The primary judge's reasons
39 After identifying the issues and describing the report, his Honour set out the well understood principles for determining whether a publication conveys a defamatory imputation. The primary judge summarised Mr V'landys' submissions and distilled the pith of how Mr V'Landys put his case below as follows (at [57]):
Mr V'landys' submissions did not separately address each of the pleaded imputations. Rather, he approached the issue by addressing the overall impression conveyed by the report as a whole. He contended, in effect, that the main message and overall impression conveyed by the report was that he was not only aware, or was callously ignoring or disregarding, that retired racehorses were being slaughtered in abattoirs and knackeries, but was callous and dishonest when he claimed that the slaughter of racehorses was not happening, or that he was not aware that it was happening. In short, the overall suggestion was, so Mr V'landys submitted, that he was not only personally responsible for the racing industry's failings in respect of the treatment of retired racehorses, but that he was a callous liar when he denied the existence of those failings.
(emphasis added)
40 However, as will appear below, Mr V'landys propounded a substantively different argument on appeal that he did not put, at least not substantively, to his Honour.
41 The primary judge found that the report did not convey any of the four imputations. He began his reasoning by noting that the question of what meaning is conveyed to the ordinary reasonable viewer of a television or video broadcast will be one of impression. He cautioned that the viewer, in whose position the judge was as the tribunal of fact, would not have watched the report as a lawyer nor paused or replayed it or parts of it, or parsed or analysed it to check or confirm the impression that it made on the viewer. Despite the legal correctness and good sense of that approach, his Honour also correctly acknowledged that in order to express reasons for his findings about whether the imputations were carried, it would be necessary to engage in some degree of analysis of the words and images in the report. He found (at [70]):
Fortunately, as events transpired, my initial impressions of the report and the meanings conveyed by it turned out to be lasting impressions. Despite hearing detailed submissions concerning the meanings conveyed by the report, re-viewing the report and re-reading the transcript of it in that context, my initial impressions largely remained. While I of course paid close attention to the parties' submissions, my initial impressions upon viewing the report for the first time very much informed the conclusions that I finally arrived at concerning the meanings conveyed by the report.
42 The primary judge found that the viewer would have watched the report with the understanding that it was an episode on one of the ABC's flagship news and current affairs programs and he or she could expect it to be well researched, presented by experienced journalists and deal with serious issues of public interest and concern. He found that the viewer of 7:30 would understand that the program was not prone to sensationalism, or loose or imprecise reporting and the viewer would be likely to view it carefully. The primary judge distinguished such a viewer of 7:30 as less likely to engage in loose thinking and speculation than viewers who watched more sensationalist and less informative programs aimed more at entertainment.
43 His Honour also found that the ordinary reasonable viewer of the report would have watched it in its entirety, without pauses, before forming his or her final view as to the meanings or imputations that it conveyed. Even so, his Honour said, some striking or powerful words and images could stay with the viewer from his or her first perception of them and influence his or her thinking about what followed. This would be likely in respect of footage in the report that depicted, in graphic ways, cruelty and mistreatment of horses that appeared throughout it and undoubtedly would have distressed, disturbed and probably angered the viewer. He found that it was likely that those scenes would have had a powerful and lasting effect on an ordinary reasonable viewer that would contribute to the ultimate impressions that he or she would form at the end of the report.
