trial Judge considered the evidence of Mr Gerrat Westerlaken, who said that he had a specific conversation with Andrew Conroy about marijuana smoking at the abattoir. The trial Judge found that that conversation with Andrew Conroy took place in about April 2001. It was Conroy’s evidence that the conversation took place after the Channel 7 promos had been broadcast. The trial Judge accepted Westerlaken’s evidence.
The trial Judge also accepted the evidence of Matthew Ryder that early in 2001 Andrew Conroy walked through the change rooms when marijuana smoking was taking place and had walked through a cloud of marijuana smoke. The trial Judge concluded that, other than on the topic of his knowledge of the meatworkers smoking marijuana at the abattoirs, and subject to any other express findings to the contrary, he accepted the evidence of Andrew Conroy.
In considering whether the respondents were actuated by malice, the trial Judge made the following findings:
I accept this evidence and find that on 15 August Andrew Conroy told Rohan Wenn of the defacto dismissal of Sarantou. Wenn, in retrospect quite justifiably, did not believe Andrew Conroy’s other assertion that he did not know of drug use in the change rooms. Thus he may have also not believed this statement about the dismissal of Sarantou. However, it was an objectively verifiable fact and presumably it could have been easily checked by him with any of Burns, other meat workers, Sarantou and/or Rexco. Wenn acted at his peril in deliberately ignoring this assertion. His attitude was he was not going to allow an inconsistent assertion to stand in the way of sensationalising the story by publishing the “grab” from Burns “It’s a case of them turning a blind eye to it” in the same way as he ignored Andrew Conroy’s denial of knowing about the marijuana smoking by publishing “They know what goes on”. Wenn could not honestly have believed that all of what was said about turning a blind eye was true.
Gaudron, McHugh and Gummow JJ in the High Court said in Roberts v Bass:
Improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is provide, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant’s ill-will, prejudice, bias, recklessness, lack of belief or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive. … (Footnotes omitted)
From the fact that Wenn knew of the falsity of Conroy’s turning a blind eye to the practice of marijuana smoking, or was at least reckless about its truth, I infer that he was actuated by an improper motive and malice. “It’s a case of them turning a blind eye to it” was put forward as part of the first promo. There was no legal duty on him or the defendant to make this communication to the viewers. His malice actuated the publication, or at least of this part of it.[119]
[119] Conroy’s Pt Pirie Abattoirs v Channel Seven Adelaide [2005] SADC 85, 51.
The respondent submits that the trial Judge’s conclusion that Wenn could not honestly have believed that all of what was said about turning a blind eye was true, was flawed for the following reasons: First, that Wenn was fully justified in disbelieving Andrew Conroy’s assertion that he did not know of the practice of marijuana smoking and, in the circumstances, if Wenn disbelieved Andrew Conroy’s further assertion about the dismissal of Sarantou, then his failure to make further inquiries amounted to, at the highest, negligence or carelessness. Secondly, the respondent submits that, in order to infer recklessness from Wenn’s failure to inquire, it is necessary to impute to Wenn a knowledge of falsity amounting to wilful blindness. The respondent submits that mere recklessness, short of wilful blindness, does not constitute malice. The respondent submits that the trial Judge made an impermissible leap from negligence to malice, and ignored the principle that malice is not to be lightly inferred. In order to find malice, the Court is required to make a positive finding that the defendant was actuated by some improper motive.
It is further submitted that in finding that Wenn could not honestly have believed that all of what was said about turning a blind eye was true, the trial Judge appeared to conclude that, because Wenn knew of the dismissal of Sarantou, he was wilfully blind, and he must not have believed that the company was turning a blind eye. The respondent contends that even if Wenn knew and believed that a worker had been dismissed, that knowledge provides no basis for inferring that Wenn did not believe that the company was turning a blind eye. The mere fact that the company had dismissed a worker, and that Wenn knew it, does not exclude a belief on Wenn’s part that the company was turning a blind eye to the problem. The respondent argues that, having regard to what Wenn had seen on the film taken by Burns, which includes vision of a supervisor standing by while workers smoked marijuana, there was no basis for the trial Judge to equate Wenn’s knowledge of the dismissal or his reckless indifference to being told of the dismissal with a belief on his part that the company was not turning a blind eye.
It is further contended that, as Wenn was not involved in the compilation of the promo, the plaintiffs have not established that Wenn’s state of mind or malice actuated the publication.
The appellant submits, having concluded that Wenn was a liar, it was open to the trial Judge to infer that the dominant motive in making the broadcast by Wenn and the defendant was an improper one, namely, to injure the appellant. The appellant submits that a finding of express malice is always a matter of inference, having regard to what the defendant said or did before, after and at the time of the publication of which there is complaint (see Horrocks v Lowe[120]).
[120] (1975) AC 135 at 149.
I consider there is force in the respondent’s submissions. In my view, the conclusion of the trial Judge that Wenn knew of the falsity of Conroy’s turning a blind eye to the practice of marijuana smoking was not open on the evidence. There was a great deal of evidence to support a conclusion that Conroy’s were turning a blind eye to the practice of marijuana smoking.
The conclusion that Wenn was at least reckless about the truth of the statement is, in my view, not supported by the evidence. At the most, I consider that Wenn was careless in not following up the statement that Sarantou had been dismissed. Nevertheless, even if he had done so, I agree with the submissions of counsel for the respondent that that would not necessarily indicate that the company and Conroy were not turning a blind eye to what had been regular occasions of marijuana smoking at the abattoirs. Even if the trial Judge’s finding of recklessness was open, that alone is not sufficient to establish malice, as the recklessness must have actuated the publication. I consider that that has not been established, having regard to the fact that it was Archer who prepared the promo and there being no evidence that Archer was aware of the conversation between Conroy and Wenn.
The trial Judge was in error in concluding that the respondent was actuated by malice.

Sound	Vision
Leigh McCluskey: “On Monday night, stoned at work. Our meat workers doing drugs on the job, risking the safety of their mates and putting your health in danger and all caught on camera.”	Head shot of Leigh McCluskey.
Rohan Wenn: “In your experience have you ever seen anything like this”. Tony Hehir: “No, not as blatant as this”.	Wenn talking to Hehir in front of a television set which is showing the hidden camera film of Conroy’s change rooms.
Disguised voice: “And then they put marijuana in their pipes and then smoked their pipes before they go up on the floor.”	Meat workers in the change rooms smoking pipes.
Disguised voice: “It is only a matter of time before someone gets killed or injured.”	Silhouette of a head against a background of a port and hills.
Tony Hehir: “Drug and alcohol use is costing Australian industry in excess of 6.5 billion dollars a year in lost productivity.”	Picture of Hehir and then of meat workers smoking in the change rooms.
Disguised voice: “Well of course they know what goes on, it’s case of them turning a blind eye to it.”	Silhouette of a head against a background of a port and hills.
Leigh McCluskey: “Just one of our stories coming up next week. Until then have a terrific weekend, good night.”	Head shot of Leigh McCluskey.

Sound	Vision
Unidentified voice: “On Today tonight, Stoned at work.	Meatworkers smoking pipes in the change rooms.
Disguised voice: “Um, put marijuana in their pipes.”	Silhouette of head against a background of a large chimney and a port.
Unidentified voice: “Our meatworkers doing drugs on the job. Risking the safety of their mates.”	Meatworkers smoking pipes in the change rooms, including a close up of a pipe.
Disguised voice: “It’s only a matter of time before someone gets killed.”	Silhouette of a head against a background of a port.
Unidentified voice: “Putting your health in danger. All caught on camera.”	More pictures of meatworkers smoking pipes in the change rooms.