Conroy's Pt Pirie Abattoirs v Channel Seven Adelaide - [2005] SADC 85

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CONROY'S PT PIRIE ABATTOIRS v CHANNEL SEVEN ADELAIDE
Reasons of His Honour Judge Lunn
20 July 2005
DEFAMATION
Defendant TV station broadcast promotions for a current affairs programme on drugs in the work place showing meat workers at an Abattoirs smoking marijuana - held the broadcasts identified the 1st plaintiff as the operator of the Abattoirs and the 2nd plaintiff as its managing director - held imputations were raised in respect of the substantial practice of marijuana smoking by the meat workers that:
1. it was a risk to the safety of other meat workers;
2. it was a danger to public health;
3. it was known by the plaintiffs;
4. the plaintiffs turned a blind eye to it.
Held the defendant had justified imputations 1-3 and partially justified 4 except as to a period of about two weeks before the broadcasts - held defences of fair comment and qualified privilege failed - malice by defendant - award of damages of $8,100 to each plaintiff including pre-judgment interest.

CONROY'S PT PIRIE ABATTOIRS v CHANNEL SEVEN ADELAIDE
[2005] SADC 85
Background

The 1^st plaintiff, Conroys Smallgoods Pty Ltd (“Conroys”), is a company incorporated in South Australia. Its only directors are the 2^nd plaintiff, Andrew Conroy, his brother Patrick Conroy and their father, Robert Conroy. It conducts a major business in this State in the production and sale of smallgoods which bear the “Conroys” label. That business has operated for more than 90 years and bears a high reputation for quality products. Conroys also carries on business in the wholesale sale of meat in this State.
Andrew Conroy is a joint managing director of Conroys with his brother Patrick. He has worked in the company business since he left school. He is closely associated in the public eye with the 1^st plaintiff’s businesses, and particularly as they bear a common name.
In the early 1990s Conroys acquired an Abattoirs on the outskirts of the City of Port Pirie which is about 200 kms north of Adelaide. It conducted the business of the Abattoirs under the business name of “Conroy’s Port Pirie Abattoirs”[1] Since it acquired the Abattoirs it has been the only Abattoirs in Port Pirie. Only sheep, lambs and goats were slaughtered at the Abattoirs. It had the capacity to kill and process up to 3300 animals a day. Most of its product was exported although a few per cent went into the domestic market. It required, and obtained, special accreditation to enable its products to be exported. In and prior to 2001 the financial viability of the Abattoirs had been marginal.
[1] Unusually in this day and age Conroys carried on two major businesses which had little relationship with each other through a single legal entity.
Also in the early 1990s Conroys acquired Pace Trading Pty Ltd (“Pace”) which conducted a boning room in Adelaide which dissected carcasses into various cuts of meat and packed them into cartons for wholesale distribution and export. Most of the carcasses from the Port Pirie Abattoirs went to Pace although some went to the Australian Lamb Company.
Andrew Conroy was the director of the 1^st plaintiff who had the primary responsibility for the Abattoirs business. Prior to about early 2000 Patrick Conroy had had some involvement in the Abattoirs business but it was of no apparent relevance to the matters in issue in this action. Andrew Conroy usually visited Port Pirie for two or three days each week. The day-to-day management of the Abattoirs was left to its general manager, although Andrew Conroy consulted with him about business matters and kept himself generally au fait with what was happening there. Unusually, Andrew Conroy also worked for some part of most weeks as a meat worker on the slaughter floor of the Abattoirs. While he then mixed to some extent with the other workers on the slaughter floor, he did not share their change rooms. He did on occasions use the toilets provided for the general work force which were accessed through the change rooms.
A few metres inside the main gate to the Abattoirs was a separate building which housed the administration for the Abattoirs and the office of the general manager. Behind that building was another separate building which contained a lunch room and a changing room for the meat workers.[2] This changing room comprised a long narrow room with a series of metal lockers along each of its side walls. Each meat worker had his own locker in which he kept his street clothes and personal belongings. The lockers did not descend to floor level and immediately in front of the bottom of them were continuous long benches on which the meat workers could sit. There were exhaust fans in the ceiling of this change room. At the far end of the change rooms from its entrance was a toilet block which was used by the meat workers. At various places on this building, and also elsewhere on the Abattoirs’ premises, were various signs erected by the management about the prohibitions on eating, smoking and use of non-prescription drugs. A separate building contained the processing area or slaughter floor and the chillers in which the dressed carcasses were stored before being transported elsewhere. Elsewhere in the premises were some areas outdoor which were designated for cigarette smoking. There were a number of other buildings in the Abattoirs complex but they are of no relevance to this action.
[2] The workers on the slaughter floor had to be dressed in special hygienic clothing.
On a typical day in 2000 and 2001 about 70 meat workers working on the slaughter floor killed and processed between 2800 and 3200 animals. The processing began at 6.30 am and generally continued until about 3-3.30 pm. The meat workers had to change into their work clothes and to be in their positions on the production line by the time their individual roles commenced. They had a number of “smokos” and meal breaks during the day when they generally returned to either the change rooms or the lunch room. The timing of these breaks was staggered depending on where particular meat workers were stationed on the production line.
After being initially stunned at the entrance to the slaughter floor the animals were suspended by their legs on a moving chain on which they then progressed along the slaughter floor. As each carcass came through the various positions on the slaughter floor the meat workers stationed there performed a particular function in the dressing of the carcass. As the chain moved at a constant speed each meat worker had only between about 6 to 10 seconds to perform his particular function on each carcass. Many of the meat workers had to use extremely sharp knives and in some places to work in proximity to powerful mechanical cutters which removed heads and legs from the carcasses. Most of the meat workers on the production line worked in close proximity and shoulder to shoulder.
A major problem in any Abattoirs was the performance of the necessary steps to kill and dress the carcasses without contaminating them with bacteria, some of which could be harmful to the humans who ultimately consumed the meat. Contamination could be of two types. One was macro or visible contamination which occurred when foreign substances in the pelt, faeces, ingesta, urine or milk, even in small quantities, escaped in the evisceration process and became attached to the meat. As Dr Tulloch pithily said:
The dressing of a carcass may be described in vernacular terms as a removal of a doormat (the skin) from the outside and a bag of manure (the gastro-intestinal tract) from the inside. Hygienic dressing involves the removal of these two items without contaminating the meat.
While much of such contamination was removed in the dressing process by trimming it off the carcasses with knives and by hydro-vacuuming the carcasses, there was always a potential for some of it to be still on the carcasses when they left the Abattoirs.
The other major category of contaminants were micro-organisms which are invisible to human sight. These micro-organisms also came from the pelt or gastro-intestinal tract of the animal and often, although not always, were related to items of macro-contamination. Micro-contamination in particular could result from cross-contamination in that it was transferred from one carcass to another by the hands or instruments of the meat workers. To prevent this, numerous procedures were in place for sterilising instruments, washing hands and maintaining the hygienic state of the workers’ clothing.
In the late 1990s Conroys introduced a Meat Safety Quality Assurance (“MSQA”) System at the Abattoirs to monitor, control and reduce the macro and micro-contamination on the meat produced by it. It is a complicated and complex system which it is not necessary to detail. It involved publication of a detailed manual setting out precisely what was required of each operative at each station on the production chain. It required the visual inspection and chemical sampling of a number of carcasses before they left the Abattoirs on the basis that on statistical probabilities they represented the likely degree of contamination of all the carcasses leaving the Abattoirs. A HACCP (Hazard Analysis Critical Control Point) system was included in the MSQA procedures by which points in the production chain at which any contamination occurred could be identified, and the problem thus remedied. Random checks were conducted on operatives on the slaughter floor to ensure their compliance with hygiene requirements and to identify and correct potential problems. Considerable statistical data was collected which could be analysed to enable trends to be identified and comparisons to be made with previous analyses and the performance of other Abattoirs.
Built into Conroy’s MSQA system were special requirements to deal with Zero Tolerance (ZT) defects which were defects from macro-contamination by faeces, ingesta, urine and milk.[3] The ZT defects were strictly policed, but contrary to the implication from its name some degree of such defects were tolerated in an acceptable performance score on the MSQA analyses. One of the sources of contamination which the MSQA system was designed to address was that resulting from human error by operatives on the slaughter floor.