44 His Honour also recognised the importance of the overall content, subject matter and tenor of the report in any assessment of the way in which a viewer would have understood it. As he found, the report's overriding focus was not on Mr V'landys but on the integrity of the racing industry generally, in relation to its retired racehorses and "wastage". It featured the activities at Meramist abattoir and the two New South Wales knackeries. The primary judge found that Mr V'landys' interview was interspersed with other matter, usually graphic scenes of horses' mistreatment in or near the abattoir or parts of interviews with Mr Celotto and or Professor McGreevy. He found that their statements tended to undermine or cast doubt about Mr V'landys' statements with which they were juxtaposed and continued at:
82 The general message that was conveyed by Professor McGreevy and Mr Celotto was: that "wastage" was a major problem in the racing industry; that, contrary to what the racing industry would have the public believe, large numbers of retired racehorses were ending up in abattoirs and knackeries; and that the racing industry was not effectively policing the rules that were apparently designed to prevent that happening. Their message was very much confirmed by the graphic footage taken from within the Meramist abattoir and in the vicinity of the two featured knackeries. The general messages conveyed by Mr V'landys in answer to the questions put to him were: that Racing NSW had put in place rules to stop racehorses ending up in abattoirs and knackeries; that he was unaware that racehorses were ending up in abattoirs and knackeries; and that, if that was in fact happening, it was a result of the actions of a small number of people who were acting contrary to the rules of racing.
83 It would be fair to say that the overall effect of the juxtaposition of the footage of parts of the interview with Mr V'landys between footage of the interviews with Professor McGreevy and Mr Celotto and the footage of the racehorses at the knackeries was to convey an overall negative impression of Mr V'landys and his assurances concerning the efficacy of the rules that Racing NSW had put in place to combat the problem of wastage in the racing industry. It also tended to present the material and the issues raised by it in a more dramatic and sensational way. The question whether the report conveyed the specific imputations that Mr V'landys contended were conveyed must be considered in the context of the overall negative impression that was conveyed by that juxtaposition and the way the report was constructed and edited.
(emphasis added)
45 The primary judge then considered whether the report conveyed each imputation, in turn. He concluded that none was conveyed. He held that imputation 1 implicitly contained two essential elements, that first, Mr V'landys knew that a large number of racehorses were being slaughtered at Meramist abattoir and the two New South Wales knackeries, and secondly, despite that knowledge, he deliberately and insensitively allowed the slaughter to continue (at [86]). However, his Honour found, nothing in the report stated explicitly that Mr V'landys knew about the racehorses being slaughtered in the three establishments or anywhere else. And, his Honour found, nothing in the report, including when viewed as a whole, would have conveyed that Mr V'landys allowed the slaughtering to continue. Rather, his Honour found, the overall message that the report conveyed was that Racing NSW and other regulators had put in place measures to stop the slaughter of racehorses at abattoirs and knackeries, those measures were inadequate, ineffective and being ineffectively policed so that the regulators "were, to put it in colloquial terms, asleep at the wheel" (at [88]).
46 His Honour found that the ordinary reasonable viewer would have understood from the nature and tenor of Ms Meldrum-Hanna's questions to Mr V'landys that it was obvious that he had not seen any of the covert footage of the inhumane, awful mistreatment of racehorses or their presence at the abattoir, knackeries or saleyard, in contrast to her questions to Mr Celotto and Professor McGreevy while they looked at the footage.
47 His Honour found that the reporter's questions to Mr V'landys at the end of the interview were couched in hypothetical terms as a "worst case scenario", to elicit his theoretical response on the basis that the ABC had been "told" that New South Wales racehorses were being sold at auctions, falling into hands of kill buyers and sent to local and interstate premises for slaughter. The primary judge found that the viewer would have appreciated that Mr V'landys had not seen or been confronted by the horrific images in the footage aired in the report and about which Ms Meldrum-Hanna directly questioned Mr Celotto and Professor McGreevy. She never mentioned the footage to Mr V'landys in any of the aired interview. In that context, the viewer would have understood Mr V'landys' conditional response "if it is happening we will put the full force of the law against them" as confirming that he had not seen the footage, the content of which was undeniable. As the primary judge said at [95]-[97]:
95 Also important is that, at no point during the report does Ms Meldrum-Hanna assert, or put to Mr V'landys, that he, or Racing NSW, knew that New South Wales racehorses were being sent to the Meramist abattoir, or to knackeries in New South Wales, contrary to the rules and regulations that Racing NSW had put in place to prevent that occurring, and contrary to public assurances or the data provided by Racing NSW. The ordinary reasonable viewer of a serious and respected current affairs program such as 7.30, and a serious report produced by an experienced journalist such as Ms Meldrum-Hanna, would no doubt expect that, if it was to be suggested that Mr V'landys was being untruthful and that, contrary to what he had claimed, he in fact knew that large numbers of New South Wales racehorses were being slaughtered in abattoirs and knackeries, Mr V'landys would, at the very least, have been asked in clear terms whether he was being untruthful. That did not occur.
