Federal Court of Australia

V’landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application filed 21 February 2020 be dismissed.

2.    The applicant pay the respondents’ costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    Mr Peter V’landys AM is a prominent and well-respected sports administrator and regulator. He is, amongst many other things, the Chief Executive Officer and member of the Board of Racing NSW, the regulating body for thoroughbred horse racing in New South Wales. He was appointed to that role in 2004. In 2014, he was appointed a Member of the Order of Australia for his services to horse racing.

2    On 17 October 2019, the Australian Broadcasting Corporation (ABC) broadcast a report of a “special investigation” into the horse racing industry in Australia during an episode of its flagship news and current affairs program, 7.30 (the report). The report was also made available for viewing on the internet, as was a transcript of the report. The report, titled “The Final Race: The dark side of the horse racing industry”, was authored and presented by the well-known investigative journalist, Ms Caro Meldrum-Hanna. It was introduced as being a report which challenged the public assurance given by the racing industry that it “cares for the racehorses in its charge” and which “reveal[ed] what really goes on when racehorses’ lives end in knackeries and abattoirs”. It included graphic and confronting footage of the mistreatment and slaughter of former thoroughbred racehorses. It would be fair to say that the report did not portray aspects or elements of the thoroughbred racing industry in a very favourable light.

3    Mr V’landys was interviewed by Ms Meldrum-Hanna as part of her investigation. He was essentially the only officer of any of the mostly state-based thoroughbred racing regulatory bodies who was prepared to be interviewed for the program. During the interview, Mr V’landys was asked, amongst other things, about the efficacy and policing of rules which had been introduced by Racing NSW in an endeavour to prevent retired thoroughbreds from ending up in abattoirs and knackeries. Film clips of that interview portrayed Mr V’landys expressing confidence in those rules and confidence that thoroughbreds from New South Wales were not ending up in abattoirs and knackeries in New South Wales. He said that if that was in fact occurring, Racing NSW would “put the full force of the rules of racing” against those responsible and that they were to be “dealt with pretty severely”. Extracts from Mr V’landys’ interview appeared throughout the report as broadcast.

4    Unbeknownst to Mr V’landys, the ABC and Ms Meldrum-Hanna had evidence in their possession which suggested that racehorses from New South Wales were in fact being slaughtered in an abattoir in Queensland. That evidence included graphic and disturbing video footage of former racehorses being slaughtered and treated with unspeakable cruelty in that abattoir. That footage was included in the report. Also unbeknownst to Mr V’landys, the ABC had evidence in its possession which showed that former racehorses were being transported to, and slaughtered in, at least two knackeries at Luddenham and Riverstone in New South Wales. That evidence included video footage of horses being purchased, transported to and arriving at the knackeries. That footage was also included in the report. It would be fair to say that the inclusion in the report of the video footage from, and relating to, the abattoir and knackeries had the effect of undermining Mr V’landys’ confident assertions concerning the efficacy of Racing NSW’s rules.

5    Mr V’landys commenced proceedings against the ABC and Ms Meldrum-Hanna alleging that he had been defamed by the report. He claimed that the report conveyed a number of defamatory imputations, including that: in his position of Chief Executive Officer of Racing NSW, he “callously permitted the wholesale slaughter of thoroughbred horses”; that he “ignored the cruelty to which thoroughbred horses were subjected to [sic] in a Queensland abattoir”; that he “dishonestly asserted that no racehorses were sent to knackeries for slaughter in New South Wales when he knew that was untrue”; and that he “dishonestly asserted that Racing NSW cared about the welfare of thoroughbred horses and took adequate steps to protect their welfare when he knew that was untrue”. Mr V’landys claimed that he had been “greatly injured” by the defamatory report and that his “business, personal and professional reputation” had been, continues to be, and will be, “brought into public disrepute, ridicule and contempt”. He sought damages, including aggravated damages, special damages, interest and costs.

6    The ABC and Ms Meldrum-Hanna denied that the report was defamatory or conveyed any of the imputations alleged by Mr V’landys, or any imputations not differing in substance. The same denials were made in respect of the imputations said to have been conveyed by the version of the report made available for viewing on the ABC’s website and the transcript of the report. The ABC and Ms Meldrum-Hanna accordingly denied that Mr V’landys had suffered any loss or damage arising from those publications.

7    The main issue for consideration and determination is whether the report, in any of its forms, conveyed the imputations that Mr V’landys claimed it did, or any imputations that did not differ in substance from them.

THE publication in summary

8    Following is a short summary of the general nature and content of the report. Specific aspects and elements of the publication will be discussed in further detail in the context of the consideration of whether any of the alleged imputations were conveyed by the report.

9    The report was introduced by the usual host of 7.30, Ms Leigh Sales. Ms Sales indicated that the report was the result of a two-year investigation into horse racing. She then identified what was said to be the general theme of the report: that while the “industry” says that it “cares for the racehorses in its charge”, the report would “challenge that assurance” and “reveal what really goes on when racehorses’ lives end in knackeries and abattoirs”. Ms Sales then warned viewers that what they were about to see “is extremely hard to watch” and that “[l]overs of the sport … will be enraged by [the] footage, seeing the pitiful way the horses are treated when they are no longer profitable or wanted”.

10    The report then commenced with video footage of horses in holding pens at night. Ms Meldrum-Hanna’s voiceover asserted that “[t]his is not a safe place for these animals” and that recent signs of injuries to the horses indicated that “this is a place of violence”.

11    The import of those rather dramatic opening words was then explained by an exchange between Ms Meldrum-Hanna and Professor Paul McGreevy, who was introduced as being a veterinarian and a Professor of Animal Behaviour and Welfare Science who had been studying thoroughbreds for over 25 years. During that exchange, Professor McGreevy identified “wastage”, being the “loss of animals from the industry to an uncertain fate”, as being the “greatest threat for the thoroughbred racing industry”. Ms Meldrum-Hanna then stated that about 8,500 horses are retired from the track each year and that “according to the racing industry, less than 1 per cent of them are ending up at an abattoir”. In apparent response, Professor McGreevy asserted that those figures did not “add up” and that he believed that at least 4,000 horses were “meeting a very grizzly end” each year. That scenario was described as a “black hole” into which those horses were “disappearing”.

12    Ms Meldrum-Hanna then introduced Mr Elio Celotto from the Coalition for the Protection of Racehorses. Mr Celotto and others from the Coalition were said to have been surreptitiously watching the Meramist abattoir, which is an abattoir located just to the north of Brisbane, for the past two years. He described how racehorses were slaughtered at that abattoir and shipped overseas for human consumption. Ms Meldrum-Hanna also referred to the fact that other “undercover investigators” had entered the abattoir and covertly recorded racehorses being slaughtered. Mr Celotto estimated that about 4,000, or probably closer to 5,000, racehorses were killed at the Meramist abattoir each year. Professor McGreevy then noted that the “industry” was assuring the public that only about 34 racehorses were ending up at abattoirs or knackeries each year. Mr Celotto then stated that more than 34 racehorses were killed each week at the Meramist abattoir alone.

13    The exchanges between Ms Meldrum-Hanna and Professor McGreevy and Mr Celotto essentially framed the main theme of the report: that contrary to assurances given by the racing industry, large numbers of retired racehorses were being slaughtered at abattoirs and knackeries each year. The balance of the report developed that theme, in often graphic and disturbing detail.

14    It was at this point that the covert footage taken from inside the Meramist abattoir, which had been foreshadowed by Ms Meldrum-Hanna, was first played. That footage included graphic and shocking images of cruelty to horses by what appeared to be employees of the abattoir, accompanied by equally graphic descriptions of the cruelty by Ms Meldrum-Hanna. Ms Meldrum-Hanna described the cruelty and slaughter of the horses at the Meramist abattoir as a “damning state of affairs”, particularly given that the Queensland Racing Integrity Commission was said to have an animal welfare strategy which included, as its first objective, to “minimise the wastage of racing animals”. Ms Meldrum-Hanna noted that the Queensland Racing Integrity Commission and Racing Queensland had declined to answer her questions about racehorses being slaughtered at Meramist.

15    Both Professor McGreevy and Mr Celotto were then shown separately watching the covert footage taken from inside the Meramist abattoir. More of that footage was also played in the report, along with further descriptions by both Ms Meldrum-Hanna and Professor McGreevy, of the cruelty and mistreatment displayed in that footage. The imagery was, and is, truly disturbing and difficult to watch, as Ms Sales had forewarned. It is unnecessary to describe it further here.

16    Ms Meldrum-Hanna was shown telephoning the Meramist abattoir, however the person who answered the telephone declined to answer Ms Meldrum-Hanna’s questions.

17    While the Meramist abattoir was in Queensland, at this point Ms Meldrum-Hanna turned her attention to New South Wales. Mr Celotto and Ms Meldrum-Hanna stated that many New South Wales-bred and -domiciled horses had been slaughtered at the Meramist abattoir. Those horses were identified. Ms Meldrum-Hanna stated that the question of how those horses “ended up at an abattoir in Queensland requires answers because, under New South Wales rules, it’s strictly prohibited”. The report then segued to video footage which showed the former New South Wales Premier announcing a ban on greyhound racing in mid-2016.

18    It is in that context that Mr V’landys was first identified or referred to in the report. Video footage of him addressing a racing industry meeting was played. He was recorded as saying, amongst other things, that “the greatest challenge racing has at the moment is welfare”, that “we do have wastage as well” and that “[w]e’re the next online [sic] for the animal liberationists”. Ms Meldrum-Hanna then introduced Mr V’landys in the following terms:

Industry leaders led by Racing New South Wales CEO, Peter V’landys, mounted a PR offensive introducing a raft of new animal welfare measures.

19    Video footage was then played of Mr V’landys announcing the establishment of a welfare fund and a policy designed to ensure that “every horse in New South Wales that’s domiciled in New South Wales will be rehomed”. Ms Meldrum-Hanna referred in that context to Racing NSW having publicised the acquisition of three properties which she described, perhaps somewhat sarcastically, as “retirement paradises for gallopers leaving the track”.

20    It was in that context that the first extract from an interview between Ms Meldrum-Hanna and Mr V’landys was played. It was a small extract during which Mr V’landys referred to Racing NSW having taken steps to ensure that racehorses are having a “good retirement”.

21    It is important to note at this point that extracts from the interview between Ms Meldrum-Hanna and Mr V’landys were interwoven and juxtaposed throughout the report with interviews between Ms Meldrum-Hanna and Mr Celotto and Professor McGreevy and other video footage, including footage taken at abattoirs, knackeries and saleyards. In many cases, extracts from the interview between Ms Meldrum-Hanna and Mr V’landys are preceded or succeeded by statements from Mr Celotto, Professor McGreevy, or video footage, that tended to cast some doubt on what Mr V’landys had said during the interview.

22    At this point in the report, Ms Meldrum-Hanna referred to a “new enforceable rule” introduced by Racing NSW and Racing ACT which provided that “in the event that owners are unable to find a home for a horse that is being retired, the horse is not to be directly or indirectly sent to an abattoir or a knackery” and that a “horse cannot be sold or gifted at a livestock auction not approved by the regulator”. Mr Celotto was then recorded as saying, in apparent reference to that rule, that “[y]ou would think that, if they have this rule in place, that the very first thing that they would do is have somebody attend these sales so that these horses can be picked up and rescued and not sent to slaughter”.

23    The report then cut again to the interview with Mr V’landys. Ms Meldrum-Hanna asked Mr V’landys “[i]s that [rule] being policed by your stewards”. Mr V’landys responded by saying “[y]eah, absolutely” and referred to “intelligence networks”. The report then segued to video footage taken at the Camden horse sales. The upshot of that footage, and Ms Meldrum-Hanna’s commentary in respect of it, was that “kill buyers, known in the industry as ‘doggers’, are buying racehorses” at those sales. A sequence of images and commentary by Ms Meldrum-Hanna suggested that a number of horses purchased at the auction were, or had been, transported to a knackery in Luddenham called ‘Luddenham Pet Meat’. That knackery was said to produce meat, presumably including horse meat, for the greyhound industry.

24    The report then cut back to the interview with Mr V’landys. He was asked by Ms Meldrum-Hanna: “are racehorses being fed to greyhounds as fuel?” Mr V’landys’ response was: “I have no evidence of that. I have had no reports from anyone, other than yourself today, that that is happening”. He also denied having heard “that rumour”.

25    Ms Meldrum-Hanna indicated at that point, though not during her interview with Mr V’landys, that she had “seen proof of multiple racehorses ending up at Luddenham Pet Meat after the knackery ban came into force”. Ms Meldrum-Hanna then gave some examples of that “proof”. Professor McGreevy is also recorded as stating that “[w]ell, it’s a clear breach of everything they’re assuring us of”.