[3] ZT defects were mandated by the United States Department of Agriculture and not allowed for meat exported to that country.
The Australian Quarantine and Inspection Service (“AQIS”) is a department of the Commonwealth Government which has responsibility under the Commonwealth Export Control Act for the quality of meat exported from Australia. Over and above the MSQA system operated by Conroys, AQIS conducted a National Plant Management System for Abattoirs including Conroys.[4] AQIS had a Plant Veterinarian, and several meat inspectors employed by it, permanently stationed at Conroys Abattoirs. It certified the quality of the meat produced at Conroys as being in conformity with the export requirements for various countries and fit for human consumption. Part, but not all, of the issues addressed by AQIS related to macro and micro-contamination of the meat. AQIS inspectors physically checked every carcass passing through the Conroys Abattoirs after its dressing processes were completed and conducted random checks on the compliance by Conroys’ meat workers with their MSQA obligations. AQIS rejected a carcass if it was not up to standard and it could issue “Meat Notices” requiring Conroys to change its practices. Monthly a more senior AQIS Veterinarian, an Area Technical Manager, conducted a detailed review and audit of the whole of Conroys Abattoirs including the data from its MSQA programme and issued an audit report for Conroys Abattoirs. These reports were always in the “acceptable” range.
[4] Part of this system included AQIS reviewing and approving Conroy’s MSQA system.
At the relevant times the management[5] structure of Conroy’s Abattoirs was as follows:
[5] There was a dispute about who constituted management at Conroys for the purposes of the knowledge of the company but it is not necessary to deal with that issue.
·Joint Managing Director, Andrew Conroy
·General Manager, Vaughn Sampson
·Quality Assurance Manager, also Vaughn Sampson
·Office Manager, Josephine Bruce
·Quality Assurance Supervisor, Darryl Dunstall
·Quality Assurance Officer, John Barbarien Jnr – he performed the chemical testing for the micro-contamination
·Production Supervisor, Wayne Farrugia as from 3 August 2001
·Assistant Quality Assurance Officer, Tom Northcott
·Safety Co-ordinator, Tom Northcott as from June 2000
·Team Leaders, Jerry Wilde, Darren Munro and Alan Fricker. Wayne Farrugia had been a team leader before he became Production Supervisor. These team leaders were meat workers who worked on the slaughter floor but who had additional responsibilities.
The events in question at the Abattoirs need to be viewed in their context against a background of a business which had a number of difficulties, apart from financial ones. Part of its work force belonged to an active Union which had long-standing conflicts with Conroys over a number of issues. There had been strikes and lock-outs. When Conroys had sought to dismiss employees which it did not want the Union had instigated reinstatement proceedings in the Industrial Court for unfair dismissal which Conroys had generally lost. Both the workers and Conroys knew that any attempt to dismiss employees for almost any reason would be likely to be countered by expensive unfair dismissal proceedings in the Industrial Court. This led both workers and Conroys to act on the basis that no worker was likely to be successfully dismissed unless Conroys had very strong evidence of a major misdemeanour by the worker. The workers were generally sufficiently close to each other, and antagonistic to Conroys, that they would not give any evidence to Conroys which it could use against another worker.[6] There was also a general belief among the workers that they would suffer retaliation from other workers if they were seen to have “dobbed” in any of their co-workers to management.[7] Overall it was not a particularly happy and harmonious work place.
[6] There had apparently been a knife fight between two workers at the Abattoirs, but Conroys could do nothing about it because the only witnesses were other workers who refuse to say anything.
[7] Tom Northcott was subjected to vandalism on his car and threats of aggression when he did report matters to management. Others expected to get "their heads bashed in" if they sided with management.
The defendant is a company which operated the television station Channel Seven in Adelaide. At 6.30 pm on week nights it produced and broadcast a programme known as “Today Tonight” which was a magazine-type, current affairs programme dealing with matters of general interest to viewers in this State. Graham Archer was the producer of this programme. When he was on holidays his role as producer was taken over by Frank Pangallo. Rohan Wenn was employed by the defendant as a reporter for the programme. Mark Wilkinson was a cameraman employed by the defendant who worked under the direction of Wenn. Toby Williams was a sound recordist for the programme who also worked under the direction of Wenn. The on air presenter of the Today Tonight programme was Leigh McCluskey.
The broadcasts from Channel Seven Adelaide were receivable by any television set with an ordinary aerial situated in the Adelaide metropolitan area and near country areas. The signal from Channel Seven Adelaide was only receivable in Port Pirie and at places in the mid-north of South Australia where viewers had installed special aerials on high towers. There were a significant number of such tower aerials in Port Pirie, but not every home had one. Thus it is likely that a significant number of viewers in Port Pirie and surrounding districts could have viewed the Today Tonight programme and other Channel Seven programmes if they had chosen to tune their sets to Channel Seven, but the percentage of the population of Port Pirie and surrounding districts who viewed Channel Seven would not have been as high as the percentage of the population in Adelaide who viewed it because there were some houses there which could not access the channel.
History of relevant events
In 1995 it had been a matter of public notoriety in South Australia that in Adelaide a child had died and a number of people had become seriously ill as a result of eating mettwurst produced and sold by Garibaldi Products which had been contaminated in its production by E-Coli 157 bacteria. Conroys in its smallgoods business produced a number of products similar to those which had been produced by Garibaldi. Garibaldi had gone out of business as a result of the adverse publicity from this incident. Conroys justifiably feared that any public perception that products made by it might be contaminated so as to be a possible risk to public health could impact disastrously on its smallgoods business. Graham Archer had been involved in reporting on the Garibaldi story and was well aware of it.
In 1994 Geoff Evans became the general manager of the Abattoirs. In December 1995 he observed a meat worker, Craig Jebb, smoking marijuana and summarily dismissed him.
In 1996 Vaughn Sampson commenced employment at the Abattoirs as the Quality Assurance Manager and began the implementation of the MSQA system. At a meeting of the site Safety Committee on 24 January 1997, which was attended by representatives of management, the Union and team leaders, employees were reminded that under company policy non-prescription drugs were not permitted at the Abattoirs and there was to be no smoking or eating in the change rooms.
As a result of rumours which he had heard about meat workers smoking marijuana at the Abattoirs, Geoff Evans arranged for a police sniffer dog to come to the Abattoirs on 20 November 1997. Responses from that dog led to marijuana being found in the lockers in the change rooms of three meat workers. Warning letters were sent to those three meat workers, but they were not dismissed because there was no evidence they had actually been smoking marijuana at work.
In about 1999 Wayne Farrugia became a team leader and he then regularly attended meetings of the Safety Committee. In February 1999 Geoff Evans was diagnosed with cancer and Vaughn Sampson became the acting general manager of the Abattoirs as well as remaining as the Quality Assurance Manager. In October 1999 Geoff Evans returned to work part time but ultimately he retired because of ill health in February 2000. Vaughn Sampson then became general manager in addition to continuing to be the Quality Assurance Manager.
In about mid 2000 Conroys promulgated a new Drug and Alcohol Policy. Its terms were as follows:
Conroy’s Port Pirie Abattoir
Drug and Alcohol Policy
An employee found to be in the possession of, or under the influence of alcohol or non-prescription drugs whilst on duty and whilst they are on Conroy’s Port Pirie Abattoirs property, he or she is subject to the conditions outlined in the Disciplinary Policy and may be liable for instant dismissal because it contravenes the following:
·Criminal offence.
·Occupational Health and Safety Regulations.
·Australian Quarantine Inspection Service, Export Meat Orders.
·Australian Workplace Agreement.
As such the Company may require you to undergo non-intrusive drug and alcohol tests (e.g. breath or urine tests).
The tests will be conducted by a trained professional and will satisfy all criteria necessary to ensure safe and accurate testing.
The situations in which testing may occur are, but not restricted to:
·Where you are promoted or transferred from a non-safety critical position:
·Where you have been involved in a specific incident in which your Supervisor and Manager has reason to believe your own actions caused the incident, and where there is no other reasonable explanation for the incident; or
·Where your Manager has reasonable suspicion you have been or are about to work under the influence of alcohol or drugs, to the degree that your safety or the safety of others may be affected.
Signed
Vaughn Sampson
General Manager
Quality Assurance Manager[8]
It seems this document was published to Conroy’s work force.
[8] There was another version of this document which had in the first line after "in the possession of" the handwritten words added "consuming on the work premises,". How and when such an amendment was made was not satisfactorily explained in the evidence.

