Channel 7 Adelaide Pty Ltd v Conroys Smallgoods Pty Ltd [2007] HCATrans 417 (8 August 2007)

Last Updated: 22 August 2007

[2007] HCATrans 417

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A10 of 2007

B e t w e e n -

CHANNEL 7 ADELAIDE PTY LTD

Applicant

and

CONROYS SMALLGOODS PTY LTD (T/AS CONROYS PORT PIRIE ABATTOIRS)

First Respondent

PETER ANDREW CONROY

Second Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 8 AUGUST 2007, AT 3.01 PM

Copyright in the High Court of Australia

MR T.E.F. HUGHES, QC: May it please the Court, I appear with my learned friends, MR T.D. BLACKBURN, SC and MR S.J. DOYLE, for the applicant, the defendant below. (instructed by Kelly & Co)

MR A.R. HARRIS, QC: If the Court pleases, I appear for both respondents. (instructed by Minter Ellison)

GLEESON CJ: Yes, Mr Hughes.

MR HUGHES: Your Honours, I do not propose to deal, except very briefly, with the content of the summary of argument but I would seek to draw attention to two salient paragraphs prefacing that with a brief statement to the effect that the issue upon which the outcome of the defence of justification, substantial justification, turned in the Full Court was whether, during a quite narrow band of time, from the end of July to the date of publication of the matter complained of, a promo, as it is called in the argot of the trade, on 17 August, the defendant had established that the corporate plaintiff had continued to turn a blind eye to a well-entrenched practice of marijuana smoking in the corporate plaintiff’s meatworks at Port Pirie.

In paragraph (20) of our summary, page 190 of the application book, we say and we maintain that on the issue of substantial justification the essence of the applicant’s argument to the Full Court was that in the case of a company in which there are several levels of executive responsibility, proof of conscious toleration of malpractice on any such level, particularly the top level, as was the case here, found by the Full Court in relation to the conduct of Mr Andrew Conroy, the managing director, who had responsibility for the operation of the abattoir, if we establish the substantial truth of the “blind-eye” sting of the matter complained of as against Conroy’s on any of its responsible executive levels, particularly the top level, the sting was made out, proved to be true.

One complaint is that the reasons of the Full Court gave absolutely no attention to that argument. We also say that their Honours failed to explain why they did not attribute to Conroy’s, the corporate plaintiff, the conduct of a Mr Farrugia which is referred to in paragraph 9 of the application book.

GLEESON CJ: At the bottom of page 133 and the top of page 134 Justice Perry says that the trial judge, with whom he later expressed agreement, identified a man called “Vaughn Sampson as having primary responsibility for the enforcement of the drug and alcohol policy” and a little further down on page 134 he said that Vaughn Sampson at some stage got his act together, and whether that is convincing or unconvincing that seems to be the reason for finding in favour of the corporate plaintiff on the defence of justification.

MR HUGHES: That reason is marred with, in our respectful submission, because, as found by the Full Court, Mr Andrew Conroy, the head man, the man who had had marijuana smoke blown in his face in January while he was passing through the change room and had done nothing about it, continued, as found by the Full Court, to turn his blind eye, doing nothing to remedy the gross abuse that he had experienced at firsthand himself and that is why we stressed in paragraph (20) of the application book the importance of looking and dealing with the question whether there was on any level at all of executive responsibility, particularly the top level, a continued turning of the blind eye.

We relied also on the trial judge’s finding in relation to the production supervisor, Mr Farrugia. It is to be found at application book 190, paragraph (20)(b). The Full Court simply failed altogether to deal with his position. So when you have several tiers of executive responsibility and you find that one tier is not discharging its responsibility, it is easy and appropriate to attribute a blind-eye conduct to the company.

GLEESON CJ: What if it had been in reverse? What if the person who had been complaining about the conduct was Mr Conroy and it was Vaughn Sampson who was not doing anything to enforce the policy, would that have had the same consequence?

MR HUGHES: Yes, your Honour, yes, but this is a stronger case because we were able to attack successfully only in the Full Court the conduct of the top man and that is part of the very nub of this case.

GLEESON CJ: What was the amount of the verdict for the company?

MR HUGHES: The amount of the verdict was relatively small, but it was a 58-day trial - - -

GLEESON CJ: That was the next question I was going to ask you.