26    The report then cut back to the interview between Ms Meldrum-Hanna and Mr V’landys and the following important exchange occurred:

CARO MELDRUM-HANNA:

How many New South Wales horses are ending up at a knackery or abattoir? What is your data telling you here?

PETER V’LANDYS:

Well, in New South Wales, zero.

CARO MELDRUM-HANNA:

Zero?

PETER V’LANDYS:

Because it is against the rules of racing.

CARO MELDRUM-HANNA:

Are you sure zero?

PETER V’LANDYS:

Yes, absolutely.

27    Immediately after that exchange, Mr Celotto was recorded as saying 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”. Aerial footage of Luddenham Pet Meat was shown with Ms Meldrum-Hanna’s voiceover, which included: “the regulator is confident that its integrity is intact, its rules are working” and that “it hasn’t found any proof of unauthorised slaughter at abattoirs interstate or at New South Wales knackeries”.

28    The report then again segued back to the interview between Ms Meldrum-Hanna and Mr V’landys during which the following important exchange occurred:

CARO MELDRUM-HANNA:

Zero are ending up at a knackery or abattoir in New South Wales? That is what we’ve just said.

What if I told you that’s not correct? That there are New South Wales horses ending up at a knackery and an abattoir?

PETER V’LANDYS:

Well, if there is, it means that the people have acted against the rules of racing and if we have evidence of that, they will be dealt with pretty severely.

We’ll put the full force of the rules of racing against anyone that does that because it’s a severe breach of our rules and our terms and conditions of being in the thoroughbred racing industry.

29    The report then returned to footage of the Camden horse sales. In a voiceover to that footage, Ms Meldrum-Hanna stated that undercover cameras had recorded more racehorses being sold off. One of the horses was identified as having originally been purchased by a Chinese syndicate for $200,000 and then having been sold at the Camden sales for a “measly $380”. Footage of the interview with Mr Celotto is then played and he is recorded as saying, in the context of the Camden sales, that Racing NSW “has a whole integrity department that is supposed to protect these horses from these very situations”.

30    The report then again cut back to the interview between Ms Meldrum-Hanna and Mr V’landys during which the following significant exchange occurred:

PETER V’LANDYS:

No matter how good you are as an administrator, no matter how solid your systems and processes are, you’ll never eradicate the 1 per cent no matter how hard you try and that goes for everything in the community not just horse racing.

There is always going to be an element that do the wrong thing.

Some of these people that are going out and attacking thoroughbred racing, what are they doing about the domestic animals, the pets that are abandoned and what about the 6,000 dogs that are euthanised each year? What about the 14,000 cats that are euthanised each year?

CARO MELDRUM-HANNA:

I think the difference here is, Peter, is that thoroughbred racing is a sport and it is regulated.

PETER V’LANDYS:

But why aren’t domestic animals regulated?

When you can tell me how you trace cats and dogs, I can tell you how we can trace our horses.

CARO MELDRUM-HANNA:

Not my responsibility, I’m not a regulator for cats and dogs but you are a regulator for racehorses.

PETER V’LANDYS:

But I think it should be fair to all animals, not just horses.

31    Ms Meldrum-Hanna then turned her attention to another knackery referred to as ‘Burns Pet Foods’ in Riverstone. Ms Meldrum-Hanna addressed that topic by stating that “undercover investigators have found more horses are falling through the regulator’s systems of traceability”. Footage was then shown of a number of former racehorses who were said to have ended up “condemned to death” at Burns Pet Foods. Ms Meldrum-Hanna was subsequently shown unsuccessfully attempting to question someone from Burns Pet Foods over the telephone.

32    The report then displayed historical video footage of a number of former racehorses, some of which apparently ended up being slaughtered at the knackery associated with Burns Pet Foods. Ms Meldrum-Hanna is recorded as saying in respect of one of those racehorses, Tahitian Black, that the fact that he “ended up discarded at Burns Pet Foods is breath-taking”. Ms Meldrum-Hanna is then shown interviewing the former trainer of Tahitian Black who was, it appeared, unaware that his former charge had been slaughtered at a knackery. The trainer, who was apparently shocked by that revelation, said that he had nothing to do with the fact that Tahitian Black had ended up in a knackery and claimed that “[o]nce I given [sic] them away, find them a home, they’re sort of out of my hands”.

33    While up to this point the report had mainly dealt with the thoroughbred racing industry, Ms Meldrum-Hanna also briefly addressed the harness racing industry and the treatment of standardbreds or pacers. Ms Meldrum-Hanna stated that she had been shown proof that “standardbreds, pacers from the trots, are being slaughtered at these knackeries, too, despite New South Wales Harness Racing’s lifelong tracking and care of standardbreds, announced in 2016”. A short extract is shown of an interview between Ms Meldrum-Hanna and the Chief Executive Officer of Harness Racing NSW, Mr John Dumesny. It suffices to note in relation to that interview that Ms Meldrum-Hanna fairly robustly challenged Mr Dumesny’s claim that Harness Racing NSW had a “rehoming program”.

34    The report then returned to the Meramist abattoir and further video images were shown of appalling and gratuitous cruelty to racehorses by workers at that abattoir. The report then showed, by way of contrast, “glitzy, glamorous promotion videos” of upcoming racing events, during which an announcer says “[i]t’s cloud nine, and wonderland all mixed in together”. Ms Meldrum-Hanna is then heard to say, in that context, that “[b]ehind closed doors, at Meramist abattoir, there is no wonderland, no cloud nine here”. Professor McGreevy is also heard to say that “[w]e’re talking about destroying horses on an industrial scale” and “seeing animals suffering” and that he did not think that anyone in the industry “could ever defend this”.

35    It was in that context that the final extract from the interview between Ms Meldrum-Hanna and Mr V’landys was shown. The following exchange occurred:

CARO MELDRUM-HANNA:

I’m going to give you a worst case scenario and you tell me how bad this scenario would be – that New South Wales racehorses are being sold at livestock auctions that aren’t approved and they are falling into the hands of kill buyers, that New South Wales racehorses are also being sent interstate for slaughter and that New South Wales racehorses are also being knackered in New South Wales. This is post the ban.

We’re told this is happening. If that is happening, what is your response?

PETER V’LANDYS:

If it is happening, we will put the full force of the law against them, because they are breaching the rules of racing.

As I said I’m the first person that loves horses more than anyone. I will go down very hard on them.

36    The report concluded with the following words from Professor McGreevy:

PAUL MCGREEVY:

Oh God. There’s no denying the footage.

There is a massive question mark over the regulator, and the problem of self-regulation comes into play yet again.

This is the sort of material that will shake the industry to the core.

37    At the conclusion of the report, the program returned to Ms Sales. Ms Sales noted, amongst other things, that the ABC had sought interviews with both national racing regulators, Racing Australia and Harness Racing Australia as well as Racing Queensland but that they all said that they were unavailable. Ms Sales also noted that, following the interview with Racing NSW, the ABC had “provided the regulator with further information regarding the knackeries and the abattoir mentioned in this program and also the names of the racehorses featured”. She also noted that Racing NSW had “told 7.30 it will commit to investigating all of the reported horses but raised questions about jurisdictions [sic]”.

38    The 7.30 program then concluded.

THE ALLEGED IMPUTATIONS

39    The imputations that Mr V’landys alleged were conveyed by the three “matters complained of” were as follows:

1.     Mr V’landys, as Chief Executive Officer of Racing NSW, callously permitted the wholesale slaughter of thoroughbred horses;

2.     Mr V’landys, because of his indifference to their suffering, ignored the cruelty to which thoroughbred horses were subjected to in a Queensland abattoir;

3.     Mr V’landys dishonestly asserted that no racehorses were sent to knackeries for slaughter in New South Wales when he knew that was untrue; and

4.     Mr V’landys dishonestly asserted that Racing NSW cared about the welfare of thoroughbred horses and took adequate steps to protect their welfare when he knew that was untrue.

40    Before addressing the question whether any of those imputations were conveyed by the report, it is necessary to briefly outline the relevant principles to apply in embarking on that exercise. There was little, or no, dispute between the parties concerning those principles.

IMPUTATIONS – RELEVANT PRINCIPLES

41    An applicant in defamation proceedings in this Court is required to specify and plead the defamatory imputations or “meanings” that are alleged to have been conveyed by the publication or publications in question. The applicant bears the onus of proving on the balance of probabilities, that those meanings or imputations, or meanings that do not differ in substance from them, were in fact conveyed by the publication or publications in question.

42    The principles to be applied in determining whether a publication conveyed particular defamatory imputations are well settled. The lead authorities and the principles established by them were comprehensively considered by Hunt CJ at CL (with whom Mason P and Handley JA agreed) in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164-165, and have in more recent times been considered in this Court in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; [2015] FCA 652 at [63]-[73]; Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [14]-[27]; Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; [2019] FCAFC 125; Chau v Australian Broadcasting Corporation (No 3) (2012) 386 ALR 36; [2021] FCA 44 at [31]-[39]. The basic principles were also considered by the High Court in Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25 at [30]-[32] in the context of an appeal from the summary dismissal of a defamation action.

43    It is unnecessary to discuss the relevant principles in great detail because for the most part they were not in dispute. Following is a short summary of the main points drawn from the authorities.

44    First, the question of whether the defamatory meanings were in fact conveyed is a question of fact.

45    Second, the relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person. Where the publication is in the form of a television broadcast, the question is what the words used would have conveyed to the ordinary reasonable viewer of such a broadcast. The Court is required to put itself in the shoes of, or assume the role of, the ordinary reasonable viewer. Where the publication is in writing, the Court must similarly put itself in the shoes of the ordinary reasonable reader.

46    Third, in this context, the authorities ascribe the ordinary reasonable viewer or reader with certain character traits, qualities or characteristics. The ordinary reasonable viewer or reader is variously said to be of fair to average intelligence, experience and education. They are also taken to be fair-minded and neither perverse, morbid nor suspicious of mind, nor “avid for scandal”: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506, citing Lewis v Daily Telegraph Ltd [1964] AC 234 at 260. As the High Court pointed out in Trkulja at [31], the reality is that ordinary men and women in fact have different temperaments, outlooks, degrees of education and life experience, so the exercise is really one of “attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning”.

47    Fourth, the meaning that would be conveyed to the ordinary reasonable viewer or reader is often called “the natural and ordinary meaning”: see, for example, Wing at [15]. In some cases, the natural and ordinary meaning may be obvious from the direct or literal meaning of the words printed or spoken in the publication. More often than not, however, the question turns on what implications or imputations the ordinary reasonable viewer or reader would understand were conveyed by those words, together with any images and, in the case of broadcasts, sounds used in the publication.

48    Fifth, in determining what implications or imputations the ordinary reasonable viewer or reader would understand or draw from the publication, the authorities suggest that the ordinary reasonable viewer or reader should generally be taken to approach or consider a publication in a particular way or ways. The ordinary reasonable viewer or reader is, for example, said not to be a lawyer who would examine the publication overzealously, but rather someone who would view publications casually and is prone to a degree of “loose thinking”: Trkulja at [32]. The ordinary reasonable viewer or reader is also said not to live in an “ivory tower”, but is rather someone who can and does “read between the lines” in light of their general knowledge and experience of worldly affairs: Lewis at 258. While the ordinary reasonable viewer or reader does not generally search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would. While they would view or read the entire publication and consider it as a whole, they may take into account the emphasis that may be given by, for example, conspicuous captions or headlines or, in the case of a broadcast, conspicuous images, sounds or manners of speech.

49    Sixth, the mode or manner of publication can often be a relevant consideration in determining what was conveyed to the ordinary reasonable viewer or reader. It has been said, for example, that the ordinary reasonable reader of a book would tend to read what was written with more care and consideration than the reader of an article in a newspaper, particularly one which is written in sensational and perhaps loose or ambiguous terms. The ordinary reasonable reader of such an article is generally considered to be more likely to engage in “loose thinking”. Particular considerations also apply in the case of publications in electronic form, such as television or radio broadcasts. In Marsden, the following was said in that regard (at 166, citations omitted):

Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article, and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material.

50    It should, however, be noted in this context that television broadcasts in more recent times are not as transient as they once were. They are generally made available over the internet, as they were in this case, and can also generally be replayed using a streaming service such as, in the case of the ABC, “iview”. Although programs ‘expire’ on iview, generally after several weeks, The Final Race is apparently still available on the ABC’s website.

51    Seventh, the relevant publication has to be read or viewed as a whole. Each alleged defamatory imputation must be considered in the context of the entire publication. It does not follow, however, that each part of the publication must be given equal significance. Particularly striking words or images may stay with the viewer or reader and give the viewer or reader a predisposition or impression that influences all that follows.