96 The only statement in the report that came close to saying that regulators, such as Racing NSW, knew that large numbers of racehorses were being slaughtered in abattoirs and knackeries, was a statement by Mr Celotto. As indicated in the summary of the report given earlier in these reasons, after Mr V'landys is shown telling Ms Meldrum-Hanna that Racing NSW's "data" told him that no New South Wales horses were ending up in a knackery or abattoir, Mr Celotto is shown stating that "[t]hey produce data that they want to release to the general public to give the impression that they're looking after these horses and they're not". That statement does not directly assert that the regulators knew that racehorses were being slaughtered in abattoirs and knackeries, but it comes fairly close.
97 Significantly, however, Ms Meldrum-Hanna did not embrace or endorse Mr Celotto's statement. Rather, she stated: "[b]ut the regulator is confident its integrity is intact, its rules are working" and that "[i]t says it hasn't found any proof of unauthorised slaughter at abattoirs interstate or at New South Wales knackeries". A portion of Mr V'landys' interview is then shown during which he says that if, contrary to what he believed to be the case, racehorses were ending up in abattoirs or knackeries, then "it means that the people have acted against the rules of racing" and that if Racing NSW had evidence that was occurring, those people would be "dealt with pretty severely". Ms Meldrum-Hanna did not challenge that statement by Mr V'landys. She did not ask Mr V'landys whether that statement was untruthful, let alone suggest to him that he knew, or must have known, that racehorses were in fact ending up in abattoirs and knackeries, or that he had seen evidence of that occurring, or that he had in fact done nothing in terms of dealing with the offenders.
(emphasis added)
48 In addition, his Honour placed reliance on Ms Sales' statement at the end of the report that following "the interview with Racing NSW", being obviously a reference to Mr V'landys, the ABC had provided it with further information about the knackeries and abattoir mentioned in the report with the names of the horses it had revealed and that Racing NSW had said that it would commit to investigate all of those horses. The primary judge reasoned at [100] that:
… the overriding impression was that the regulators, including Mr V'landys, did not really know what was going on; that their "data" was inaccurate and unreliable and that, to the extent that rules and regulations had been put in place to address the problem of "wastage", those rules and regulations were ineffective and inadequately enforced. That may have conveyed that the regulators, including Mr V'landys, were somewhat incompetent or ineffective. It did not, however, convey that they were dishonest and untruthful.
(emphasis added)
49 The primary judge found that the viewer would not have understood that the report was saying that Mr V'landys was one of the main guilty parties, but rather that "[t]he real 'villains' identified by the report" were the individuals who operated, worked at or were associated with Meramist abattoir and the two knackeries and others in the industry who were acting in breach of the rules or had lied to the regulators.
50 Accordingly, his Honour found that imputation 1 was not conveyed.
51 In considering whether imputation 2 was conveyed, the primary judge relied on his findings that the viewer would have understood the report to convey that Mr V'landys did not know thoroughbreds were being slaughtered at Meramist abattoir and had not seen the graphic footage of the cruelty and mistreatment there. He found that this understanding would have been reinforced by the statements in the report about the footage and "covert vision" at Meramist abattoir being taken of what occurred "behind closed doors". In addition, his Honour found that the report did not suggest that Mr V'landys, as CEO of Racing NSW, had responsibility in respect of regulating, or any awareness of, what occurred in abattoirs in Queensland. He found that the viewer would have understood that Mr V'landys had not been shown the footage. Thus, his Honour found that imputation 2 was not conveyed.