MR HUGHES: Yes. A 58-day trial, and I do not want to labour this, but in the Full Court there was some criticism of the time taken at the trial to prove that there was no danger to health by having these intoxicated workers perambulating around the production floor wielding sharp cutting instruments. It was a trial that went for 58 days and therefore enormously expensive, so there is, although we do not have the impertinence to attack in this Court, the judgment as to costs. That would be over bold. We say there is a fair bit involved financially in the outcome.

CALLINAN J: How long did the defence case take?

MR HUGHES: Mr Blackburn ran the trial. May I ask him to tell your Honour that?

GLEESON CJ: He can tell us later.

MR HUGHES: About 70 per cent, I am told, was taken up with the plaintiff’s issues with a vast amount of documentary evidence about the outcome of quarantine inspections to prove no danger to health and about 30 per cent time on ours. That is Mr Blackburn’s estimate.

GLEESON CJ: What was the verdict for the plaintiff, about $7,000?

MR HUGHES: Yes, plus some interest.

GLEESON CJ: At what level was this trial conducted?

MR HUGHES: In the District Court.

GLEESON CJ: Yes.

MR HUGHES: Your Honour, we appeal, in support of our application for special leave, to the visitorial jurisdiction of this Court. We say that there has been a failure to give reasons or, alternatively, adequate reasons on key issues in this case.

GLEESON CJ: Whether they are adequate or not is the argument, but so far as I can see, the reason that Justice Perry gave for his conclusion about the liability to the company is that that appears at the bottom of 133 and the top of 134, that is to say, the fact that it was the primary responsibility of Vaughn Sampson to enforce the policy.

MR HUGHES: But, your Honour, the primary responsibility for enforcing the policy has to be with the managing director who, from personal experience of what happened to him in the change room, knew what was going on.

GLEESON CJ: He became a passive smoker.

MR HUGHES: Yes. I ventured to describe him in the Full Court as adopting a Rip van Winkle attitude. What I have done, because time presses on, is to endeavour to distil the basis of the applicant’s case for special leave into rather less than two pages. May I hand that up?

GLEESON CJ: Yes, thank you, Mr Hughes.

CALLINAN J: Mr Hughes, I just am interested in knowing how many days were spent in the defendant’s case. I know what you say, 70 per cent on plaintiff’s issues, but I would like to know how long the defendant’s case took when the defendant went into evidence.

MR HUGHES: I will have to ask Mr Blackburn to answer that. Mr Blackburn hazards an estimate of about 20 days out of 58.

CALLINAN J: And, of course, when you say plaintiff’s issues it depends upon your pleading of justification, particularly of justification, just how much evidence a prudent plaintiff might feel that it has to go into.

MR HUGHES: But the plaintiff went into a great mass of evidence - - -

CALLINAN J: That may have depended on the way in which the issues were defined and, in particular, the way in which the issues were defined by your particulars, which I assume were given, of justification. What I am really saying is, Mr Hughes, 58 days, plaintiff suing, one has the impression a little bit that the response is, do not mess with us, the defendant. I mean, it all depends upon how the justification was pleaded, and I am not suggesting you go into that now, but I do not think it is necessarily a complete answer and justification for the length to say that the plaintiff went into a number of different issues in the plaintiff’s case.

MR HUGHES: I am not founding this application, your Honour, on a suggestion that the plaintiff’s advisers acted in some way unduly - - -

CALLINAN J: No, I am not suggesting you are, but the issue is, should we give special leave in a case which has already occupied 58 days of trial time and produced a judgment of $7,000. It is not an irrelevant consideration particularly in what you have said is a visitorial type of case.

MR HUGHES: Your Honour, we say that the amount is of relatively minor importance and not decisive given the length of the trial, the amount involved in the outcome and given that there is a fair argument that attracts the exercise of the visitorial jurisdiction because of failure by their Honours in the Full Court to give reasons in any way adequate for their outcome, for their ultimate decision in favour of the corporate plaintiff. I do not want to refer to cases but your Honours - - -

CALLINAN J: I understand the submission, Mr Hughes.

MR HUGHES: Your Honours, time is marching on and I think I have got about seven more minutes to go. I would respectfully request that your Honours consider the distillation document. It is not long and I draw attention in paragraph 3 to a proposition that if your Honours are of the view that this case attracts the exercise of the visitorial jurisdiction, there is an alternative to this Court determining the detailed issues of fact arising on the defence of justification. We say that it would be open to this Court, and there is authority which supports this case – QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd and Ors. We have provided copies – which says that in a case where there has been an error in procedure in the nature of a failure by the intermediate appellate court to consider or entertain a defence that has been raised, or an argument that had been raised, an appropriate course is for this Court to grant special leave, allow the appeal, and remit the issues arising on the outstanding defence of justification to the Full Court to be constituted obviously by judges other than those who heard the case.