In June 2000 Tom Northcott was appointed to be the Safety Co-ordinator and in addition he became Assistant Quality Control Officer. He had previously been employed in the general work force at the Abattoirs, had left and then came back after having gained some experience in safety co-ordination elsewhere.
From 27 July to 27 September 2000 there was a lock-out by Conroys of a significant number of Union members. The Abattoirs continued to operate at a reduced level of output and with considerable difficulty. There had been a previous lock-out from January to May 2000. However, in October 2000 Conroys entered into an Australian Workplace Agreement with its employees which apparently put an end to much, but not all, of the disputation with the Union. Significantly clauses 19.4-19.6 of that Agreement authorised Conroys to conduct non-intrusive drug and alcohol tests on its employees in certain circumstances.
On 5 October 2000 Vaughn Sampson counselled a meat worker, Jason Goodwin, over his failing to ascertain faecal contamination. Jason Goodwin had a major drug problem and committed suicide later that month. When Andrew Conroy visited Jason Goodwin’s mother a few days later to offer her his condolences she told him that he had a drug problem at the Abattoirs. As a result of this intimation Andrew Conroy had Tom Northcott contact Tony Hehir from “WorkSafe”, a consultant to industry on drug problems in work places. Tony Hehir visited the Abattoirs and had a meeting there with Andrew Conroy, Vaughn Sampson and Tom Northcott about the detection of any drug use at the Abattoirs. In November 2000 Tony Hehir supplied a quotation for carrying out a continuous programme of drug testing on employees and counselling workers who had positive results. That quote was for over $15,000 per annum. In January 2001 he provided another quote for just over $10,000 per annum for a lesser programme, but Conroys made no response to it. Conroys did not pursue any drug testing of any of its employees. It would appear that its cost, in the context of the parlous financial position of the Abattoirs, was a major inhibiting factor.
On 3 May 2001 there was a meeting of the Safety Committee, which had changed its name to the Group Occupation Health & Safety Committee. Part of the minutes recorded:
… a discussion in what we thought would be problems, we then created a hazard list and priorities (sic) the items. This Committee will then pick an area (sic) work towards solving that problem. The items discussed include the following:
Work space
Manual Handling
Training – knife sharpening – job training
Machinery – cutters
Temperature – climate – noise
Water – hot/cold water, identification of taps
Chemicals
Services – electricity – gas
Traffic – driveways, paths, defined roadways
Drugs – alcohol, illicert (sic)
From this list we chose the most important in priority. These are:
Manual handling    1
Training              2
Work space         3
Noise                 4
Over the next few months we will be discussing the manual handling problem and endeavour to fix the problems as they arise. …
There was no evidence about who had raised illicit drugs at that meeting as being a potential problem.
In addition to meat workers which it had directly employed Conroys also obtained additional casual workers from Rexco, a labour hire company. In early July 2001 Tom Northcott detected John Sarantou, who was one of the Rexco workers, smoking marijuana in the change room. Tom Northcott did not report him to Vaughn Sampson. He told him to stop smoking and if he caught him smoking marijuana again he would be reported to Vaughn Sampson. He took no other action about the incident.
On 12 July 2001 a Conroy’s meat worker, Ken Burns, rang Channel Seven using a false name. He told them some meat workers were openly smoking dope in the change rooms of the Abattoirs and offered to sneak in a camera to film it. Later Rohan Wenn phoned Burns and discussed the matter with him. After the Abattoirs had re-opened after its mid year maintenance shut down Rohan Wenn met Burns on 27 July near the Abattoirs and equipped him with a small camera and recorder. During work breaks on that day Burns used this camera and recorder to film a number of meat workers in the change rooms smoking what was apparently marijuana. It included vision of one such meat worker, who was apparently smoking marijuana, talking to Wayne Farrugia, the team leader, who seemingly took no notice of it. In addition to showing marijuana smoking the film also showed meat workers in the change rooms flagrantly breaching the prohibitions on eating and drinking there.
On 30 July 2001 Rohan Wenn arranged for Burns again to secretly film what was occurring in the change rooms. He again obtained vision of some meat workers obviously smoking marijuana. While this camera was then operating Tom Northcott came to the entrance of the change rooms. The recorder on the camera picked up some whistling and someone saying “Tom, Tom, Tom” to warn those breaching the rules to conceal their activities. The sound recorder then picked up Northcott saying to the meat workers at large in the change rooms words to the effect that there was to be an AQIS inspection on the following Wednesday and there was to be no eating or smoking on that occasion.
Soon afterwards Rohan Wenn recorded an interview with Burns about the marijuana smoking at the Abattoirs and Burns’ assertion that management knew about it. There is some doubt whether the whole of what Burns said in that interview is recorded in the tapes which have been tendered. He may have said more than was disclosed in the exhibit. Later Rohan Wenn had a camera man film the silhouette of his sound recordist’s head against the skyline of the port of Port Pirie. This was so that extracts from the recorded interview with Burns, with his voice altered beyond recognition,[9] could be played while the film of the silhouette was shown to make it appear as if it was an anonymous meat worker speaking. On his return to Adelaide Rohan Wenn spoke with Graham Archer and showed him the film which Burns had obtained.