52 His Honour found that imputation 3 was not conveyed because, once again the viewer would not have understood the report to convey that Mr V'landys either had asserted that no racehorses were sent to knackeries in New South Wales (as opposed to him saying that, together with its systems and processes, the "data" available to Racing NSW said that) or that he was making such an assertion with knowledge that it was untrue. Indeed, his Honour found that, in his exchanges with Ms Meldrum-Hanna, Mr V'landys said that Racing NSW's processes and systems were fallible and that, if racehorses were ending up in knackeries, that was because "people have acted against the rules of racing" and no matter how good its processes and systems were, those would not prevent the small number in the industry intent on doing the wrong thing from breaching the rules. His Honour also said that the viewer would have understood that Mr V'landys had told the reporter that Racing NSW had to rely on the information given to it and that it did not have the resources to check on every horse. Thus, his Honour concluded, the report conveyed no more than that, based on the data available to him, Mr V'landys believed that no racehorses were sent to knackeries in New South Wales, but accepted that the data was fallible.
53 The primary judge found that even if the report had conveyed that Mr V'landys had made an unequivocal assertion that no racehorses were sent to knackeries in New South Wales, it did not also convey that Mr V'landys knew that assertion was untrue and thus he was being dishonest. Once again, in coming to that conclusion, his Honour found that the report conveyed that Mr V'landys was relying on the data available to him, Racing NSW's processes and systems and their fallibility and, as the primary judge found in respect of imputation 1 at [125]:
… at no point during the report did Ms Meldrum-Hanna assert that anything said by Mr V'landys was deliberately untrue or dishonest. Nor did Ms Meldrum-Hanna put to Mr V'landys at any point that any of the answers that he had given were knowingly false or dishonest. The ordinary reasonable viewer of a report by an experienced ABC journalist on its flagship current affairs program would have expected that, if it was to be suggested that Mr V'landys was lying or being dishonest, that would have been put to him for his response, or at least would have been explicitly stated in the report. Given that neither of those things occurred, the ordinary reasonable viewer or reader would most unlikely understand or perceive that the report was not conveying or suggesting that Mr V'landys was lying or being dishonest.
54 The primary judge also found that imputation 4 was not conveyed because, essentially, the viewer would not have understood the report to be saying that Mr V'landys was dishonest and knew what he was saying to be untrue. He found at [129]-[131]:
There could be little doubt that the report conveyed that Mr V'landys had asserted that Racing NSW cared about the welfare of thoroughbred horses and had taken adequate steps to protect their welfare. There could also be little doubt that the report conveyed that the steps that had been taken by Racing NSW were not adequate. That, indeed, was essentially the main theme and main message conveyed by the report. For the reasons already given, however, I am not persuaded that the report conveyed to the ordinary reasonable viewer that Mr V'landys' assertions about the adequacy of the steps that had been taken by Racing NSW to protect the welfare of racehorses were deliberately untrue or dishonest.
As with the other imputations, Mr V'landys' contention that this imputation was conveyed essentially hinged on the claim that the report conveyed that he well knew that large numbers of New South Wales racehorses had been and were being slaughtered in abattoirs and knackeries and that he and Racing NSW had done nothing to stop that occurring. It was no doubt on that basis that Mr V'landys claimed that the report conveyed that the statements that he had made about caring for the welfare of racehorses and the steps that had been put in place to protect them were untrue and therefore disingenuous and duplicitous.
…
For the reasons given earlier, the ordinary reasonable viewer of the report would have expected that, if such serious allegations were intended to be conveyed, they would have been put to Mr V'landys and spelled out in terms in the report. The fact that that did not occur would have suggested to the ordinary reasonable viewer that the ABC and Ms Meldrum-Hanna were not suggesting that Mr V'landys was being deliberately untruthful or disingenuous.