GLEESON CJ: And that involves us allowing the appeal on the spot as it were?

MR HUGHES: Yes, or after consideration. In the QBE Insurance case I notice that the submission was put on 5 February and judgement was given, remitting the matter to the Full Court on the 23rd.

GLEESON CJ: Yes, I see that.

MR HUGHES: I do remember a case many years ago in which I appeared in which a court over which Sir William Deane presided did the same thing.

GLEESON CJ: You have got the advantage of us, Mr Hughes, none of us can see the lights.

MR HUGHES: I cannot, they have not gone on yet, your Honour.

GLEESON CJ: No. We seem to be working on an honesty system here. There is no problem with you, Mr Hughes.

MR HUGHES: I am obliged, your Honour. Your Honour, a principal effect of the reasons for judgment of the Full Court was the reversal of the trial judge’s conclusion that Andrew Conroy had ceased during the immediate pre-publication period, that fortnight, to turn a blind eye. In its argument to the Full Court the applicant, as appears from its written submissions, relied on the continued inaction of Andrew Conroy as strongly indicative, because of his position as the directing mind and will of what went on at the abattoir, to continue blind-eye conduct. The Full Court, we say, failed to give any – the first light has gone on, your Honour, so I must hurry.

GLEESON CJ: I see where they are now. Yes, we have got one in front. Thank you.

MR HUGHES: The Full Court, however, failed to give any reasons for affirming the decision of the trial judge in favour of that respondent without any attempt to explain why, despite its finding that Andrew Conroy continued to turn a blind eye during the fortnight, the respondent company succeeded in its defence of justification. The finding of the trial judge, which is at paragraph 147, that Justice Perry for the Full Court refused to set aside was a finding that expressly depended, if one looks at 147, upon a conclusion based in substantial measure on the proposition that “at the time” of publication of “the in-show promo”, the matter complained of, “on 17 August 2001 it was untrue to say that Conroys and Andrew Conroy were turning a blind eye”.

The trial judge relied upon a proposition rejected by the Full Court that Andrew Conroy had bestirred himself during that fortnight. That finding was rejected by the Full Court. Despite the facts, therefore, that the substantial basis, a substantial basis, of the finding of the trial judge had been destroyed by the finding of the Full Court, at paragraphs 192 through to 211, the Full Court declined to set aside the trial judge’s decision. The trial judge decision in favour of the corporate plaintiff was in very substantial measure based upon a footing, a factual footing, that the Full Court rejected. Your Honours will have picked that up. The key passage I think is paragraph 211 of the judgment at page 138.

GLEESON CJ: It really starts at paragraph 194 on page 135.

MR HUGHES: Yes, your Honour. So the Full Court failed to give reasons for adhering to a finding by the trial judge in favour of the respondent company that was substantially based on a factual premise that the Full Court destroyed.

GLEESON CJ: Thank you, Mr Hughes. Yes, Mr Harris.

MR HARRIS: If the Court pleases, we have addressed in our written material questions relating to the relevant legal principles associated with the obligation of both the trial judge and the intermediate court to give reasons. I do not understand from what my learned friend has put to the Court that what is in the applicant’s outline is now advanced that this is a matter that the Court needs to pronounce upon. What my friend is suggesting is the Court needs to interfere to correct the error that he identifies in the Full Court.

GLEESON CJ: I think the argument now has come down to the proposition that we should give special leave because there has been a miscarriage of justice.

MR HARRIS: Indeed, so we have already addressed questions of legal principle in the written material, but, your Honours, in our submission, properly understood there is not the error that Mr Hughes has put to the Court, even allowing for the Full Court’s reversal of the trial judge’s finding in relation to Andrew Conroy.

GLEESON CJ: Did the other members of the Full Court just agree with the late Mr Justice Perry or - - -

MR HARRIS: Yes, Justice Sulan wrote a small piece in relation to malice, but otherwise the judgment of Justice Perry was one with which the other judges agreed. Your Honour the Chief Justice made mention a moment ago of the fact as found by the trial judge that Vaughn Sampson had the day-to-day running of this abattoir at all the relevant times. Mr Conroy worked there, unusually, although he was the managing director of the company, he actually worked on the slaughter floor from time to time.