[9] The process was called "Darth Vadering".
For reasons which were not apparent on the evidence, in early August 2001 Vaughn Sampson instructed Tom Northcott to increase his surveillance of the change rooms to detect workers who were breaching the rules. Thereafter, Northcott attended at the change rooms during workers’ breaks much more often than he had done previously. On 3 August 2001 Wayne Farrugia became the production supervisor for Conroys. Since the beginning of that year he had also been assisting Darryl Dunstall. Although he was aware of regular marijuana smoking occurring in the change rooms, he had not reported it to his superiors or done anything else about it.
On 6 August Tom Northcott detected a meat worker, Rodney Wilmington, smoking a cigarette in the change rooms and reported him to Vaughn Sampson who issued him with a first official warning. On 8 August 2001 Tom Northcott saw a meat worker, Troy Kiriakou, smoking a cigarette in the change rooms. He reported it to Vaughn Sampson who issued a third and final warning to Kiriakou which meant that he could be dismissed if he again breached any company rules.[10] On 8 August Tom Northcott also reported Matthew Ryder and Brad Adrians for smoking cigarettes in the change rooms and 9 August Vaughn Sampson issued them with official first warnings. On 9 August Tom Northcott detected Mick Willis smoking a cigarette in the change rooms and reported him to Vaughn Sampson who issued a first official warning against him. Similarly on that day Tom Northcott detected Greg Blight smoking a cigarette and an official warning issued against him.
[10] On 2 June 2000 Kiriakou had received a second warning after Darryl Dunstall had observed him smoking a cigarette in the amenities area.
On 9 August at about 12.30 pm Tom Northcott had detected John Sarantou again smoking marijuana in the change rooms. This time he reported it to Vaughn Sampson. Sarantou was sent home and Rexco was informed that he was not to come back to Conroys. As he was not a Conroys’ employee it was not necessary for Conroys to formally dismiss him, but what occurred was a defacto dismissal of him.
On Wednesday 15 August 2001 Rohan Wenn again went to Port Pirie with his cameraman Mark Wilkinson and his sound recordist Toby Williams. They arranged for Ken Burns to take some swipes of areas in the change rooms which Rohan Wenn later tested with a drug detection spray. This apparently revealed the presence of marijuana which confirmed that it was marijuana which had been smoked in the change rooms, but it did not give any indication of when this might have occurred.
Up until 15 August the defendant had not approached Conroys about what was being alleged by Ken Burns or about what had been caught on film by the hidden camera. What contacts occurred between Rohan Wenn and Andrew Conroy and Vaughn Sampson on that day were the subject of much disputed evidence and will be dealt with later. It is not in dispute that Andrew Conroy refused to give an on-camera interview as requested by Wenn. Wenn was given a tour of the change rooms and was supplied with copies of Conroy’s Drug and Alcohol Policy and the warning letter given to Mick Willis. Some film of the outside of the Abattoirs was taken from the roadway and an earlier film of the Abattoirs was obtained from the local TV station. On this occasion the silhouette of Toby Williams was shot against the background of the Port Pirie waterfront. Later that day the defendant’s team returned to Adelaide.
On Thursday 16 August Rohan Wenn drafted a script for a programme on the use of drugs in abattoirs and he discussed it with Graham Archer. Although the script was by no means then finalised, it was decided that the story should be a segment in the Today Tonight programme to be shown on Monday 20 August. On 16 August Rohan Wenn contacted and interviewed on camera Tony Hehir, although he was then unaware of Hehir’s previous dealings with Conroys. Hehir spoke of problems of drug use in work places and of his reaction to the film taken by Burns. The script for the proposed segment evolved during the course of the day. Graham Archer instructed Rohan Wenn to contact Andrew Conroy again to see if he could get him to agree to an interview on camera. Late on that day Graham Archer wrote the scripts for three promotional segments to be used for the story.[11] He then went interstate on holidays, although there was apparently some telephone contact with him at various times about some aspects of the matter by Frank Pangallo who became the acting producer in his absence.
[11] I will refer to these segments as "promos" which was the term used by the defendant's employees.
Shortly before 2.15 pm on Friday 17 August Tom Northcott detected a meat worker, Dean Piper, smoking marijuana in the change rooms. He reported it immediately to Vaughn Sampson. As Piper was also a Rexco worker he was stood down and Rexco was informed that he was not to come back to Conroys.
Earlier that day Rohan Wenn had contacted Andrew Conroy who by then was back in Adelaide. For the first time he told him that Channel Seven had film of meat workers smoking dope at the Abattoirs and it showed a supervisor being aware of it. Rohan Wenn would not tell Andrew Conroy anymore about what was alleged unless Andrew Conroy agreed to an interview on camera, which Andrew Conroy declined to do.
Just before 7 pm on 17 August the defendant broadcast at the end of its Today Tonight programme on that evening a promo of the yet to be finalised story which it intended to show on Monday 20 August (“the in-show promo”). The contents of this in-show promo were as follows:

Sound

Vision

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

Head shot of Leigh McCluskey.

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

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

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

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

Meat workers in the change rooms smoking pipes.

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

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

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

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

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

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

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

Head shot of Leigh McCluskey.

The disguised voice was that of Ken Burn with parts of what had been recorded on 15 August and with the tone and pitch altered so that his voice could not be recognised. In the pictures taken in the change rooms the faces of meat workers who were not smoking had been pixelated. The in-show promo lasted for approximately 30 seconds and was only broadcast once.

There were two other promos for the proposed Monday night story about Conroys’ Abattoirs which were broadcast by Channel Seven after the in-show promo. One was a 30 second promo (“the 30 second promo”) whose contents was as follows:

Sound

Vision

Unidentified voice: “On Today Tonight. Stoned at work.”

Meat workers smoking pipes in the change room.

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

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

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

Meat workers smoking pipes in the change rooms including a close up of a pipe.

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

Silhouette of a head against a background of a port.

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

More pictures of meat workers smoking pipes in the change rooms.

Then followed promotions for other stories relating to a pink Cadillac and a survey of bread makers.

The second subsequent version of the promo was very similar to the 30 second promo but only lasted for 15 seconds (“the 15 second promo”). Its contents were:

Sound

Vision

Unidentified voice: “On Today Tonight. Stoned at work.”

Meat workers smoking in the change rooms.

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

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

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

Meat workers smoking pipes in the change rooms.

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

Silhouette of ahead against a background of a port.

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

Meat workers smoking pipes in the change rooms.

The three promos showed seven meat workers smoking what appeared to be marijuana and some on more than one occasion. These seven included the Rexco workers Sarantou and Piper who had been dismissed by Conroys before the promos were shown.
When the in-show promo was broadcast by the defendant it was estimated that it then had a viewing audience of between 204,000 and 207,000 people in the metropolitan area of Adelaide. Any viewers through the towers in Port Pirie and surrounding areas are not included in this figure. Between 11.04 pm on 17 August and 6.07 pm on Monday 20 August one or other of the two subsequent promos were broadcast on about 31 occasions throughout the day and night on Channel Seven when its estimated audience varied between 10,000 viewers and 220,000 viewers plus those in Port Pirie and surrounding areas.
People who saw the promos and who identified Conroys as the Abattoirs concerned spoke to Andrew Conroy and Vaughn Sampson. Tom Northcott was again instructed to remain in the change rooms during the major breaks to ensure there was no smoking there. On Monday 20 August Andrew Conroy instructed the plaintiffs’ solicitors in the matter. They wrote that day to the defendant alleging that the promos and the proposed story were defamatory and requiring an undertaking the programme would not be shown until Conroys had had the opportunity to consider and approve its contents. The defendant did not give the undertaking and the 1^st plaintiff obtained an urgent interim injunction from His Honour Judge Muecke of this Court preventing the programme being shown that night. On Today Tonight on 20 August Leigh McCluskey stated that the proposed programme on drug workers at an Abattoirs could not be shown for legal reasons.
On Monday 20 August 2001 Wayne Farrugia detected Wayne Thompson, a meat worker, smoking a cigarette in the change rooms and Vaughn Sampson issued a first official warning against him.
On 21 August the defendant produced a script of a programme which it gave to Conroys.[12] On 24 August Andrew Conroy swore an affidavit in support of an application for a permanent injunction against the defendant broadcasting its proposed programme. On 27 August the defendant’s solicitor, Peter Campbell, filed an affidavit in opposition to the continuation of the interim injunction. After hearing extended argument, and briefly reserving his decision, Judge Muecke on 31 August 2001 injuncted the defendant from broadcasting the proposed programme until further order.
[12] Wenn claimed that Frank Pangallo altered parts of his script in an apparent effort to placate Conroys and it included assertions which Wenn believed were not correct. This will be dealt with later.
On 3 September 2001 there was a meeting of the Conroys Occupational Health and Safety Committee held at which Andrew Conroy was present. The minutes record as follows:
(Andrew) Conroy spoke to the Committee regarding the events of the previous 3 weeks. Mr A Conroy stated that the Company would stop at nothing to rid the site of people using illicit drugs. The company will do what it has too (sic), to get the results it needs and that is ‘No drugs at Conroys Port Pirie Abattoir’. This Committee supports the Company totally.
Also on 3 September 2001 Andrew Conroy, Vaughn Sampson and Josephine Bruce interviewed individually each of the five meat workers, McDowell, Bateson, Zberski, Anderson and Fitzgerald, who had been shown on the Channel Seven film as smoking marijuana, and also Wayne Farrugia. On 5 September 2001 Conroys terminated the employment of each of McDowell, Bateson, Zberski, Anderson and Fitzgerald for having smoked marijuana in the change rooms as shown on the Channel Seven film.
After some debate, and after having taken legal advice, Andrew Conroy decided that Wayne Farrugia should be suspended without pay until 14 September. The letter of 6 September implementing this decision sent to Wayne Farrugia based his suspension on his breach of duty as the Production Supervisor to report the smoking of marijuana to senior management.[13] At about the time this decision was made there was a further meeting between Andrew Conroy, Vaughn Sampson, Wayne Farrugia and his wife at which his wife protested at any penalty being imposed on her husband. Vaughn Sampson did not agree with the decision made by Andrew Conroy to suspend Wayne Farrugia without pay. He secretly arranged for Josephine Bruce to deliver to Wayne Farrugia’s mother a sum of money equal to the wages for the period of the suspension. This money was withdrawn from an account in the name of the Port Pirie Abattoirs Social Club which was controlled by Vaughn Sampson and which contained money derived from unauthorised sales of offal from the Abattoirs to fishermen. Andrew Conroy was unaware until the trial in this action of this “under-the-table” payment made to Wayne Farrugia to negate the financial consequences of his suspension.
[13] At this time Conroys were unaware that the secret camera film had been taken on 27 and 30 July and apparently were under a misapprehension that it had been taken after Farrugia had been appointed to be Production Supervisor on 3 August.