52    Eighth, the meaning that an ordinary reasonable viewer or reader would attribute to a publication, or the impression that the viewer or reader forms, may be influenced by the overall tone or tenor of the publication in question.

53    Ninth, because the meaning is to be determined objectively, the Court must determine a single objective meaning, even though in reality different people may have understood the meanings conveyed by the publication in different ways.

54    Tenth, in determining the meaning in fact conveyed by the publication, the intention of the publisher is irrelevant.

55    Eleventh, the manner in which the publication was actually understood by any individual reader or viewer is also irrelevant in determining what meaning was conveyed to the ordinary reasonable reader or viewer. The question is to be determined on the basis of the natural and ordinary meaning of the publication alone.

SUBMISSIONS CONCERNING THE IMPUTATIONS

56    Mr V’landys’ submissions concerning the imputations conveyed by the articles focussed mainly on the overall structure, nature and tenor of the report and the overall impressions that were conveyed. He pointed to the emotive language which was used throughout the report which, in his submission, coupled with the graphic and disturbing footage of cruelty to horses, incited and was intended to incite anger and disgust in the ordinary reasonable viewer or reader.

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.

58    There were a number of key features of the report that were relied on by Mr V’landys in support of that contention.

59    First, Mr V’landys contended that he was essentially the only racing industry representative who was identified or referred to in the report. He and Racing NSW were, in his submission, essentially equated with the industry.

60    Second, the report was essentially introduced by Ms Sales as being a report which exposed the falsity of the industry’s public assurances concerning the treatment of retired racehorses. That theme was said to have continued throughout the report. Mr V’landys submitted that, as he was effectively the only racing industry representative who appeared in the report, he was equated with the industry. It followed, in his submission, that the report conveyed the impression that he was responsible for those false public assurances.

61    Third, Mr V’landys’ appearances in the report were preceded by, and juxtaposed with, appearances by Professor McGreevy and Mr Celotto, who were, in Mr V’landys’ submission, portrayed in a positive light and as being “heroes” for exposing cruelty to racehorses. The parts of Mr V’landys’ interview which were included in the report were also, Mr V’landys contended, those which tended to portray him as callous. Particular reliance was placed, in that regard, on the portion of the interview where Mr V’landys complained that the people who were attacking thoroughbred racing were doing nothing about cruelty to domestic animals such as dogs and cats.

62    Fourth, and related to the previous point, Mr V’landys relied on some statements by Professor McGreevy and Mr Celotto which were said to be tantamount to calling Mr V’landys a liar. Particular reliance was placed on the occasion when, after footage was shown of Mr V’landys telling Ms Meldrum-Hanna that the available “data” indicated that no New South Wales racehorses were ending up in a knackery or abattoir, Mr Celotto stated: “[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”.

63    Fifth, Mr V’landys’ appearances in the report were also preceded by, and juxtaposed with, the graphic footage of the treatment of racehorses in the Meramist abattoir and the two knackeries in New South Wales. Moreover, and critically, in Mr V’landys’ submission, the ordinary reasonable viewer would have been led to believe, contrary to fact, that Mr V’landys had viewed the footage taken in the Meramist abattoir. There was no doubt that Professor McGreevy and Mr Celotto had seen the footage. In Mr V’landys’ submission, it would have made no sense to the ordinary reasonable viewer that Professor McGreevy and Mr Celotto had seen the footage but he had not. The effect, Mr V’landys submitted, was that he was portrayed as “callous and dishonest” in denying the undeniable.

64    Sixth, Mr V’landys contended that the tone and tenor of Ms Meldrum-Hanna’s questioning, and even the look on her face when she was asking the questions, not only suggested that she was sceptical, but invited the ordinary reasonable viewer to disbelieve Mr V’landys and find that he was lying. For example, when Mr V’landys told Ms Meldrum-Hanna, in answer to a question, that he had no evidence and no reports that racehorses were “being fed to greyhounds as fuel”, Ms Meldrum-Hanna responded: “[n]ever heard of that rumour?” Similarly, when Mr V’landys told Ms Meldrum-Hanna that the available data indicated that “zero” New South Wales racehorses were ending up in abattoirs or knackeries, Ms Meldrum-Hanna responded, with a quizzical look, “[a]re you sure zero?” It was also submitted that some of Ms Meldrum-Hanna’s commentary had a sarcastic tone that invited scepticism. For example, Mr V’landys was described as having mounted a “PR offensive”, and the properties acquired by Racing NSW to provide a home for some retired racehorses were described as “retirement paradises”.

65    In Mr V’landys’ submission, the overall tone and tenor of the report and the way it had been edited was such that whatever he said was subverted by the images and the statements made by Professor McGreevy, Mr Celotto and Ms Meldrum-Hanna.

66    For their part, the ABC and Ms Meldrum-Hanna contended that the report did not convey any of the imputations alleged by Mr V’landys. In their submission, while the report would plainly have been embarrassing for Mr V’landys, in his capacity as the Chief Executive Officer of Racing NSW, it did not suggest or convey that Mr V’landys knew about the slaughter of racehorses in the Meramist abattoir in Queensland and the knackeries in New South Wales, or that he was lying when he said that, as far as he was aware, no New South Wales racehorses were ending up in abattoirs or knackeries. Indeed, in the submission of the ABC and Ms Meldrum-Hanna, the central theme of the report was that the regulators should have known, but did not know, what was happening; that self-regulation and the state-based regulatory reforms that had been put in place supposedly to deal with the issue of “wastage” were simply not working.

67    In that context, the ABC and Ms Meldrum-Hanna accepted that Mr V’landys was portrayed as being overconfident in his own successes and over-reliant on the effectiveness of the rules and regulations. They submitted, however, that “[o]ver-promising and under-delivering is not the same as lying or dishonesty” or “callous indifference to animal cruelty”. In their submission, the report did not in any way portray or convey Mr V’landys: as having himself “callously permitted” the wholesale slaughter of racehorses; or as being indifferent to, or having ignored, the cruelty to the suffering of thoroughbred horses in the Meramist abattoir; or as having “dishonestly asserted” that no racehorses were sent to knackeries for slaughter in New South Wales when he knew that was untrue; or as having dishonestly asserted that Racing NSW cared about the welfare of thoroughbred horses and took adequate steps to protect their welfare when he knew that was untrue.

WERE ANY OF THE IMPUTATIONS CONVEYED?

68    As the previous discussion concerning the relevant principles makes clear, I am required to put myself in the hypothetical shoes of the ordinary reasonable viewer of the report, or the ordinary reasonable reader of the transcript of the report, and decide whether any of the imputations pleaded by Mr V’landys, or imputations that do not differ in substance from them, were in fact conveyed. As Rares J observed in Chau (at [30]-[32]), the process is “imperfect” and requires some “mental agility”.

69    On the one hand, the question of what meanings were conveyed is often a matter of impression, and I must have regard to the fact that the ordinary reasonable viewer is not only not a lawyer, but would most likely not have paused or replayed the report, or parts of it, for the purpose of parsing and analysing the words and images to check or confirm the impressions conveyed. On the other hand, I have received detailed written and oral submissions about the report and have necessarily viewed it several times. My reasons for finding whether or not the imputations were or were not conveyed must also involve some degree of analysis of the words and images and what they would convey.

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.

71    It is useful to first make some broad observations concerning the nature of the report and the overall impression or impressions conveyed by it before separately addressing the individual imputations alleged by Mr V’landys.

Contextual considerations and the general impressions conveyed

72    The first general observation is that the report was broadcast as part of an episode of one of the ABC’s flagship news and current affairs programs. That program, 7.30, is a half-hour long program which the ordinary reasonable viewer would understand generally includes well-researched reports by experienced journalists and social and political commentators concerning serious issues of public interest or concern. It should be noted, in this context, that, somewhat unusually for the 7.30 program, the report in question was almost 50 minutes long and occupied the entire episode of 7.30 on 17 October 2019.

73    Returning to the nature of the program generally, while views may of course differ, the ordinary reasonable viewer of 7.30 would most likely understand that the program was a respected current affairs program which was generally not prone to sensationalism, or loose or imprecise journalism or reporting. The ordinary reasonable viewer of 7.30 would be a person interested in watching a program containing serious and well-researched reporting about important issues. Such a viewer would generally be more likely to view the program carefully and be less likely to engage in loose thinking and speculation than viewers of more sensationalist and less informative programs aimed more at entertainment than serious journalism.

74    The second general observation is that the ordinary reasonable viewer of both 7.30 generally, and the report in question specifically, would generally view the program in its entirety and without pause before forming a final view as to what it conveyed. As observed earlier, there was some scope for viewers to view an online version of the report and to read a transcript. Obviously the online version of the report could be paused and parts of the report, or the report in its entirety, could be replayed. The ordinary reasonable viewer would generally not, however, pause and replay the report on multiple occasions for the purpose of parsing and analysing the words and images.

75    The fact that the ordinary reasonable viewer would tend to view the report in its entirety before forming concluded views does not, however, mean that certain striking or powerful words or images would not necessarily stay with the viewer and influence their thinking of what followed. It may be noted, in that context, that the footage of the cruelty to, and mistreatment of, horses throughout the report was likely to have had that effect on the ordinary reasonable viewer. The ordinary reasonable viewer would undoubtedly have been disturbed or distressed and most likely angered by that footage. It would most likely have had a powerful and lasting effect on the ordinary reasonable viewer and conveyed an overall contextual impression within which specific parts of the report were likely to have been viewed.

76    The third general observation again concerns the overall content, subject matter and tenor of the report and what it conveyed generally. The specific imputations alleged by Mr V’landys and the specific parts of the report highlighted by him in his submissions must be considered in the context of the report in its entirety.

77    The first point to note in that regard is that the report was not specifically about, and did not focus on, Mr V’landys alone. The overriding focus of the report was the integrity of the horse racing industry generally in relation to the welfare of retired racehorses. That is the way the report was introduced by Ms Sales. That introduction was a fair summary of the report. The particular issue which was addressed in the report was “wastage”; the fact that many retired racehorses were ending up being slaughtered in abattoirs or knackeries. The report specifically featured, in that context, the Meramist abattoir in Queensland and two knackeries in New South Wales. The report explored the industry rules or regulations that were supposed to address that issue and whether those rules and regulations were being properly policed.

78    It was in the context of the identified problem of “wastage” that the footage of Mr V’landys at an industry event was included about 20 minutes in to the report. As was noted in the summary of the report referred to earlier, that footage was introduced by Ms Meldrum-Hanna saying: “Industry leaders led by Racing New South Wales CEO, Peter V’landys, mounted a PR offensive introducing a raft of new animal welfare measures”. That was the first mention of Mr V’landys in the report. It was also in that context that Mr V’landys was interviewed by Ms Meldrum-Hanna. The first part of the interview which was included in the report was footage of Mr V’landys referring to the welfare measures that had been taken by Racing NSW. The next part of the interview was Mr V’landys answering a question about the policing of one of the rules introduced by Racing NSW.

79    Another important contextual consideration in relation to the footage of Mr V’landys’ interview has already been noted. Mr V’landys’ first appearance in the report was preceded by footage of interviews that Ms Meldrum-Hanna had conducted with Professor McGreevy and Mr Celotto, as well as by some of the footage of horses being mistreated and slaughtered in the Meramist abattoir in Queensland. Both Professor McGreevy and Mr Celotto asserted that, contrary to what the racing industry was saying, large numbers of horses were ending up in abattoirs and knackeries. As has already been noted, the footage of the mistreatment of and slaughter of horses was unquestionably confronting, disturbing and distressing. As Ms Sales had noted at the outset, lovers of the sport or horse racing and “animal welfare advocates” would be “enraged” by the footage. The same could be said for the ordinary reasonable viewer.

80    The footage of the interviews with Professor McGreevy and Mr Celotto and, more significantly, the confronting footage from the Meramist abattoir, very much set the scene for Mr V’landys’ first appearance in the report. It would be fair to say that a negative impression of the racing industry generally had already been conveyed before Mr V’landys appeared.

81    As was also noted earlier, Ms Meldrum-Hanna’s interview with Mr V’landys was not played from beginning to end in the report. Rather, the interview was broken up into extracts and interspersed between, amongst other things, footage of parts of the interviews with Professor McGreevy and Mr Celotto and, more significantly, the graphic footage of the treatment of horses at two knackeries in New South Wales. It would also be fair to say that the statements made by Professor McGreevy and Mr Celotto tended to undermine or cast doubt about what Mr V’landys was recorded as having said.

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.

84    Having dealt with these general contextual considerations, it is necessary now to consider the specific imputations alleged by Mr V’landys.

Imputation 1: Mr V’landys, as Chief Executive Officer of Racing NSW, callously permitted the wholesale slaughter of thoroughbred horses

85    The first imputation that Mr V’landys alleged was conveyed by the report was that he, “as Chief Executive Officer of Racing NSW, callously permitted the wholesale slaughter of thoroughbred horses”.