GLEESON CJ: Where did Vaughn Sampson fit into the picture in terms of the organisational structure?

MR HARRIS: He was the general manager of the abattoir, so he was the hire and firing man, he kept Mr Conroy, as it were, in the loop of what was going on but the day-to-day running of the abattoir, including enforcement of its policies including its anti-drug policy, was his responsibility. The trial judge so found – it is at application book page 2 – the significance of that, your Honour, is that when we come to the Full Court - - -

GLEESON CJ: Sorry, appeal book page?

MR HARRIS: At page 2. It is paragraph 5 in the trial judge’s judgment:

day-to-day management of the Abattoirs was left to its general manager, although Andrew Conroy consulted with him –

GLEESON CJ: Yes, I see. I have it, thanks.

MR HARRIS: The relevant pagination is at the bottom, your Honours. The pagination at the top I think must come from the appeal book in the Full Court.

GLEESON CJ: How many abattoirs did they have?

MR HARRIS: Just this one. They had boning facilities. The principal business of Conroys over 90-odd years was in smallgoods, particularly pork and bacon products, et cetera. They then expanded and bought an abattoir with a view to developing an export business for which they then acquired a boning room in Adelaide and so much of the product that was produced by the abattoir was then sent down to a related business whereby it was further trimmed and boned and packed for the export market.

CRENNAN J: Are the passages on page 48, paragraphs 146 and 147 of the trial judge’s reasons, is that where he deals with what was done once Mr Vaughn Sampson was taking some steps?

MR HARRIS: Yes, and, your Honour, there is one aspect of that which with the greatest respect to his Honour was a little harsh. His Honour notes in paragraph 146, five lines down:

There is a suspicion, but not backed up by any hard evidence, that he –

that is Sampson –

may have become aware that Burns was seeking to make trouble over the issue.

Your Honours, his Honour is right to this extent, there was no hard evidence whatsoever contrary to the proposition which is the basis upon which this case proceeded that the activities of Conroys, that is, by Sampson instructing Northcott to increase his surveillance in and around the amenities area in early August 2001, had absolutely nothing to do with Channel Seven, it had absolutely nothing to do with Mr Burns and it had absolutely nothing to do with any hidden camera vision. So that was activity by Conroys of its own motion - - -

GLEESON CJ: But I think the trial judge said that what stirred Sampson into activity was an apprehension that Burns was going to, as it were, disclose to the media this marijuana smoking whereupon, so the suspicion ran, Sampson decided to crack down on it.

MR HARRIS: It may have been a suspicion, his Honour was quite right, there was no evidence of that and there was evidence to the contrary, given by Northcott, that it initially was for the purpose of catching people out against the anti-smoking ban, cigarettes.

GLEESON CJ: At all events, the argument that we are now faced with is the proposition that even though the general manager, Sampson, decided to crack down on it and did take steps to crack down on it, Mr Andrew Conroy maintained his personal attitude and therefore the argument is it was a miscarriage of justice for the Court of Appeal to conclude that although the defence of justification was made out in relation to Mr Andrew Conroy it was not made out in relation to the corporation.

MR HARRIS: But, your Honour, in relation to Andrew Conroy – and if I can just point your Honour to the paragraphs – the Full Court in upholding the trial judge’s finding in relation to Conroys, the company, then – and it is appeal book 135, paragraph 194 of the Full Court’s reasons, Justice Perry said, “While I agree with that finding”, and that was the finding in relation to Conroys, the company, his Honour had difficulty in relation to Andrew Conroy. Then in the succeeding paragraphs what Justice Perry did was then to say, “I cannot see any evidence whereby Andrew Conroy, the man, can take the benefit of the undoubted positive, that is, affirmative actions by Vaughn Sampson, the general manager, instructing the safety officer, Northcott, to increase the surveillance”.

Your Honours, it was not just increasing the surveillance. On two occasions in this period Northcott, following through the instructions that he had been given, caught workers smoking marijuana, reported them to Sampson and Sampson terminated their employment.

GLEESON CJ: Sampson actually sacked two people, as I understand it.