Paul McDowell brought proceedings in the Industrial Commission against Conroys for unfair dismissal. He alleged that it had not been proved that what he was seen smoking on the hidden camera film was marijuana and that in any event Andrew Conroy had previously acquiesced in him and other meat workers smoking marijuana in the change rooms. These proceedings were heard in February 2002, the evidence of McDowell was rejected and the dismissal was confirmed.
Initially Conroys was the only plaintiff in this action. Shortly before the action was referred for trial on 19 April 2004 Andrew Conroy was added as a 2^nd plaintiff and the Statement of Claim was consequentially amended.
Part of the relief sought in the Statement of Claim was a permanent injunction against the defendant broadcasting the story which it had proposed to broadcast in August 2001. With the passage of time, not surprisingly, the defendant no longer intends to broadcast that precise story. At the trial it amended is Defence to withdraw its admission of the plaintiffs’ allegation of its proposal to broadcast a story in those terms. It was accepted by both counsel at the conclusion of the trial that I should deal with the plaintiffs’ claim for damages arising out of the broadcast of the promos but I should not deal with the application for the permanent injunction. In the light of these reasons there may need to be a further application to deal with what, if any, injunction should be granted over any aspect of the matter which the plaintiffs contest should be broadcast by the defendant.
The witnesses
It is necessary to make findings about the credibility of a number of witnesses where their veracity was put in issue. I will deal with the conflicts in the expert evidence separately as that does not involve issues of credibility.
I accept the submissions of the plaintiffs’ counsel that Rohan Wenn was shown to be a liar and his evidence should not be accepted where it is in conflict with that of other witnesses or was not supported by other evidence.
Rohan Wenn’s evidence-in-chief was that when he spoke with Andrew Conroy and Vaughn Sampson in Conroys’ office on the morning of 15 August 2001 he told them that he had reason to believe there was wide-spread marijuana use at the plant, which was a breach of AQIS Regulations, that he had reason to believe management knew what was going on, which Andrew Conroy denied, and that Wayne Farrugia had been filmed talking to a worker while he was smoking. He also claimed that he had toured the change rooms and had been given copies of the Drug and Alcohol Policy and the letter of warning at that visit on the morning of 15 August and not on a subsequent visit later in the day. Andrew Conroy and Vaughn Sampson both said that they had only been told by Wenn that he was interested in work safety issues and there had been no mention of drugs or secret film on that morning. Andrew Conroy and Vaughn Sampson said the meeting had been quite short in that Wenn had indicated that he was only prepared to talk to them in an interview on camera and they had said they were not prepared to talk on camera. Wenn had then left, although saying that he would make further contact with Andrew Conroy when he returned to Adelaide on the following Friday.
At the time when Wenn entered Conroy’s offices he was wearing a lapel radio microphone which could be picked up on the recording equipment attached to the television camera which Mark Wilkinson had positioned outside the main gates of the Abattoirs. Enough of the conversation which occurred in and near the office was picked up by that recording equipment to make it clear that the version of the conversation of Andrew Conroy and Vaughn Sampson is correct and there was no detailed conversation in which Wenn made the allegations contained in his evidence-in-chief.
Wenn maintained that when he entered the Conroy’s office block he was unaware that his radio microphone was switched on. If he had been aware it was switched on he would have been committing an offence under Section 4 of the Listening and Surveillance Devices Act 1972 as clearly Andrew Conroy and Vaughn Sampson were not consenting to any private conversation being recorded, and indeed were not aware that it was being recorded at all. The evidence of Mark Wilkinson and Toby Williams about how this conversation was recorded makes it highly likely that Wenn secretly switched on his radio microphone as he entered the Conroy’s office. His evidence about not knowing that it was switched on was a deliberate ploy to avoid the consequences of being found to be in breach of the Listening and Surveillance Devices Act. Having been told by Andrew Conroy at the gate that he was not prepared to give an interview on camera he went into the Conroy’s office in the hope that he could secretly record some dialogue with Andrew Conroy and/or Vaughn Sampson which he might later be able to use in his story.
In approaching Andrew Conroy on that day and merely telling him that he was investigating a matter relating to occupational health and safety Rohan Wenn was hoping to be able to get an interview on camera with Andrew Conroy or Vaughn Sampson in which he could film their unprepared responses to the allegations of drug taking and the knowledge of it of Wayne Farrugia. It was an attempted ambush and to get on film unprepared, ill-considered and possibly emotive responses from Conroys to his allegations. However, Wenn well understood that any defences to subsequent defamation actions of fair comment and qualified privilege required that he should have given Conroys a reasonable opportunity to respond to his allegations. Wenn’s evidence-in-chief about having put the allegations to Conroys on 15 August was a concoction which he had to resort to to give a basis for defences to the plaintiffs’ claim and to comply with journalistic ethics.
I also reject Wenn’s evidence that he was given the copies of the Drug and Alcohol Policy document and the letter of warning on the morning of 15 August. The film of him leaving Conroy’s office that morning is inconsistent with him having any such documents with him at that time. The evidence of Andrew Conroy and Vaughn Sampson is to be preferred on what occurred on that day.
The evidence of Rohan Wenn about what occurred on 15 August is so discredited that it casts a substantial doubts on whether he has told the truth about other matters where there is no corroborative evidence. For this reason I do not accept his evidence about what passed between himself and Ken Burns, other than where it was recorded on film and about communications which he alleged he had with AQIS on 16 August. It is significant that he prepared no notes or any other document which contemporaneously recorded anything which occurred in relation to his preparation of the story.
Paul McDowell was one of the meat workers shown on the promos smoking marijuana and he was subsequently dismissed by the defendant. He was called by the defendant. He was not a credible witness. There were such substantial variations between what he said in the interview at Conroys on 3 September 2001, his signed written statement which was tendered to the Industrial Court in his reinstatement proceedings, his evidence given at the Industrial Court hearing and his evidence in this Court that he cannot be believed on anything where his evidence conflicts with that of any other witness. I reject his claims that his signed statement tendered to the Industrial Court and the transcript of his evidence in the Industrial Court were incorrect. His demeanour in the witness box was unimpressive.
The defendant put in issue the truthfulness of the evidence of Andrew Conroy that he had no knowledge at the relevant times of any marijuana smoking in the change rooms.[14] On this topic his evidence was in conflict with that of various other witnesses, and it is now necessary to resolve those conflicts. It is a difficult and finely-balanced exercise. My instinctive reaction to his evidence-in-chief and cross examination during the plaintiffs’ case was that he was a convincing and truthful witness[15], but it has been necessary to readdress what weight is to be given to his evidence when it is assessed against that of various subsequent witnesses. As already stated where his evidence conflicted with that of Rohan Wenn it is clear that he was truthful on those matters. While that is a factor in favour of his overall credibility it does not necessarily follow that he was being wholly truthful in everything else which he said. It must also be borne in mind that Andrew Conroy was not an entirely independent or objective witness in this trial: he has a substantial personal stake in the outcome of the action.
[14] Andrew Conroy conceded that he was aware of vague rumours about marijuana smoking at the Abattoirs. Later in these reasons I will make findings about what he did, and did not, know.
[15] Near the end of the trial he was recalled to give evidence in rebuttal to the evidence of Gerrit Westerlaken.
Gerrit Westerlaken started work at Conroys’ Abattoirs in 1994. He and Andrew Conroy knew each other as fellow workers at the Abattoirs. In late 2000 Westerlaken asked Vaughn Sampson for a change of his duties because of problems he was having with his health, but his duties were not changed. As a result he resigned and left Conroys’ employment on 15 March 2001.