86    This imputation has, at least implicitly, two essential elements. The first is that Mr V’landys knew that a large number of racehorses, including those from New South Wales, were being slaughtered at the Meramist abattoir in Queensland and in knackeries in New South Wales as depicted in the report. The second is that, despite knowing about the slaughter of racehorses at those facilities, he deliberately and insensitively allowed it to continue. These two elements are implicit in the statement that Mr V’landys “callously permitted” the “wholesale slaughter” of racehorses. Mr V’landys could obviously only be said to have “callously permitted” the slaughter of racehorses if he actually knew that it was occurring.

87    The problem for Mr V’landys in demonstrating that this imputation was conveyed is that nowhere in the report is it explicitly stated that he knew that large numbers of racehorses were being slaughtered at the Meramist abattoir in Queensland, or the two knackeries featured in the report, or in indeed in any abattoir or knackery. Nor can it be concluded, in all the circumstances, that the report inferred, implied or imputed that Mr V’landys possessed any such knowledge.

88    I do not accept that anything said or shown in the report, or the report in its entirety, would have conveyed to the ordinary reasonable viewer or reader that Mr V’landys knew about the slaughter of racehorses as revealed in the report, or that he callously permitted that to occur despite that knowledge. Indeed, the overall impression and message that was conveyed by the report was that the slaughter of racehorses at abattoirs and knackeries was occurring, not because Racing NSW and the other horse racing regulators knowingly permitted it to occur, but because the rules and regulations that had supposedly been put in place to stop it from occurring were inadequate and ineffective and were not being effectively policed. That allowed unscrupulous elements of the industry, and unscrupulous operators of some abattoirs, to exploit the system. The result was that the regulators did not know that the slaughter of thoroughbreds was occurring; that they were, to put it in colloquial terms, asleep at the wheel.

89    Mr V’landys’ contention that the report inferred or implied that he knew that large numbers of racehorses were being slaughtered at the relevant abattoir and knackeries was substantially based on the proposition that the ordinary reasonable viewer would have believed or understood that, like Professor McGreevy and Mr Celotto, Mr V’landys had seen the footage from the Meramist abattoir and the knackeries. I do not accept that proposition.

90    The report included images of both Professor McGreevy and Mr Celotto viewing the relevant footage and expressing their views about it. The report does not, however, include any images of Mr V’landys viewing the footage. More significantly, the nature and tenor of the questions that were put to Mr V’landys by Ms Meldrum-Hanna, and the nature and tenor of Mr V’landys’ responses to those questions, make it quite obvious that he had not seen the footage.

91    As the summary of the report given earlier indicated, at the very end of the report, after all the footage from the abattoir and knackeries had been shown, Ms Meldrum-Hanna put a question to Mr V’landys in hypothetical terms: “I’m going to give you a worst-case scenario and you tell me how bad this scenario would be”. Ms Meldrum-Hanna then told Mr V’landys that the ABC had been “told” that New South Wales racehorses were being sent interstate for slaughter and were also being “knackered” in New South Wales. She did not say that the ABC had video footage of racehorses being slaughtered in an abattoir, or being transported to knackeries. Ms Meldrum-Hanna then asked Mr V’landys: “[i]f that is happening, what is your response?” The hypothetical nature of Ms Meldrum-Hanna’s question was entirely inconsistent with Mr V’landys having been shown, or having seen, any of the video footage of the slaughter of horses at the Meramist abattoir or the footage relating to the knackeries.

92    Mr V’landys’ response to that question was also entirely inconsistent with any suggestion that he had seen that footage. His response was that: “[i]f it is happening, we will put the full force of the law against them”. If Mr V’landys had seen the relevant footage, it is almost inconceivable that he would have responded in terms qualified by the words “[i]f it is happening”. There could be no denying the footage. The ordinary reasonable viewer would have understood that to be the case and understood that Mr V’landys had not seen the footage.

93    There was a similar exchange earlier in the report. After Mr V’landys had responded to a question by stating, in effect, that the data available to him indicated that “zero” horses in New South Wales were ending up in knackeries or abattoirs, Ms Meldrum-Hanna put to Mr V’landys: “[w]hat if I told you that’s not correct” and that there “are New South Wales horses ending up at a knackery and an abattoir”. The tenor of that exchange is again inconsistent with Mr V’landys having seen the video footage from that abattoir and knackery. It is difficult to comprehend how or why Mr V’landys would or could possibly have so confidently asserted that no horses were being slaughtered at abattoirs and knackeries if he had seen the footage. It would also hardly have been necessary for Ms Meldrum-Hanna to tell Mr V’landys that New South Wales horses were ending up in an abattoir and knackery if she had shown him the footage.

94    Mr V’landys’ response to Ms Meldrum-Hanna’s revelation was also inconsistent with him having seen the relevant footage. His response was: “[w]ell, if there is, it means that the people have acted against the rules of racing and if we have evidence of that, they will be dealt with pretty severely”. The video footage obviously amounted to evidence that it was occurring. If there was any suggestion that Mr V’landys had seen the footage, the ordinary reasonable viewer would no doubt have wondered why Ms Meldrum-Hanna would not have responded by saying something like: “well, you have just seen evidence that it is happening”. At no point during any of the extracts of the interview between Ms Meldrum-Hanna and Mr V’landys which appeared in the report is there any reference to the existence of video footage of racehorses being slaughtered in an abattoir, or racehorses being transported to knackeries.

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.

98    The suggestion that the report conveyed that Mr V’landys knew that New South Wales racehorses were being slaughtered at the Meramist abattoir and the two knackeries was also, at least to a certain extent, belied by the concluding observations of Ms Sales. Ms Sales noted that, following the interview with Racing NSW, which was obviously a reference to the interview with Mr V’landys, the ABC had “provided the regulator with further information regarding the knackeries and the abattoir mentioned in this program and also the names of the racehorses featured tonight”. That, of course, would have been an utterly pointless gesture and would have made no sense if, as Mr V’landys contended, the report had conveyed that Mr V’landys and Racing NSW already knew that the “wholesale slaughter” of racehorses was occurring and had already seen the video footage of that occurring.

99    It may be accepted that the juxtaposition of Mr V’landys’ confident assertions, based mainly on the “rules of racing”, that New South Wales racehorses were not being slaughtered in abattoirs or knackeries, with the powerful and disturbing undercover video footage which demonstrated quite to the contrary, tended to make Mr V’landys’ assertions appear somewhat naïve, misplaced and perhaps even foolish. The same could perhaps be said about the interweaving of Mr V’landys’ assertions with the claims to the contrary made by Professor McGreevy and Mr Celotto.

100    The overriding impression, however, was not that Mr V’landys in fact knew that the “wholesale slaughter” of racehorses was occurring and was lying when he said that it was not occurring. Rather, 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.

101    The mere fact that the report showed that Mr V’landys’ confident assertions that no New South Wales racehorses ended up in abattoirs were wrong and that the rules and regulations that he, as Chief Executive Officer of Racing NSW, had put in place had been ineffective to stamp out that practice, does not mean that the report conveyed or implied that Mr V’landys had “callously permitted the wholesale slaughter of thoroughbred horses”. While the report clearly conveyed that the rules and regulations that Mr V’landys had championed had been shown to be inadequate and ineffective, that is not to say that it conveyed that Mr V’landys “permitted” the slaughter of racehorses in abattoirs and knackeries.

102    “Permitted” suggests or implies that the practice was knowingly allowed to continue. For the reasons already given, the report would not have conveyed to the ordinary reasonable viewer that Mr V’landys knew that the wholesale slaughter of racehorses was occurring. Nor could it be said that the report conveyed that Mr V’landys allowed that practice to continue. It is one thing to say that the rules and regulations that had been put in place had been shown to be inadequate and ineffective. It is another to say that the practice was allowed or permitted to continue.

103    Nor could it be said that, by conveying that the rules and regulations put in place by Racing NSW had been ineffective, the report conveyed that Mr V’landys had acted in any way “callously”, which implies that Mr V’landys was completely insensitive to the slaughter of racehorses. I am not persuaded that the report conveyed that Mr V’landys was insensitive to the slaughter of racehorses. Rather, it conveyed him to be a committed and staunch defender of the sport who had at least taken some steps in an attempt to deal with the problem of wastage and the welfare of retired thoroughbreds. While his overconfident assertions concerning the efficacy of the rules he had put in place and his staunch defence of the horse racing industry may have been viewed negatively and with some derision by the ordinary reasonable viewer, given that his assertions had been shown to be wrong and his defence of the industry difficult to sustain, it does not follow that he was portrayed as having acted “callously”.

104    Mr V’landys’ submission that the report depicted him as the “face of the industry” and that he was portrayed as the real guilty party in respect of the industry’s failings in respect of the slaughter of racehorses also cannot be accepted. It is neither a fair nor accurate characterisation of the report for a number of reasons.

105    First, while Mr V’landys was certainly the only person from any of the state-based thoroughbred regulators who was interviewed for the purposes of the report, it was made abundantly clear that that was because other regulators, including Racing Queensland and Racing Australia, had said that they were not available for interviews. It should also be noted that Mr Dumesny, the Chief Executive Officer of Harness Racing NSW, was also interviewed and that an extract from that interview was included in the report. In all the circumstances, the report would not have led the ordinary reasonable viewer or reader to equate Mr V’landys with the industry. Rather, it conveyed that Mr V’landys was the one regulator, aside from Mr Dumesny, who was prepared to front the camera and be interviewed for the report. The ordinary reasonable viewer or reader would have viewed that as a positive, not a negative, reflection on Mr V’landys.

106    Second, and perhaps more significantly, it would also be fair to say that the regulators, or racing industry leaders, including Mr V’landys, were not portrayed as being the main guilty parties insofar as the slaughter of retired racehorses was concerned. It is true, as has already been discussed at length, that the report conveyed that the attempts by the regulators to deal with the issue of wastage had been shown to be ineffective and their claims to the contrary had been shown to be wrong and misplaced. The real ‘villains’ identified by the report, however, were the individuals who operated, worked at, or were associated with the abattoirs and knackeries which featured in the report. It was the workers in the Meramist abattoir who were shown to engage in gratuitous and unspeakable cruelty to horses. It was the “doggers”, those who operated and profited from the slaughter of horses for the greyhound racing industry, or the pet food industry generally, who were shown to have acted callously and cruelly towards former racehorses. It was the operators of the abattoirs and knackeries who were shown to be unwilling to appear and answer Ms Meldrum-Hanna’s questions about the practices in which they were engaged. Those were the people who the report really held up to scorn.

107    It would also be fair to say that, insofar as blame in respect of the slaughter of racehorses was directed at the racing industry generally, that blame was primarily directed at the unscrupulous individuals who acted contrary to the rules and regulations that had been put in place, at least in New South Wales, and who had lied to the regulators. Mr V’landys candidly conceded that the efficacy of the rules that had been put in place by Racing NSW relied, and based its data, to a significant extent, on the honesty and integrity of people in the industry. According to him, there was “always going to be an element that do the wrong thing” and “[n]o matter how good you are as an administrator, no matter how solid your systems and processes are, you’ll never eradicate” that element. The report conveyed that it was that element of the industry which was largely responsible for the callous slaughter of former racehorses. To the extent that the regulators were to blame, it was for failing to effectively stamp out that element.

108    I am not persuaded, in all the circumstances, that the first imputation alleged by Mr V’landys was in fact conveyed by the report. I am not satisfied that the report conveyed, or would have conveyed, to the ordinary reasonable viewer or reader that Mr V’landys, as Chief Executive Officer of Racing NSW, callously permitted the wholesale slaughter of thoroughbred horses.

Imputation 2: Mr V’landys, because of his indifference to their suffering, ignored the cruelty to which thoroughbred horses were subjected in a Queensland abattoir

109    The second imputation that Mr V’landys alleged was conveyed by the report was that, “because of his indifference to their suffering, [he] ignored the cruelty to which thoroughbred horses were subjected to [sic] in a Queensland abattoir”.

110    As was the case with the first imputation, knowledge is an essential element of this imputation. The report would not convey to the ordinary reasonable viewer or reader that Mr V’landys was indifferent to the suffering of thoroughbred horses, or ignored the cruelty to which they were subjected in a Queensland abattoir, unless it conveyed that Mr V’landys not only knew that thoroughbred horses were being slaughtered at the Meramist abattoir, but also that they were subjected to cruelty prior to, or while they were, being slaughtered at that abattoir.