MR HARRIS: Yes. So here we have in relation to the company, that is, the executive who had the responsibility for the day-to-day running of the abattoir, and the person that he gave the job to increase the surveillance - Channel Seven no doubt, by the way they framed the promo, wanted to claim credit for the fact that they had exposed some conduct which was going on up until the revelation in the promo caught on film what was said. That follows a predictable formula for programs like this. But the point is that that was not true. The company of its own motion had already instituted activity which was the antithesis of acquiescence. It was positive action to enforce its anti-drug policy.

Now, it is not just a temporal issue, which is what Channel Seven wants to say, which is, you know, “We are a bit wrong by a couple of weeks”. The hidden camera vision was infiltrated into Conroys abattoir in late July 2001, so Channel Seven had its hidden camera vision, knew nothing – that is, Conroys knew nothing about it – they took no steps to approach Conroys. The first worker was caught and sacked on 9 August, the first approach to Conroys was on 15 August by the journalist, Wenn. The judge spent some considerable amount of time dealing with Wenn. He found him to be a liar and was not prepared to accept any evidence that he gave unless it was independently corroborated.

The trial judge found, and the Full Court accepted, that when Wenn approached Conroys on 15 August he did not tell them – contrary to his own evidence – he did not tell them anything about what he was there for. He just said he wanted to ask them about an occupational health and safety issue. Conroys knew nothing about the film or any of the allegations of marijuana smoking that Channel Seven were going to run on the 15th. On the 17th the second worker was caught and sacked and the program went to air that night. Your Honours, the point about that is here you have a company that of its own motion is enforcing its policy. The nature of the promo was to say, we have caught these people, they are turning a blind eye and we have caught them.

If one looks at the calibre of the defamatory imputation which was conveyed by the promo, as the trial judge rightly held and the Full Court agreed, the present tense verbs used in the promo indicated that this was a practice that was going on until they had been caught. One can imagine why Channel Seven would not want to have broadcast a promo which actually contained the truth, and that is, here is a company which has had practices in the past of acquiescence to a serious problem, they have been addressing it by their general manager catching people and sacking them for breaching the drug policy, but that has only been in the last couple of weeks. That would be scarcely the arresting sort of promo that programs like this like to broadcast, but that is what they did broadcast.

They chose to make a statement which was that this was a present reality, and the calibre of that defamatory imputation is materially more damaging than the one which actually accorded with the truth. That is why there was no substantial justification. This is more than a temporal issue. It relates to the charge that was made against the company, against Andrew Conroy. Your Honours, can I come back to what is said to be the error in the Full Court by not dealing with the consequences of having visited upon Andrew Conroy a continuation of his acquiescence, that is, turning a blind eye?

The basis of the Full Court’s reasoning was that Andrew Conroy, the man, could not take the benefit of the company’s positive actions because they were the actions of the company and the company, as a separate legal person, by the responsible persons who had the charge of that job, had acted, therefore were not acquiescing in the relevant period. Your Honours, there is no inconsistency between holding Andrew Conroy, the man, still to be a person who acquiesces and turns a blind eye and yet the company, a separate legal person, acting differently. It would be a different case if this case was about knowledge, that is, the company knew about this. If that were the defamatory imputation and Andrew Conroy’s knowledge was said to continue, then the company would be visited with those consequences of the managing director.

But as the trial judge held and the Full Court rightly agreed, what Channel Seven had to do was much more than that to make good justification of the defamatory charge they made in the promo. They had to prove knowledge of the practice, which they did. They also had to prove acquiescence, that is, acquiescence to that known practice to the currency of the broadcast, which they did not. They succeeded in relation to Andrew Conroy, the man. To answer a question that your Honour the Chief Justice posed a moment ago to Mr Hughes, would there be any difference if it were the reverse and Andrew Conroy complaining and the company not, the answer is, yes, because Andrew Conroy, the man, would have failed as Andrew Conroy, the personal plaintiff, if the finding was that he knew and he continued to acquiesce. Conroys, the separate legal person acting through its responsible persons, was not so acquiescent in the period of time that the judge found.

So, in our submission, there is no relevant inconsistency between the consequences visited upon Andrew Conroy, that he cannot have the benefit of the company’s actions because he allegedly did not know about them until after they had happened, and yet the company have the benefit of them on the trial judge’s findings because they are positive acts by that legal person inconsistent with acquiescence. In our submission, there is no failure to give proper reasons by the Full Court. It is nothing like the Switzerland General case that the applicants handed up to the Court today. That was a case where the Court of Appeal failed to deal with a discrete ground of appeal advanced by QBE, the insurer, which, had it been dealt with, would have disposed of the case in its favour.