It was common ground that after Westerlaken left Conroys’ employment there were two casual meetings between him and Andrew Conroy in the vicinity of the Woolworths Supermarket in Port Pirie which were a few weeks apart. Westerlaken’s evidence was that at the first of these meetings Andrew Conroy had said to him words to the effect that he was surprised that he had left the Abattoirs and asked him why. He replied to the effect that it was because Vaughn Sampson would not change his duties and he was not happy about the marijuana smoking. He said something to the effect that there were several people Andrew Conroy should get rid of if he wanted to keep the place running properly and also get rid of the marijuana smoking. Andrew Conroy responded to the effect “Is that still going on? I am surprised” and Westerlaken replied to the effect, “It is, believe me”. Andrew Conroy said words to the effect that he thought it had been taken care of and he would look into it. In the second conversation Westerlaken stated that Andrew Conroy had said words to the effect that he had delved into the problem which he had mentioned regarding marijuana smoking and that it had been dealt with or finished. Andrew Conroy largely agreed with Westerlaken’s version of the substance of these conversations, albeit that because of the passage of time neither man had any precise recollection of what was said.
The major, and crucial, dispute on this topic is when the conversations occurred. Westerlaken said the first was within a few weeks of him leaving the Abattoirs which would place it in about April 2001. Andrew Conroy said it was after the Channel Seven promos had been broadcast which would place it in about late August or September 2001. On the balance of probabilities it is likely that Westerlaken is correct about the dates of these conversations. If the conversations were as late as August or September 2001, when on Andrew Conroy’s other evidence he believed that the previous problem with such smoking had been remedied, it is strange why he did not then ask Westerlaken how he knew this as he had not been at the Abattoirs for many months and why he did not press him for details of names, dates and places about such smoking. It is also surprising that if the conversations were in September 2001 Andrew Conroy’s response was not to say that as a result of the Channel Seven broadcasts five meat workers were, or were about to be, dismissed for smoking marijuana.
Both Andrew Conroy and Vaughn Sampson gave evidence of a conversation between them which was said to have resulted from Westerlaken’s comments about marijuana smoking to Andrew Conroy. I doubt that the conversation related by Vaughn Sampson, if it occurred, was one resulting from Westerlaken’s comments to Andrew Conroy. Sampson said that Andrew Conroy did not mention Westerlaken by name, but referred to having been spoken to by “an old mate”. There was no evidence that Andrew Conroy regarded Westerlaken as “an old mate” or that he ever referred to him as that. Again, if such a conversation had taken place after the Channel Seven promos had been broadcast, it is strange that Sampson did not seek more details of the allegations made by Westerlaken from Andrew Conroy or Westerlaken himself. For reasons to be given below I do not place any great weight on the evidence of Vaughn Sampson and I am sceptical about his explanation that he did not pursue the matter with Andrew Conroy because Andrew Conroy appeared so angry about it.
Westerlaken was an unsophisticated, but apparently honest, witness. It was not suggested that he had any motive to give false evidence. The plaintiffs’ counsel merely submitted that he was mistaken in his evidence about the dates of the conversations. He was unshaken in cross examination. On balance I prefer his evidence to that of Andrew Conroy as to what was said between them and as to when it occurred.
Matthew Ryder, a meat worker, gave evidence for the defendant that in early 2001 he was smoking marijuana in the change rooms when he exhaled marijuana smoke just as Andrew Conroy unexpectedly walked by. Andrew Conroy did not react to it. Ryder, and Leigh Warwick, another meat worker who witnesses it, both immediately feared that Andrew Conroy would dismiss Ryder on the spot for marijuana smoking. The arousal of this fear is what made the incident stick in their memories. Andrew Conroy in his evidence said he had no recollection of Matthew Ryder blowing marijuana smoke in his face in the change rooms.[16] The evidence of Matthew Ryder on the topic was generally supported by that of Leigh Warwick. There was no suggestion there had been any collusion between them. Matthew Ryder in his demeanour was the most impressive of the meat worker witnesses who had been smokers of marijuana. I reject the plaintiffs’ contention that Ryder and Warwick were mistaken about Andrew Conroy having walked through the cloud of smoke. Their fear that Ryder was about to be in big trouble with Andrew Conroy was well-based, although it was not fulfilled. On balance I am not prepared to accept Andrew Conroy’s denial that he did not walk through any cloud of marijuana smoke exhaled by Matthew Ryder.
[16] While the defendant's counsel put to Andrew Conroy in cross examination that Ryder had blown the smoke into his face Ryder was not cross examined on whether he had told the defendant's solicitors that he had blown the smoke into Andrew Conroy's face rather than, as he stated in his evidence, Andrew Conroy had walked through a cloud of marijuana smoke which he had exhaled.
I reject any suggestions in the evidence of Paul McDowell that Andrew Conroy was aware of either him or any other meat worker smoking marijuana at the Abattoirs.
Other than on the topic of his knowledge of the meat workers smoking marijuana at the Abattoirs, and subject to any other express findings to the contrary, I accept the other evidence of Andrew Conroy.
I accept the defendant’s contention that the evidence of Vaughn Sampson should be rejected that he did not know that marijuana smoking was occurring in the change rooms prior to August 2001. He was not an impressive witness and I view the whole of his evidence on disputed matters with some diffidence. However, as stated above, I acknowledge that his version of the dealings with Rohan Wenn on 15 August 2001 were substantially correct. His credit was impaired by his underhand payment to Wayne Farrugia to avoid the consequences of his suspension.
Vaughn Sampson kept a hand written diary in which he recorded, apparently contemporaneously, numerous matters affecting his management of the Abattoirs. Substantial extracts from this diary were tendered. They give a good insight into Sampson’s character and his attitude to the many problems which beset the Abattoirs. He used the diary as an emotional safety valve and expressed in it his frequent feelings of anger, frustration and the like. Doubtless he did not ever expect that its contents would become evidence in a bitterly contested court case!
Of particular interest in the diary was an entry for 17 August 2001, the day the first promo was shown. It read:
Channel 7 drug thing happening.
Alleged that:
Dope smoking in amenities.
Wayne seen on video as people use?
Fuck who cares!!
Put off Piper, suspected smoking dope in toilet, caught by Tommy Northcott. …
The words “Fuck who cares!!” were crossed out with a series of horizontal lines which made it almost, but not quite, impossible to read what Sampson had written. Sampson said he had crossed them out, but he could not say why he had done so. When pressed for a reason he said, “I probably crossed them out at the time I would think because of what I wrote.”[17] His evidence about the crossing out of these words was unconvincing and it is most likely that he tried to obliterate them to avoid them coming to light in this trial. When he was cross examined about what had been crossed out he initially disingenuously avoided owning up to what were the words which he had written. His evidence on the topic had the hallmarks of a consciousness of guilt.
[17] At T1454 he said he possibly had crossed them out at the time of writing.
In addition to the adverse effect on his credibility, the entry of “Fuck who cares!!” was a strong indication of frustration by Sampson about the long-running issue of meat workers smoking marijuana and Conroy’s reluctance to stamp it out. This entry, and other parts of the diary, show that Sampson’s attitude was that provided he could obtain acceptable scores on the AQIS audits of the Abattoirs, which he always did, he did not intend to risk expensive and troublesome disputes with the Union and losing valuable parts of his workforce by confronting the marijuana smoking issue in a way which would properly address it. His approach in this, and other matters, was essentially a pragmatic one. His regard for the truth in his evidence was similarly pragmatic.
I accept the evidence of Darren Munro, a team leader, that at a team leaders’ meeting shortly before mid 2001, which was attended by Vaughn Sampson, another team leader raised the issue of marijuana smoking in the change rooms and Sampson had responded to the effect, “We can’t get rid of half the workforce, we would lose all of our experienced workers. We have got a big order, we need people for work.” Munro’s evidence of this meeting is supported to some extent by the evidence of Wayne Farrugia. I reject Sampson’s evidence that any such statements by him were relating to cigarette smoking and not to marijuana smoking. Cigarette smoking only attracted a warning whereas marijuana smoking required instant dismissal.
I accept the evidence of Gerrit Westerlaken that in the second half of 2000 when he spoke to Vaughn Sampson and requested a change of his duties he also said to him words to the effect, “I am not very happy about all the marijuana smoking that is going on” and Sampson replied, “That’s well in hand. I don’t think you need worry about that.” Sampson’s reply is consistent with the negotiations with Tony Hehir proceeding at that time for the implementation of a drug testing programme. I do not accept Sampson’s denial that Westerlaken did not mention marijuana smoking.
I accept the evidence of Leigh Warwick that in early 2001 Sampson approached him while he was smoking a cigarette in his car in the Abattoirs car park and said to him words to the effect that if he was smoking that “other shit” he should “piss off in your car and do it somewhere else”. I also accept the evidence of Warwick that about three months before the promos were broadcast Vaughn Sampson said in an address to a group of workers words to the effect that he did not want workers smoking marijuana at work and, if they were to do it, it should be done somewhere else.