111    Mr V’landys’ contention that the report conveyed this imputation rested almost entirely on the proposition that the report conveyed that he had seen or been shown the covert video footage of cruelty to horses at the Meramist abattoir that formed part of the report. For the reasons given in the context of the first imputation, I am not satisfied that the report conveyed that Mr V’landys had been shown or had otherwise viewed the relevant video footage. Indeed, the ordinary reasonable viewer of the report would have appreciated and understood that Mr V’landys had not seen the footage.

112    In addition to the reasons given in the context of the first imputation, it should perhaps be added that the report clearly conveyed that the cruelty to which horses were subjected at the Meramist abattoir occurred “[b]ehind closed doors”, as Ms Meldrum-Hanna noted in her concluding remarks, and was well hidden from public or regulatory scrutiny. The report clearly indicated that the cruelty and mistreatment of horses at that abattoir had only been uncovered as a result of the use of “covert vision” acquired by undercover investigators who had managed to infiltrate the abattoir. There could be no basis for the ordinary reasonable viewer to believe that Mr V’landys was aware of that cruelty unless the report conveyed that Ms Meldrum-Hanna had shown him that video footage. For the reasons already given, I am not persuaded that the report conveyed that Mr V’landys had been shown or had otherwise seen the video footage.

113    It should finally be noted that the ordinary reasonable viewer would have appreciated, from the report, that Mr V’landys was the Chief Executive Officer of Racing NSW and that his responsibilities therefore related primarily to thoroughbred horses who were, or had been, bred, trained or raced in New South Wales. It was not suggested that his duties or responsibilities extended in any way to racehorses bred, trained or raced in Queensland, let alone the regulation of abattoirs in Queensland. In those circumstances, and given that the Meramist abattoir was located in Queensland, the ordinary reasonable viewer would have understood that it was unlikely that Mr V’landys would have been aware of the cruel practices at the Meramist abattoir unless they had been specifically drawn to his attention by the ABC, or Ms Meldrum-Hanna, showing him the covert footage that they had obtained. For the reasons already given, I am not satisfied that the report conveyed that Mr V’landys had been shown the covert footage. In those circumstances, I am not satisfied that the report conveyed that Mr V’landys knew that thoroughbred horses, including those that had raced or been registered in New South Wales, had been or were being mistreated and slaughtered in the Meramist abattoir.

114    It follows that I am not satisfied that the report conveyed, or would have conveyed, to the ordinary reasonable viewer that Mr V’landys was indifferent to the suffering of, or ignored the cruelty to, thoroughbred horses at an abattoir in Queensland.

Imputation 3: Mr V’landys dishonestly asserted that no racehorses were sent to knackeries for slaughter in New South Wales when he knew that was untrue

115    The third imputation that Mr V’landys alleged was conveyed by the report was that he “dishonestly asserted that no racehorses were sent to knackeries for slaughter in New South Wales when he knew that was untrue”.

116    This imputation has two essential elements. The first is that Mr V’landys had asserted that no racehorses were sent to knackeries in New South Wales. The second is that that assertion by Mr V’landys was dishonest because he knew it to be untrue.

117    I am not persuaded that the report conveyed, or would have conveyed, either of those two things to the ordinary reasonable viewer.

118    As for the first element, as has already been noted, when questioned by Ms Meldrum-Hanna about how many New South Wales horses were ending up at a knackery or abattoir, Mr V’landys replied “zero”. Importantly, however, Ms Meldrum-Hanna’s questioning which prompted that response included the question: “[w]hat is your data telling you here?” Thus, Mr V’landys’ assertion was not that no New South Wales racehorses were ending up in a knackery or abattoir, but that his “data” was telling him that no New South Wales racehorse was ending up in a knackery or abattoir. That was reaffirmed by the fact that, immediately after Mr V’landys made that statement, the report included a statement by Mr Celotto concerning the data produced by the regulators.

119    It might perhaps be said that the ordinary reasonable viewer would be unlikely to have appreciated the nuance in this particular exchange between Ms Meldrum-Hanna and Mr V’landys. That would perhaps be a persuasive consideration but for the fact that subsequent exchanges between Ms Meldrum-Hanna and Mr V’landys make it tolerably clear that Mr V’landys’ confident assertion of “zero” was based on Racing NSW’s systems or processes.

120    Perhaps more significantly, in his subsequent exchanges with Ms Meldrum-Hanna, Mr V’landys qualified his initial unequivocal response by noting that Racing NSW’s systems and processes were fallible; that if racehorses were ending up in knackeries, that meant that “people have acted against the rules of racing” and that no matter how good Racing NSW’s systems were, they were not going to prevent the small number of people in the industry who were intent on doing the wrong thing from breaking the rules. Elsewhere in the report, Mr V’landys told Ms Meldrum-Hanna that Racing NSW had to rely on the information given to it and does not have the resources to check on every horse.

121    In those circumstances, I am not persuaded that the report conveyed that Mr V’landys had unequivocally asserted that no racehorses were sent to knackeries for slaughter in New South Wales. Rather, it conveyed that Mr V’landys believed, based on the data available to him, that no racehorses were sent to knackeries for slaughter in New South Wales, but that he had conceded that the data was fallible.

122    In any event, even if the report conveyed to the ordinary reasonable viewer that Mr V’landys had asserted that no racehorses were sent to knackeries for slaughter in New South Wales, I am not persuaded that it conveyed that Mr V’landys knew that to be untrue and was therefore being dishonest. Rather, what it conveyed was that the data available to Mr V’landys was flawed, that Mr V’landys’ confidence in Racing NSW’s systems and processes was misplaced and that, while Mr V’landys’ statements based on the systems and processes were wrong, that was because the systems and processes were fallible and ineffective, not because Mr V’landys was being dishonest and untruthful.

123    Mr V’landys’ contention that the report conveyed that he knew that his assertion that no New South Wales horses were ending up in abattoirs or knackeries was untrue was based on the proposition that the report conveyed that he knew that racehorses were being slaughtered at the knackeries featured in the report. That proposition was in turn primarily based on the contention that the report conveyed that Mr V’landys had seen the video footage that had been taken at, or in the vicinity of, those knackeries. For the reasons already given in some detail, I am not satisfied that the report would have conveyed to the ordinary reasonable viewer that Mr V’landys had seen that footage.

124    Nor did the report otherwise convey that Mr V’landys positively knew that New South Wales racehorses were being slaughtered in knackeries. As discussed in detail earlier in these reasons, the overriding message and impression conveyed by the report was that those rules and regulations that the regulators in the racing industry, in particular Racing NSW, had put in place to deal with the problem of wastage were inadequate and ineffective and were not being properly policed. The result was that, unbeknownst to the regulators, including Mr V’landys, unscrupulous participants in the industry were able to continue to supply racehorses to abattoirs and knackeries and the abattoirs and knackeries were able to continue to profit from that trade. In Ms Meldrum-Hanna’s own words, the report conveyed that horses were “falling through the regulator’s systems of traceability”.

125     It should finally be noted that, as discussed in the context of the first imputation, 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.

126    In all the circumstances, I am not persuaded that the report would have conveyed to the ordinary reasonable viewer that the regulators, least of all Mr V’landys, knew that their rules and regulations were routinely being breached or knew that racehorses continued to be slaughtered in knackeries. In those circumstances, I am not persuaded that the report would have conveyed to the ordinary reasonable viewer or reader that the statement or statements made by Mr V’landys in answer to Ms Meldrum-Hanna’s questions about whether New South Wales racehorses were being sent to knackeries were knowingly untrue or dishonest.

127    It follows that I am not persuaded that this imputation was conveyed by the report.

Imputation 4: Mr V’landys dishonestly asserted that Racing NSW cared about the welfare of thoroughbred horses and took adequate steps to protect their welfare when he knew that was untrue

128    The fourth imputation that Mr V’landys alleged was conveyed by the report was that he “dishonestly asserted that Racing NSW cared about the welfare of thoroughbred horses and took adequate steps to protect their welfare when he knew that was untrue”. Like the first three alleged imputations, this imputation hinges on the contention that the report conveyed that statements made by Mr V’landys to Ms Meldrum-Hanna were knowingly untrue and dishonest.

129    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.

130    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.

131    As has already been pointed out, however, the serious contention or allegation that Mr V’landys knew that large numbers of New South Wales racehorses were being slaughtered in abattoirs and knackeries in New South Wales was never squarely or explicitly referred to in the report. Nor did Ms Meldrum-Hanna ever put it to Mr V’landys. Nor was it suggested or put to Mr V’landys that his assertions to the effect that he and Racing NSW cared about the welfare of racehorses and had taken adequate steps to protect them were untrue and therefore disingenuous. 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.

132    That consideration, coupled with the fact that, for the reasons already given, I am not satisfied that the report conveyed that Mr V’landys knew that New South Wales racehorses continued to be slaughtered in large numbers in abattoirs and knackeries, leads me to conclude that this final imputation was not conveyed by the report.

Conclusion in relation to the imputations

133    I am not persuaded that any of the four imputations alleged by Mr V’landys, or any imputations not differing in substance from them, were conveyed by the report.

134    There could be no doubt that the report portrayed the racing industry in a bad light when it came to the welfare of retired thoroughbred racehorses. The report clearly conveyed to the ordinary reasonable viewer that such steps as the industry had taken to protect retired racehorses from ending up in abattoirs and knackeries were inadequate and ineffective. The powerful and dramatic nature of the report, including the shocking images of cruelty to former racehorses at the hands of abattoir and knackery workers, would have been deeply embarrassing and concerning for the industry as a whole. Given that Mr V’landys was a prominent figure in, and a staunch defender of, the racing industry, there could be little doubt that Mr V’landys would himself have been upset and embarrassed by the report.

135    It does not follow, however, that he is entitled to succeed in his defamation action. That is because he pleaded the meanings or imputations upon which he relied. Those pleaded imputations confined the questions of meaning for determination: Wing at [17]. To succeed in his action for defamation, Mr V’landys was required to demonstrate that the report conveyed the meanings or imputations that he alleged it conveyed, or conveyed meanings or imputations that did not differ in substance from them. He has failed in that endeavour. For the reasons that have been given, the report did not convey any of the pleaded imputations or any imputations that did not differ in substance from them.

DAMAGES, including aggravated damages and malice

136    Given the findings that I have made concerning the imputations, it is strictly unnecessary for me to make any findings concerning damages, including the allegations concerning aggravated damages and malice. As Mr V’landys has failed to demonstrate that the report conveyed any of the defamatory imputations pleaded by him, his case must fail and the question of damages does not arise.

137    There is also little point in me expressing any conclusions, even tentative conclusions, concerning damages. If Mr V’landys successfully appeals my judgment or orders and the Full Court finds that some or all of the pleaded imputations were conveyed by the report, the matter would almost inevitably have to be remitted to me in any event. That is because the appropriate award of damages would most likely depend to a large extent on which of the imputations were found by the Full Court to have been conveyed. If I expressed a conclusion about the appropriate award of damages on the hypothesis that the Full Court may find that all four imputations were conveyed, the matter would need to be remitted to me if the Full Court ultimately found that, for example, only one or two of the imputations were in fact conveyed.

138    It is, however, appropriate for me to consider and make findings concerning Mr V’landys’ claim that, had he demonstrated that he had been defamed as alleged, he was entitled to aggravated damages. The main allegation made by Mr V’landys in support of that claim was that the publication was actuated by malice. That serious allegation occupied much of the hearing time and should be dealt with and determined. It is only fair that I address it.

139    There is also some utility in briefly addressing some issues that arose in relation to Mr V’landys’ case in relation to general damages and hurt to feelings. Those issues revolved around the fact that Mr V’landys had not himself viewed the program until it was played during the trial. The ABC and Ms Meldrum-Hanna submitted, in essence, that Mr V’landys’ evidence concerning the hurt to his feelings caused by the report was essentially based on what he had been told about the report, and the reactions of others to it, not on the report itself. The difficulty was that what Mr V’landys had been told about the report was, so it was contended, inaccurate. The ABC and Ms Meldrum-Hanna also contended that Mr V’landys’ evidence concerning the hurt to his feelings after he finally viewed the report during the trial was hopelessly unreliable.

140    It is appropriate to deal firstly with the question of malice.

The allegation of malice

141    Mr V’landys’ allegation of malice on the part of the ABC and Ms Meldrum-Hanna hinged on five key factual allegations. The evidence relied on by Mr V’landys in support of those allegations was mostly documentary. Ms Meldrum-Hanna did not give evidence. Nor did any other officer or employee of the ABC. Importantly, Mr V’landys’ case also depended on the proposition that he had knowledge of the malice of the ABC and Ms Meldrum-Hanna.

142    The first allegation was that the ABC and Ms Meldrum-Hanna “actively deceived” Mr V’landys as to their purpose in seeking an interview with him. The evidence relied on by Mr V’landys in support of that allegation was an email that an ABC producer, Ms Amy Donaldson, sent to Mr V’landys’ executive assistant on 11 October 2019. That email was, relevantly, in the following terms:

Dear Kathy,

With the annual Spring Racing season underway, the ABC’s 7:30 program is producing a story analysing the animal welfare reforms and integrity measured [sic] introduced by racing regulators since 2016/17.