CALLINAN J: Mr Harris, if the program had just consisted of replaying with moderate sort of commentary but the replaying of what had been secretly filmed and the promo had left out, well, of course, they know what goes on, it is case of them turning a blind eye to it, it would have been an entirely different case, there would have been justification.

MR HARRIS: On the judge’s findings, that is right, your Honour.

CALLINAN J: It is just another instance of adding a bit of sensationalism and then expecting to be entitled to do that. I mean, one wonders why they do it. It is a perfectly good story and a story probably in the public interest, just to show what was happening, but then to add something that apparently they did not really know, that there is a turning of a blind eye to it.

MR HARRIS: Your Honour, the trial judge made an express finding that this promo was deliberately sensationalist.

CALLINAN J: Well, of course, that is obvious from just reading it.

MR HARRIS: Indeed.

CALLINAN J: But for the sensationalism, they would not have been in court, Channel Seven.

MR HARRIS: Indeed. And, your Honour, it is Channel Seven who chose the words of the promo. It is Channel Seven who chose to make it a present tense allegation and claim the credit for catching out this wrong doer. Again, as I say, a predictable formula. It just happens to be the case that this formula was wrong because the vision that they had managed to get was now out of date and no credit was given anywhere in this material in the promo to the actions that Conroys had taken of their own motion to enforce their policy. That is why the defamatory sting in what was broadcast is so much dramatically greater in calibre than what was the truth.

CALLINAN J: Intentionally, so obviously, to get the sensationalism, to draw the viewers in.

MR HARRIS: Indeed, and, your Honours, if one then looks at the consequences that are said to flow, this is not a – the suggestion that this Court can in effect grant special leave, allow the appeal and remit it to the Full Court and, well, you know, the costs issues will float along the way, they are not advanced here as a ground for special leave and neither they could be, but all of a sudden they are back in the Full Court and there is a new argument on this narrow ground, we make the point in our outline that that is an entirely artificial criticism of the Full Court’s reasons.

If the Full Court’s reasoning exposes a failure to adequately disclose the path of reasoning to yield of the outcome, that is exposed in respect of the matters that were made adverse to Conroys and Andrew Conroy in the Full Court. A substantial part of Conroys appeal to the Full Court was a complaint that the trial judge did exactly that, I think probably relying on the same cases that are now put by Channel Seven. So if this were to be remitted now, that cuts off issues of the entitlement of Conroys and Andrew Conroy to cross-appeal in the event that a grant of special leave was granted to Channel Seven on the points related to its cross-appeal in the Full Court that it wishes to agitate. In other words, if there is a challenge to be made of the adequacy of the Full Court exposing its reasons, then that challenge cuts much wider than the narrow playing field that has been carved out by Channel Seven. So, the idea of granting leave and remitting to deal with this point, in our submission, is not relevant or practical in the circumstances of this case.

Your Honours, can I just go back for one moment to one issue which – and again I am not certain that it is a matter of great contest – but the way this case was joined at trial was that the plaintiffs shouldered the burden of, in effect, taking their case in-chief to deal with all the issues raised in justification at the off. There was not a case where the plaintiff led the evidence that might be said only was necessary to make good a cause of action in libel.

CALLINAN J: It is always a dilemma for a plaintiff in a justification case in defamation and there is always a worry about contentions about splitting cases and things of that kind and it is often very convenient and appropriate for a plaintiff to do what was done here. I take it there were particulars of justification, were there?

MR HARRIS: Indeed, and it is quite right to say that there was a substantial amount of time taken up on an issue that is not before the Court in terms of this aspect of the Court’s reasoning, but to the extent that it contributed to the length of the trial, Conroys had in place a very detailed and very expensive system called a meat safety quality assurance system. That system was originally brought in, just by way of background, by NASA so that when astronauts had something to eat when they were up in space they did not get food poisoning because of some inspection point at the end of the process being in error - - -

CALLINAN J: A little hard to treat it up there.

MR HARRIS: Yes, it is hard enough to get a GP anywhere, your Honour, but pretty hard up in space. But the point is, this system was designed so that you had monitoring of the process workers themselves and monitoring of the product by a very elaborate system of cross checks all the way down the slaughter line. It was meant to cover acts of sabotage by an individual meat worker.