By way of background this includes Racing NSW’s 1% animal welfare fund; Racing NSW and Racing ACT’s jurisdiction-first LR114; and Racing Australia’s traceability rule - all of which were introduced in 2016/17.

Importantly, the racing industry’s traceability systems were a key focus of the recent public hearings of the Senate Standing Committee into the Feasibility of a National Horse Traceability Register For All Horses, conducted in September, at which Racing NSW gave information about its traceability measures, and Racing Australia also provided data confirming that less than 1% of horses have ended up at abattoirs/knackeries and 1% at livestock auctions nationally, an[d] 4% have died of natural causes. Academics believe these figures could be higher, and that there is a lack of publicly available data.

The Senate Committee hearings follow Mr Peter V’Landys’s [sic] public commitments to the traceability and rehoming of NSW horses, and the ongoing integrity of racing.

With the centrepiece Everest and Melbourne Cup approaching, and the corresponding national interest in racing, we seek a sit-down interview with Mr V’Landys to discuss the areas mentioned above and the vision for the Australian racing industry. We’ve also sought an interview with state regulating bodies Racing Victoria and Racing Queensland as well as Racing Australia, mindful that it may be more convenient for the industry to be represented by the peak national body Racing Australia.

…

143    The remainder of the email discussed arrangements for an interview time. Mr V’landys’ evidence was that he agreed to the interview based on his assumption that what had been said about the purpose of the interview in the email was accurate and honest. He believed that the interview would give him an opportunity to explain what he believed were the significant advances that had been made by Racing NSW in equine welfare and his vision for the future in that regard.

144    Mr V’landys contended that Ms Donaldson’s email was misleading for three reasons; first, because it misrepresented the nature and content of the proposed report; second, because it failed to honestly disclose the true nature of the report, which was said to be a sensational expose of cruelty to racehorses being sent to abattoirs and knackeries for slaughter; and third, because it failed to disclose to him that the ABC and Ms Meldrum-Hanna had in its possession covert video footage of cruelty to horses at the Meramist abattoir in Queensland.

145    The second allegation was that the ABC and Ms Meldrum-Hanna “actively deceived” him by: first, failing to disclose to him at any point that it had in its possession the covert video footage of cruelty to horses at the Meramist abattoir in Queensland; and second, by failing to show that footage to him despite his request to be shown any evidence of cruelty to horses that may have been in the ABC’s and Ms Medrum-Hanna’s possession.

146    Mr V’landys relied, in support of this allegation, on the ABC’s and Ms Meldrum-Hanna’s admission that a conscious decision had been made by senior officers of the ABC not to show Mr V’landys the video footage taken at the Meramist abattoir and not to inform him of the existence of that footage. He also relied on the fact that at no point during his interview with Ms Meldrum-Hanna, a full transcript of which was in evidence, did she show him the Meramist footage, or tell him of its existence, even when he responded to some of Ms Meldrum-Hanna’s questioning by, in effect, requesting that Ms Meldrum-Hanna show him any evidence of cruelty to horses that she or the ABC possessed.

147    The third allegation was that the “editing of the program and the manner in which [it] was composed were dishonest”. Mr V’landys contended, in that regard, that the ABC and Ms Meldrum-Hanna failed to include in the report various statements that he had made during his interview to the effect that he and Racing NSW had no power or jurisdiction in respect of the treatment of horses in other states. He also relied on the fact that the report as broadcast “intercut” parts of his interview with the “sickening” footage of cruelty to horses so as to give the impression, contrary to the truth, that he was responsible for, or condoned, or had callous disregard for, that cruelty.

148    The fourth allegation was that the ABC and Ms Meldrum-Hanna intended to convey the pleaded imputations to viewers of the report knowing that they were false.

149    The fifth allegation was that the ABC and Ms Meldrum-Hanna, knowing that the “composition” of the report would convey the pleaded imputations, failed to give Mr V’landys the opportunity to deny, dispute or contradict those imputations.

150    Before addressing these allegations and whether they support the allegation of malice, it is useful to briefly outline the relevant principles concerning malice. In the particular circumstances of this case, only a brief outline is warranted.

Malice – Relevant principles

151    The issue of malice ordinarily arises in defamation proceedings in the context of the defence of qualified privilege. That is because a defence of qualified privilege is defeated if it is proved that the publication of the defamatory matter was actuated by malice: s 30(4) of the Defamation Act 2005 (NSW). The issue of malice can, however, also arise in the context of aggravated damages, but generally only if the plaintiff knew that the publication was actuated by malice on the part of the publisher and that affected the harm sustained by the plaintiff: s 36 of the Defamation Act; Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 at 111.

152    Malice, in the context of the law of defamation, refers to the circumstance or situation where a defamatory publication is made for an improper purpose. To establish malice, it is necessary to prove not only that the publisher’s motive or purpose in making the publication was improper, but also that the improper motive actuated the making of the publication: Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [75].

153    Proof that the publisher knew that the defamatory imputations were false is almost invariably sufficient to establish an improper motive: Roberts v Bass at [76]. That is because a publisher who “knowingly publishes false and defamatory material almost certainly has some improper motive for doing so”: Roberts v Bass at [77]. Mere proof of the publisher’s “ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is, however, not sufficient to establish malice” unless the evidence or the publication also shows that the “ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed ... and actuated the publication”: Roberts v Bass at [76] (emphasis in original).

154    An allegation of malice is essentially an allegation of dishonesty and thus must not only be properly particularised, but must also be established by cogent evidence commensurate with the seriousness of the charge: Hughes v Risbridger [2009] EWHC 3244 (QB) at [15] and Rackham v Sandy [2005] EWHC 482 (QB) at [17], referred to with approval in Chau v Fairfax at [329]; see also s 140(2) of the Evidence Act 1995 (Cth).

Was the publication of the report actuated by malice?

155    It is convenient to deal firstly with the fourth and fifth allegations advanced by Mr V’landys in relation to malice. They hinge on the proposition that the ABC and Ms Meldrum-Hanna intended to convey the pleaded imputations knowing that they were false. If Mr V’landys was able to demonstrate that to be the case, it would almost certainly establish an improper motive. It would not, in those circumstances, be necessary for Mr V’landys to identify or prove the particular improper motive which was said to actuate the publication.

156    In their answers to interrogatories, edited portions of which were tendered, both the ABC and Ms Meldrum-Hanna stated that they did not intend to convey any of the pleaded imputations. Mr V’landys submitted that an adverse inference should be drawn against the ABC and Ms Meldrum-Hanna because Ms Meldrum-Hanna did not give evidence: cf Jones v Dunkel (1959) 101 CLR 298. I am not persuaded, however, that any such inference should be drawn. Mr V’landys did not point to any specific evidence that Ms Meldrum-Hanna could have been expected to explain or contradict: Jones v Dunkel at 321. In any event, any inference that may be available from the fact that Ms Meldrum-Hanna did not give evidence cannot be employed to make up a deficiency of evidence, or convert conjecture or suspicion into inference: Jones v Dunkel at 312-313. Nor can it be inferred that any evidence that Ms Meldrum-Hanna could have given would necessarily have been damaging to her case, or the ABC’s case: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [232].

157    For the reasons already given, I am not satisfied that any of the pleaded imputations were conveyed by the report. Nor am I satisfied that the ABC or Ms Meldrum-Hanna intended to convey any such imputations. There was certainly no direct evidence that the ABC and Ms Meldrum-Hanna intended or believed that the report would convey any of the imputations alleged by Mr V’landys. Nor does the evidence as a whole support any inference to that effect. Indeed, the fact that, for the reasons given earlier, the report did not actually convey those inferences strongly supports the inference that the ABC and Ms Meldrum-Hanna did not intend that it would.

158    That then leaves the three allegations of deception and dishonesty on the part of the ABC and Ms Meldrum-Hanna.

159    It is perhaps not difficult to see or appreciate why Mr V’landys may, with the benefit of hindsight, feel somewhat aggrieved by the way he was treated by the ABC; in particular about the fact that he was not told about or shown the footage of the cruelty to horses at the Meramist abattoir. It is also not difficult to see why Mr V’landys may feel aggrieved about the report itself. It plainly did not present or portray the horse racing industry, of which he was a prominent participant, in a positive light. I am not, however, satisfied on the whole of the evidence that the ABC and Ms Meldrum-Hanna “actively deceived” Mr V’landys or acted dishonestly as alleged. “Actively deceived”, in this context, may be taken to mean deliberately or intentionally deceived. Perhaps even importantly, I am not satisfied that the evidence demonstrated or supported the inference or conclusion that the publication of the report was actuated by any improper motive or purpose on the part of the ABC and Ms Meldrum-Hanna.

160    As for Ms Donaldson’s email, it may perhaps be accepted that the content of the email may not have explicitly alerted Mr V’landys to the possibility that the report which was being produced by the ABC might not portray the racing industry in an altogether rosy light. There is nothing in the email to suggest that that the foreshadowed “story analysing the animal welfare reforms and integrity measured [sic] introduced by racing regulators” might turn out to be a story mainly about the “dark side” of the horse racing industry which exposed “what really goes on when racehorses’ lives end in knackeries and abattoirs”. By 11 October 2019, the ABC and Ms Meldrum-Hanna most likely knew or believed that the report, which would most likely include parts of the interview with Mr V’landys if he agreed to be interviewed, would present a predominantly negative picture of the horse racing industry and would include shocking images of cruelty to former racehorses. There was, however, no real hint of that in the email.

161    It may be inferred that the email was carefully drafted and crafted so as to ensure that it did not explicitly convey to Mr V’landys that the report was likely to portray the racing industry in a negative light, or that the report would include damning images of cruelty to horses. It is likely that Ms Donaldson appreciated that Mr V’landys was less likely to agree to be interviewed if he was made aware that the report was likely to be a damning exposé of the racing industry’s failure to prevent racehorses from ending up in abattoirs and knackeries. It does not necessarily follow, however, that the email misrepresented, or failed to honestly disclose, the true nature of the proposed report. Nor could it be described as deceptive or deceitful, as contended by Mr V’landys, let alone that the email’s author, or the ABC generally, intended to deceive Mr V’landys.

162    Upon close analysis, it becomes readily apparent that the email does not contain any false, misleading or deceptive statements. It was not false or misleading to say that the report would analyse the animal welfare reforms and integrity measures that had been introduced by racing regulators. The report did analyse those reforms and found them to be wanting. The email did not suggest that the analysis would necessarily be positive. The fact that Mr V’landys may have interpreted this description of the general nature of the proposed report as providing him with an opportunity to talk-up those reforms does not mean that the email was deceptive or misleading. The statements in the email about Racing NSW’s data concerning the number of racehorses that had ended up in knackeries or abattoirs were also not in any way false or misleading. Indeed, the email referred to the belief of academics that the figures “could be higher” and that there was a lack of publicly available data. That reference tended to indicate that the report was likely to question or challenge Racing NSW’s data. Mr V’landys ultimately conceded as much in his evidence, though he suggested that he had not read that part of the email carefully.

163    In all the circumstances, I do not accept that Ms Donaldson’s email misrepresented the nature and content of the proposed report, or failed to honestly disclose the true nature of the report. I do not accept that the ABC was obliged to provide different or more detailed information to Mr V’landys when inviting him to participate in an interview. I also do not accept that Mr V’landys was so naïve as to believe that the report for which he was to be interviewed would simply give him an open and unchallenged opportunity to sing the praises of the welfare reforms that Racing NSW had introduced. He must have had some appreciation that some of his and Racing NSW’s claims were likely to be challenged during the interview and in the report itself and that the ABC’s story about the racing industry may not have been entirely positive from his and Racing NSW’s perspective. He must have known that there were at least some risks involved in him participating in the interview. That no doubt explains in part why the interview was separately recorded by Racing NSW.

164    I am also not persuaded that the fact that the email did not disclose that the ABC possessed the Meramist footage amounted to deceit as contended Mr V’landys. The non-disclosure to Mr V’landys of the existence of the Meramist footage is discussed in more detail in the context of the next allegation. It suffices to note in this context that there was no suggestion or indication that Ms Meldrum-Hanna intended to ask Mr V’landys any questions about the Meramist footage, or any questions specifically about the Meramist abattoir, during the interview. Nor was he asked any such questions. Moreover, Mr V’landys himself contended that he and Racing NSW bore no responsibility for what went on in the Meramist abattoir, or had any power or jurisdiction to do anything about it. It is entirely unclear, in those circumstances, how it could be said that the failure to disclose the existence of that footage in the email inviting Mr V’landys to participate in an interview could be said to be deceitful. It may have been somewhat unfair not to disclose the existence of the Meramist footage if Mr V’landys was going to be asked about it in the interview, but he was not. Similarly, it may have been unfair not to disclose the footage if it was to be suggested in the report that Mr V’landys had seen it, or was somehow responsible for the appalling cruelty that was revealed by it. For the reasons that have already been given, however, the report did not convey any such matters.