GLEESON CJ: It is probably never good to go into the details of smallgoods manufacture.

MR HARRIS: I make mention of it for only this point, your Honour. It was necessary to counter the question of one of the other imputations that was found to arise, that is, that there was a danger to health by this practice, to prove the operation of the system. Now, the defendants were prepared to prove the documents which evidenced the system but not its practical operation, that was a live contest in the case. There are AQIS workers, Commonwealth employees, inspectors, who sit there as well as a separate layer of monitoring.

All of that was supported by credentialed expert evidence called by Conroys, not accepted by the trial judge, and the Full Court were not disposed to interfere on our appeal, but there was credentialed expert evidence to support the proposition that, even though there is a risk of contamination in any abattoir, the scores that were obtained by Conroys according to the system which was in operation meant that their product was no more unsafe than any other abattoir product anywhere else which covers the same risks of contamination, even though workers were smoking marijuana.

Now, that evidence was not accepted by the trial judge, but that was a body of evidence, as I said, supported by a credentialed expert, an ex-credentialed expert, to support it. That took a long time, but it is not said and it was not said either by the trial judge or by the Full Court that that was unreasonable. It was one of those cases where the swords were drawn and they clanged on every issue all the way through the case.

GLEESON CJ: Yes, thank you, Mr Harris.

MR HARRIS: If your Honour pleases, they are our submissions.

GLEESON CJ: Yes, Mr Hughes.

MR HUGHES: In reply I would submit that the tendency on the other side from my learned friend has been to try to fight the compressed form and issues of justification that were found against his client. I would ask your Honours, before giving a decision on this application, to consider the various component parts of the wall of apathy that continued to exist during the key fortnight prior to publication. This paper, which I handed up to your Honours, was given by us to my learned friend this morning so that he could deal with it. I did not want to take unfair advantage by bringing in, as it were, a document that he had not a chance of considering. He had all this morning to consider it. He has not replied to any one of the evidentiary matters referred to in paragraph 6 - - -

GLEESON CJ: Does this deal with the two dismissals?

MR HUGHES: The two dismissals, your Honour, were dismissals not of employees of the corporate plaintiff, they were lent labour provided by a labour supply company and it was relatively easy for Conroys to say to the supplier of the labour, do not let that man come back. They were the only two people who were, as it were, warned off. They were not direct employees of the plaintiff.

It is impossible in the time allowed, properly allowed, on an application of this sort, to fight in compressed form issues of justification,
including issues that were found in our favour by the trial judge. The real issue is whether the Full Court gave any attention to the points raised in particular in paragraph (20) of our summary of argument. I will not read them again, but I point out that my learned friend has not contested what we said in paragraph (20) of our summary of argument, and he has not contested what we have said in the document that he has had for his consideration since quite early this morning in paragraph 6 or any of the other matters in our distillation document.

Those non-contested assertions, particularly those in paragraph (20) of the summary of argument, your Honour, make a powerful case for the argument that the Full Court failed to deal adequately with the issue of justification as regards the last fortnight and, if one takes a line through these uncontested factual propositions not dealt with by the Full Court, it is not a case of a defendant that for the sake of sensationalism makes statements lacking any factual foundation. I ask your Honours and particularly, if I may say so, with great respect, Justice Callinan, to bear in mind the evidence accepted by the trial judge as to the conduct of the man, Northcott, whose practice was to act as a cockatoo, to warn people that inspectors were on the way so do not smoke on such and such a day next week. That was evidence in the case.

The position as regards Darren Munro, found by the trial judge to have observed smoking, during the fortnight, of marijuana, not dealt with my learned friend. The position of Farrugia, whom the trial judge found had observed marijuana smoking during the crucial fortnight and done nothing about it. So there was really totally unacceptable conduct not only by Andrew Conroy, the head man, but by various people itemised in this document not answered by my learned friend in the executive chain of responsibility.

GLEESON CJ: Yes, thank you, Mr Hughes.

MR HUGHES: Thank you, your Honour. Your Honour, there is another document which I could hand up which would deal with the details if the Court took a certain course, if I could show your Honours that.

GLEESON CJ: We do not need it.

We are of the view that this case, the outcome of which turned very much on its own facts, does not raise an issue of principle suitable to a grant of special leave to appeal, and we are not persuaded that the interests of justice requires such a grant. The application is dismissed with costs.

AT 3.50 PM THE MATTER WAS CONCLUDED