165    In all the circumstances, I am not persuaded that the email was deceptive, or that the author of the email, or the ABC generally, “actively” or intentionally deceived Mr V’landys. Perhaps more significantly, as discussed in detail below, even if it was open to find that the email was deceptive in some respects, it does not follow that the ABC and Ms Meldrum-Hanna were relevantly actuated by any improper purpose.

166    As for the fact that Mr V’landys was not shown or told about the existence of the Meramist footage generally, either prior to or during the interview, or prior to the publication of the report, it is again perhaps not difficult to understand why Mr V’landys may have considered that to be unfair and unreasonable on the part of the ABC and Ms Meldrum-Hanna. There could be no doubt whatsoever that Mr V’landys would have been as shocked and appalled by that footage as any right-minded person would have been or was. During his interview with Ms Meldrum-Hanna, Mr V’landys said that he loved horses “more than anyone”. There is no reason to doubt that Mr V’landys loved horses and genuinely cared for their welfare. There also could be no doubt whatsoever that, had Mr V’landys been given the opportunity to view or respond to the Meramist footage, either before or during the interview, he would have soundly denounced it and expressed his abhorrence of such cruelty and mistreatment. He was not, however, given that opportunity. As a result, the report did not include Mr V’landys’ response to the Meramist footage.

167    It may, in all the circumstances, perhaps be accepted that it would have been fairer to Mr V’landys, and would have been productive of a fairer and more balanced report, at least from his perspective, if he had been shown the Meramist footage. It does not follow, however, that it was deceitful or dishonest for the ABC and Ms Meldrum-Hanna not to have disclosed the footage to Mr V’landys. That is so for a number of reasons.

168    First, as discussed in detail in the context of the alleged imputations, the report did not convey that Mr V’landys had been shown the Meramist footage. Nothing that was said or inferred in the report was rendered false, misleading or deceptive on account of Mr V’landys not having been shown the Meramist footage.

169    Second, as already noted, Mr V’landys was not asked any questions during the interview which directly related to the Meramist abattoir, or the cruel practices that were engaged in at that abattoir. It was not suggested or implied that Mr V’landys knew that racehorses from New South Wales were being sent to that, or any other, abattoir, or that he was in any way responsible for the cruelty displayed in the Meramist footage. Nothing that Mr V’landys was asked during the interview, and nothing that he said during the interview, was somehow rendered misleading or deceptive on account of him not having been shown the Meramist footage.

170    Third, Mr V’landys made it clear in various answers during the interview that he and Racing NSW had no power or jurisdiction in respect of the treatment of racehorses in other states, though he conceded that, despite Racing NSW’s best efforts, some horses were being taken over state borders. It was, in those circumstances, not unreasonable and not unfair to proceed with the interview and the report without telling Mr V’landys about the Meramist footage.

171    Fourth, Ms Meldrum-Hanna put to Mr V’landys during the interview that New South Wales racehorses were ending up at knackeries and abattoirs. On each occasion, Mr V’landys’ response was that if that was happening, it was contrary to the “rules of racing” and that if he or Racing NSW had evidence of that occurring, they would “put the full force of the law” against the people responsible and they would be “dealt with pretty severely.” While Mr V’landys may not have been shown the footage taken at the Meramist abattoir, his position in relation to the elements of the racing industry who may have been responsible for causing racehorses to be sent to abattoirs was, in any event, readily apparent.

172    Fifth, Mr V’landys’ contention that the failure of the ABC and Ms Meldrum-Hanna to show him the Meramist footage depended to a significant extent on the claim that he had made repeated requests to the ABC or Ms Meldrum-Hanna for them to show him whatever evidence of cruelty to racehorses they possessed. The problem for Mr V’landys, however, is that there is no evidence that he made any such requests, at least in clear or unequivocal terms. It is true that at certain points during his interview, when Ms Meldrum-Hanna put to him that the ABC had been told that racehorses from New South Wales were ending up in abattoirs and knackeries, Mr V’landys responded by saying that, if that was the case, “someone should show us some proof” or should “bring some proof”. Those statements could not, however, fairly be said to amount to repeated requests to be shown whatever evidence of cruelty to horses that the ABC and Ms Meldrum-Hanna possessed.

173    There was no direct evidence as to why the ABC and Ms Meldrum-Hanna decided not to show the Meramist footage to Mr V’landys. Nor is there any clear or obvious inference about the basis of that decision. It is perhaps not fruitful, in those circumstances, to speculate. One possibility is that it perhaps made for a more powerful and dramatic report. Another is that revelation of the existence of that footage prior to the interview may have resulted in Mr V’landys refusing to participate in an interview. In all the circumstances, however, it cannot be inferred that the intention behind the decision was to mislead or deceive Mr V’landys. The evidence, as a whole, does not support the drawing of such an inference, particularly given the gravity of the allegation.

174    More significantly, as will be discussed in more detail shortly, whatever may have been the basis or reason for the decision, the failure to disclose the Meramist footage to Mr V’landys does not, either alone or in conjunction with any other evidence, support an inference that the ABC and Ms Meldrum-Hanna were actuated by an improper motive.

175    The final allegation which was said to support a finding of malice was that the editing and composition of the program was dishonest. The basis of the allegation of dishonesty was twofold: first, the report did not include statements made by Mr V’landys during his interview in which he made it plain that he and Racing NSW had no power or jurisdiction in respect of the treatment of racehorses in other states or territories; and second, the juxtaposition in the report of extracts from Mr V’landys’ interview and the video footage containing images of cruelty to racehorses.

176    As for the first of those matters, it is true that the report did not include many of the statements Mr V’landys had made during the interview concerning the limitation of his and Racing NSW’s jurisdiction and power. That said, for the reasons that have already been touched on, the report did not convey that Racing NSW or Mr V’landys had any power or jurisdiction in respect of the treatment of horses in abattoirs outside New South Wales, including the Meramist abattoir. The report made it tolerably clear that there were separate regulators in each of the states and specific reference was made, in the context of the treatment of horses at the Meramist abattoir, to the regulator in Queensland, Racing Queensland, as well as the Queensland Racing Integrity Commission. The report specifically noted that neither Racing Queensland nor the Queensland Racing Integrity Commission had answered the ABC’s questions about racehorses being slaughtered at the Meramist abattoir.

177    The report did raise the question of how horses bred and domiciled in New South Wales ended up at an abattoir in Queensland. It was in that context that the report went on to consider the adequacy and efficacy of the rules that had been put in place in New South Wales that were intended to prevent horses being sent to abattoirs. The question, in those circumstances, was how New South Wales horses were able to be sent to abattoirs interstate.

178    In all the circumstances, the claims made by Mr V’landys concerning Racing NSW’s limited jurisdiction were sufficiently addressed in the report. It cannot, in those circumstances, be concluded that the failure to include in the report the entirety of the statements made by Mr V’landys on that topic during the interview was unfair, let alone dishonest.

179    As for the second of the matters relied on, the juxtaposition of parts of Mr V’landys’ interview with the footage of cruelty to horses was discussed in detail in the context of the question whether the report conveyed the alleged imputations. It may be accepted that the juxtaposition tended to convey an overall negative impression of Mr V’landys and the reliability or credibility of his assurances concerning the efficacy of the relevant rules that Racing NSW had put in place to prevent racehorses from ending up in abattoirs and knackeries. It also tended to present the material and the issues raised by it in a more dramatic and sensational way.

180    For the reasons essentially already given, however, it cannot be concluded, in all the circumstances, that the editing of the report, or the manner in which the material was presented in the report, was dishonest as contended by Mr V’landys. The material was not presented in such a way as to convey any false or misleading facts or impressions, particularly insofar as Mr V’landys was concerned. Nor can it be inferred that those responsible for the editing knew or intended that the editing would result in the report conveying any false or misleading facts or impressions. The fact that the material could have been presented in a different way which may not have portrayed Mr V’landys in such an unfavourable way does not mean that the editing was dishonest.

181    More fundamentally, it cannot be concluded that the editing of the report, or the terms of the email inviting Mr V’landys to attend the interview, or the fact that the Meramist footage was not disclosed to Mr V’landys, could support a finding that the report was actuated by an improper motive such as to constitute malice. That is the case whether those matters are considered individually, collectively or cumulatively.

182    Mr V’landys did not at any point identify exactly what was said to be the alleged improper motive. It appeared to be implicit in some of his submissions that his contention was that the ABC and Ms Meldrum-Hanna were actuated by an intention or motive to harm him, though that contention was never made explicit. An intention or motive to harm could, in some circumstances, be considered to be improper, particularly if there was no just or reasonable cause for the publication of the harmful material. The fundamental problem for Mr V’landys, however, is that the evidence as a whole simply does not support the drawing of any inference or conclusion that the ABC and Ms Meldrum-Hanna were motivated to publish the report by ill-will or an intention to harm Mr V’landys, let alone that that was their actuating motive or purpose.

183    Mr V’landys bore the onus of establishing malice on the part of the ABC and Ms Meldrum-Hanna. He failed to discharge that onus. Had it been necessary to do so, I would have rejected his contention that the ABC and Ms Meldrum-Hanna were actuated by malice, such as to warrant an award of aggravated damages.

Mr V’landys’ knowledge of malice on the part of the ABC and Ms Meldrum-Hanna

184    Another problem for Mr V’landys’ case in relation to malice is that it hinged on the contention, as pleaded, that he knew that the ABC and Ms Meldrum-Hanna had acted with malice. Even if, contrary to the conclusion that has been reached, the evidence did establish that the ABC and Ms Meldrum-Hanna “actively deceived” Mr V’landys, or acted dishonestly in the way contended, the evidence did not establish that Mr V’landys actually believed that the ABC and Ms Meldrum-Hanna had deceived him or acted dishonestly. More significantly, the evidence did not support the contention that Mr V’landys knew or believed that the ABC and Ms Meldrum-Hanna were actuated by an improper motive in publishing the report.

185    There was evidence that Mr V’landys corresponded with the ABC after the interview and after the broadcast of the report. Those exchanges were perfectly polite and courteous. Mr V’landys agreed that his emails after the report did not include any complaint about being deceived about the interview, or deceived into giving the interview. Nor did his emails include any accusation that the ABC or Ms Meldrum-Hanna had acted dishonestly. Ultimately, Mr V’landys agreed, in cross-examination, that he had no “problem” with Ms Donaldson or Ms Meldrum-Hanna and was not accusing them of dishonesty. He also agreed that he did not think that they were “out to get” him, though he said that he thought they were “running an activist agenda”. He also maintained that he “thought the interview would be completely different” and that not showing him the Meramist footage “wasn’t the appropriate thing to do”. That, however, is a very long way from the pleaded contention that Mr V’landys knew that the ABC and Ms Meldrum-Hanna had acted with, and were actuated by, malice.

Other particulars of aggravated damages

186    Mr V’landys relied on three additional particulars of aggravated damages.

187    The first of the additional particulars was that he knew that the pleaded imputations were false. It is at best questionable whether an applicant’s knowledge that the defamatory imputations were false provides a proper basis for the award of aggravated damages. Though it is unnecessary to decide the matter, the better view would appear to be that knowledge of the falsity of the imputations is a matter that goes to general compensatory damages and would not alone be sufficient to justify an award of aggravated damages. Indeed it has, in relatively recent times, been held that “mere knowledge by the [applicant] that an imputation was false cannot (without more) found an entitlement to aggravated damages”: Barrow v Bolt [2013] VSC 226 at [10]-[24]; Flegg v Hallett [2015] QSC 167 at [243]-[245]; see also Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [778]-[779]; Wagner v Nine Network Australia Pty Ltd [2019] QSC 284 at [217]-[228], [224]-[228] (appeal ground two, which related to the trial judge’s reasoning concerning the relevance of the knowledge of the falsity of the imputations to the question of aggravated damages was rejected on appeal in Nine Network Australia Pty Ltd v Wagner (2020) 385 ALR 328; [2020] QCA 221 at [175]-[179]).

188    The second of the additional particulars was that the report remained on the ABC’s website. The finding that the report did not convey the pleaded imputations justifies the continued publication of the report. Even if that finding is overturned on appeal and some of the imputations are found to have been conveyed, it is at best questionable whether the continued publication of the report would alone justify an award of aggravated damages in all the circumstances. That is because the defence of this proceeding by the ABC and Ms Meldrum-Hanna was undoubtedly bona fide and reasonable. The continued publication of the report in those circumstances could not be said to be “unjustifiable”, “improper” or “a lack of bona fides”: Triggell v Pheeney (1951) 82 CLR 497 at 514.

189    The third additional particular was that the ABC and Ms Meldrum-Hanna had not apologised. There is no dispute that the ABC and Ms Meldrum-Hanna had not apologised to Mr V’landys. That was no doubt because they believed that there was nothing to apologise for because they did not accept that the imputations alleged by Mr V’landys had been conveyed by the report. Their belief in that regard has been vindicated. Even if, as events transpire, the Full Court, on appeal, finds that some or all of the imputations were conveyed, it would not necessarily follow that an award of aggravated damages would be warranted on the basis of the absence of an apology. That is because, on just about any view, the defence advanced by the ABC and Ms Meldrum-Hanna was bona fide and not unreasonable.

General damages and hurt to feelings

190    An element of Mr V’landys’ general damages claim was that he was entitled to be compensated for injured feelings, including the hurt, anxiety and sense of outrage that he felt as a result of the publication of the report. Mr V’landys’ case in relation to the injury to his feelings was, however, complicated by the fact that, not only did he not view the report when it was first broadcast, but he deliberately refrained from viewing the report thereafter. He first saw the report in its entirety when it was played in Court at the trial shortly before he gave evidence. Much of Mr V’landys’ evidence concerning the hurt to his feelings was based on what he had been told about the report by his colleague, Mr Graeme Hinton, on the evening of the broadcast, and on the public reaction of others to the report in the days that followed. Mr V’landys also gave evidence about his reaction to various emails that were sent to Racing NSW in the aftermath of the report. Those emails were highly critical of Racing NSW and, in some instances, Mr V’landys.

191    The ABC and Ms Meldrum-Hanna submitted that the Court would not accept that Mr V’landys suffered any hurt feelings as a result of the report in the period prior to the trial. That is because, so it was submitted, any hurt to Mr V’landys’ feelings that occurred in that period was not referrable to the imputations which he now says were conveyed by the report, but was occasioned by what was an inaccurate and inadequate account of the report given to him by Mr Hinton. It was also submitted that Mr V’landys’ evidence about his hurt feelings before viewing the program was “hopelessly contrived and unavoidably artificial” because that evidence was given after he had viewed the program.

192    As for Mr V’landys’ evidence about the hurt to his feelings on having watched the report, the ABC and Ms Meldrum-Hanna submitted that little, if any, weight should be given to that evidence. That was because his evidence, upon having viewed the report, focused mainly on his belief that it was unfair that the ABC and Ms Meldrum-Hanna had not shown him the footage from the Meramist abattoir. His evidence did not really touch on any hurt to his feelings caused by the imputations conveyed by the report.

193    The ABC and Ms Meldrum-Hanna also submitted that Mr V’landys’ evidence of the hurt to his feelings as a result of the reactions of other people to the report and the emails sent to Racing NSW was also deserving of little, if any, weight. That was essentially because Mr V’landys’ evidence of the hurt to his feelings from the reactions of others appeared to be more based on what he believed others thought about the report, based on what he had been told about the report, as opposed to what those other people were actually saying. In particular, in his evidence, Mr V’landys maintained that people had reacted to the report by asserting that he was responsible for the cruelty at the Meramist abattoir, despite the fact that most of the evidence of what other people had in fact said, either in emails or publicly, tended to suggest otherwise.

194    Mr V’landys, not surprisingly, took issue with the submissions made by the ABC and Ms Meldrum-Hanna in relation to his evidence concerning the hurt to his feelings.

195    As was noted earlier, it is strictly unnecessary for me to make any findings concerning damages given that I have found that none of the pleaded imputations have been conveyed. Nor is there much utility in me exploring this issue in detail. The issue concerning Mr V’landys’ evidence about the hurt to his feelings very much hinges on the findings that have been made concerning what the report conveyed, or would have conveyed, to the ordinary reasonable viewer or reader. That is because the submissions focus in particular on the disjunct between Mr V’landys’ beliefs about what the report conveyed and what the report in fact conveyed. Given the findings that I have made about what the report conveyed, or would have conveyed, to the ordinary reasonable viewer or reader, there would appear to be merit in the submissions based on that disjunct. If, however, Mr V’landys successfully appeals my finding that the report did not convey any of the pleaded imputations, the issue concerning the evidence of Mr V’landys’ hurt to feelings will depend to a certain extent on the Full Court’s findings concerning the imputations that were conveyed.

196    In the circumstances, I do not propose to consider the evidence at length and will refrain from expressing any concluded view concerning the extent of the hurt to Mr V’landys’ feelings. Given the amount of time that was devoted to this issue at the hearing, however, it is appropriate to make some brief observations concerning the evidence.

197    First, there is merit in the submission by the ABC and Ms Meldrum-Hanna that much of Mr V’landys’ evidence of the hurt to his feelings before he viewed the report at trial was based on the inadequate and inaccurate description of the report which was given to him by Mr Hinton on the evening of the broadcast. Mr V’landys’ evidence was that he only saw snippets of the report on Mr Hinton’s smartphone on the evening in question. His reaction to the report was based on what Mr Hinton told him, which included that the report: was “not good”; was a “10 out of 10 stitch up”; made him “look very bad”; included interviews with “the two activists”; would be interpreted as if he, Mr V’landys, was aware of the “Meramist video”; and portrayed him as being “basically a little flippant”. Mr Hinton’s evidence of his exchange with Mr V’landys on the night in question was similar. His evidence was that he told Mr V’landys that the report portrayed him as being “the only face of the racing industry” and “had created this perception of a careless and callous industry that didn’t care about its horses”.

198    It is perhaps not surprising that Mr V’landys responded adversely to what he had been told by Mr Hinton. The difficulty, however, is that Mr Hinton’s description of the program conveyed very little about the program itself, as opposed to Mr Hinton’s perception of it. Perhaps more significantly, for the reasons essentially already given, I do not accept that Mr Hinton’s perceptions accurately conveyed what was, or would have been, conveyed to the ordinary reasonable viewer of the report. Most importantly, I do not accept that the report conveyed that Mr V’landys was aware of the footage of cruelty to horses at the Meramist abattoir, or that he was the only face of the racing industry, or that he was callous and did not care about horses. It follows the hurt to Mr V’landys’ feelings on the evening in question was not so much hurt caused by the report itself, but hurt caused by Mr Hinton’s inadequate and inaccurate account of the report.

199    Mr V’landys’ evidence about how he felt after Mr Hinton described the report to him confirmed that his hurt feelings were largely the product of Mr Hinton’s inaccurate summary of the report. Mr V’landys’ evidence was, in effect, that he felt devastated and shocked because he believed, based on what Mr Hinton had told him, that the report had conveyed that he was associated with, or had permitted, or was even responsible for, cruelty at the Meramist abattoir. For the reasons already given, however, the report did not convey, or would not have conveyed, any of those matters to the ordinary reasonable viewer. The hurt to Mr V’landys’ feelings on the night of the broadcast was therefore not hurt caused by the report itself, or the imputations in fact conveyed by the report, but hurt caused by his inaccurate understanding of what the report conveyed.

200    Second, there is also merit in the contention that Mr V’landys’ evidence concerning his reaction to the report itself, when it was played in Court, had little to do with the content of the report and what it conveyed about him. Rather, it was about his belief that he had somehow been deceived and “conned” by the ABC and Ms Meldrum-Hanna and that the report was biased.

201    Third, Mr V’landys’ evidence concerning the hurt to his feelings also depended to a significant extent on his adverse reaction to a series of emails that were sent to Racing NSW on the evening of the report and the days that followed. Mr V’landys’ evidence was that he read many of those emails, though it focussed in particular on a few particularly offensive emails. It is, in all the circumstances, unnecessary to consider in detail the content of the emails and Mr V’landys’ evidence concerning his reaction to them. A number of observations should, however, be made.

202    In relation to the emails themselves, it would be fair to say that: virtually none of them were addressed to or directed at Mr V’landys personally, but rather were addressed to, or directed at, the horse racing industry and the horse racing regulators generally; virtually none of the emails suggested or asserted that Mr V’landys or Racing NSW knew about the cruelty in the Meramist abattoir, or knew that horses were being slaughtered in knackeries in New South Wales, but rather suggested that Racing NSW should have known that those things were occurring, or should be doing more to ensure they did not occur; while some of the emails were undoubtedly grossly offensive and abusive, many of them were more measured, and contained modest and reasonable responses to the report and constructive suggestions about what should be done. The main point, however, is that the emails could not readily be said to convey to Mr V’landys what the report conveyed.

203    In relation to Mr V’landys’ evidence concerning his reaction to the emails, it would be fair to say that his reaction to many of the emails was not so much a reaction to the content of the emails themselves, but rather was a reaction to what he believed the authors of the emails were saying about the report. In many cases, there was a complete disjunct between what Mr V’landys believed the authors of the emails to be saying and what they in fact appeared to be saying. In particular, Mr V’landys’ interpretation of many of the emails appeared to be dominated by the impression or belief that the emails were asserting that he knew about the cruelty to racehorses depicted in the video footage taken in the Meramist abattoir. As already noted, virtually none of the emails said any such thing. It is difficult to avoid the conclusion that Mr V’landys’ interpretation of the emails was largely the product of what he had been told about the report by Mr Hinton, which, as already noted, was far from a complete or accurate account of the report. Mr V’landys appeared to be unable or unwilling to approach the emails on any other basis.

204    The result is that it is difficult to sheet home to the report itself a good deal of the hurt feelings that Mr V’landys may have suffered as a result of receiving and reading the emails that were received by Racing NSW on the night of the broadcast and in the days that followed. Rather, the hurt to feelings from the emails appeared to be largely the product of a rather fixed and inaccurate mindset about what the authors of the emails were saying, which for the most part did not align with what the authors were in fact saying, or with the content of the report itself, but was based on what Mr V’landys had been told about the report by Mr Hinton.

205    Fourth, much the same can be said about Mr V’landys’ reaction to the various media articles and broadcasts that were published about the report. It suffices to refer to two particular publications that featured prominently in Mr V’landys’ evidence and submissions.

206    The first was an article which appeared in the Sydney Morning Herald on 18 October 2019. It reported that “[r]acehorse owner and former Newscorp boss”, Mr John Hartigan, had been shocked by the report which, he said, showed that horse racing regulators had been “asleep” and needed to be “woken up”. Mr V’landys’ evidence was that he was very disappointed by this article because he was friends with Mr Hartigan and he believed that Mr Hartigan had the “wrong perception” and had thought that he, Mr V’landys, was “being flippant” because of the comment he had made about “cats and dogs”. He also interpreted the article as indicating that Mr Hartigan believed that he, Mr V’landys, was responsible for what had occurred in the Meramist article. Yet the article plainly conveyed no such thing. Indeed, it indicated that Mr Hartigan was surprised that Racing NSW was “unaware of the issue”.

207    The second involved commentary about the report by the prominent sports journalist, Mr Peter FitzSimons, during an appearance on a television sports show. During that appearance, Mr Fitzsimons criticised Mr V’landys for, amongst other things, claiming that no racehorses end up in abattoirs because that would be against Racing NSW’s regulations. Mr V’landys’ evidence was that he took Mr FitzSimons’ criticisms as indicating that Mr FitzSimons thought that he had something to do with the cruelty to racehorses at the Meramist abattoir. Mr FitzSimons, however, said no such thing.

208    As noted earlier, the ABC and Ms Meldrum-Hanna submitted, in effect, that the Court would not accept that Mr V’landys suffered any hurt to feelings as a result of the report. I would perhaps not go so far as to find that Mr V’landys suffered no hurt feelings as a result of the report. For the reasons that have been given, however, I would accept that the hurt feelings that Mr V’landys did suffer was for the most part not the result of the report and what it conveyed, but was rather the product of inaccurate belief about what the report conveyed based on what he had been told by Mr Hinton. This finding obviously would have implications for the assessment of the appropriate award of compensatory damages. It may, however, need to be reviewed and reconsidered in the light of any findings by the Full Court if the matter is remitted following a successful appeal by Mr V’landys in respect of my findings concerning the imputations that were conveyed, or not conveyed, by the report.

CONCLUSION AND DISPOSITION

209    Mr V’landys’ claim for damages for defamation must be dismissed. That is because the publications in question did not convey any of the imputations that Mr V’landys contended they conveyed, or any imputations that did not differ in substance from them. There is no reason why Mr V’landys, as the unsuccessful party, should not be ordered to pay the legal costs incurred by the ABC and Ms Meldrum-Hanna.

210    The appropriate order is accordingly that the application be dismissed with costs.

Associate:

Dated:    14 May 2021