Both Paul McDowell, and another meat worker Adrian Cooper, gave evidence that on one occasion Vaughn Sampson observed McDowell smoking marijuana through a water bong in the change rooms. Sampson denied it. I do not place any weight upon the evidence of McDowell on the topic. Cooper was not a particularly impressive witness. He conceded there was some possibility that Sampson may not have seen the bong. On balance I am not prepared to find it proved that Sampson did see McDowell using this bong, and I do not rely on this incident in making my other findings about the knowledge of Vaughn Sampson of marijuana smoking in the change rooms.
Wayne Farrugia found himself in a very difficult position. His loyalty to his fellow meat workers caused him to breach his duties to Conroys after he obtained promotion by not reporting the marijuana smoking which he regularly observed in the change rooms. He was treated relatively leniently by Conroys when his breaches of duty became known and he has cause to be grateful to Conroys for this. In his evidence he said that he had not observed smoking of marijuana in the change rooms after he became the Production Supervisor on 3 August 2001. However, in his statement made on 3 September he said that with the increased surveillance the smoking of marijuana was diminishing. That was inconsistent with his evidence. If he had not seen any marijuana smoking after 3 August, it is highly likely that he would have said that on 3 September as the case then being made against him by Conroys was that he had only breached his duties after 3 August 2001. I do not accept his evidence that there was no smoking of marijuana in the change rooms after 3 August 2001.
The defendant challenged the evidence of Tom Northcott that after he became the Safety Co-ordinator he did not observe any marijuana smoking in the change rooms other than by Sarantou and Piper which is mentioned above. I do not accept his evidence on this point. As mentioned earlier, on 30 July he was recorded giving a warning to meat workers in the change rooms about an AQIS inspection on the following Wednesday. This warning was not directed merely to cigarette smoking, but also to smoking of marijuana. He regularly gave such warnings to meat workers. Like Wayne Farrugia, Tom Northcott was in the awkward position of being a former meat worker who had been promoted to a management position. He had to walk an awkward line of trying to keep on-side with both his former fellow workmates and the company management. His ultimate siding with management, for which he has paid a significant price, means that he was not an entirely independent and objective witness. I am not prepared to accept his evidence on disputed matters relating to the marijuana smoking where it is contrary to that of a number of other witnesses.
Ken Burns did not give evidence. Any statements which he made to Rohan Wenn are not evidence of the objective facts contained in them although insofar as they are proved they go to relevant states of mind of the defendant’s servants. As stated earlier I do not accept the evidence of Rohan Wenn about what he was told by Burns unless it is recorded on film.
I do not accept the submission of the plaintiffs’ counsel that a Jones v Dunkel inference should be drawn from the defendant’s failure to call Burns. The emails which Burns sent to Rohan Wenn and the defendant’s solicitors shortly prior to the start of the trial show he was not then in the defendant’s camp. In any event a Jones v Dunkel inference can only assist the plaintiffs where it relates to some issue on which the witness could give admissible evidence and which would otherwise be decided in favour of the defendant: Flack v NCA (1997) 150 ALR 153, and upheld on appeal: Chairman NCA v Flack (1998) 156 ALR 501. I am not aware of any such issue in this trial.
I generally accept the evidence of Graham Archer. He had no reason not to believe what he had been told by Rohan Wenn, although that was not always the whole truth.
Identification of the plaintiffs
In their supplementary written submissions counsel for the defendant conceded:
9.It is accepted that some viewers would have understood the meat workers referred to in the first promo to be meat workers employed by the Company, by reason of the (fleeting) depiction of the Port Pirie harbour and skyline in the first promotion.
On the evidence that was a proper concession that the 1^st plaintiff had been identified. It does not matter that the name, or the nature, of the corporate entity were not known by such viewers: Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports 81-675.
Whether Andrew Conroy as the 2^nd plaintiff was identified in the in-show promo was very much in dispute. He was not named. The question turns on the passages in that promo, “Well of course they know what goes on, it’s a case of them turning a blind eye to it” and what the ordinary viewer would have thought “they” and “them” meant in their contexts.
The principles for the test of whether Andrew Conroy has proved that he was identified in that first promo are set out in the following passages from the judgment of Samuels JA in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371-374:
In order to succeed in the action, the plaintiff had to prove, not only that the defendant published the article and that it was defamatory, but she had also to identify herself as the person defamed: … ‘The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to?’ Therefore, publication of and concerning the plaintiff’, an essential ingredient in her cause of action: … could here have been made only to those who, possessing particular knowledge of the plaintiff, were able by that means to infer that the article referred to her.
Accordingly, in order to succeed, the plaintiff had to prove that it was reasonable for persons with such knowledge, who had read the article, to conclude that it referred to her; …
Lord Reid … suggesting taking the ‘ordinary man’ as the guide, and Lord Pearson … postulated the ‘ordinary sensible man’. I might expand this last description by adding, … the qualification ‘not avid for scandal’, although commonly inclined to read ‘between the lines’.
Their Lordships in Morgan’s case … then went on to indicate the manner in which the ordinary sensible reader must be supposed to read the material from which the identification of a plaintiff may be inferred in such cases as this. First, he may be permitted to draw ‘rather far-fetched inferences’ … and is prone to engage in ‘a certain amount of loose thinking’; … secondly, ‘the average reader does not read a sensational article with cautious and critical analytical care’ … and the article here in question may properly be regarded as ‘sensational’. Thirdly, it must be assumed that he may read the article ‘casually and not expecting a high degree of accuracy’. …
It is evident that what is primarily in issue is the reasonableness of the conclusion to which the reader comes, rather than his possession a priori of the attributes employed to define him. To speak of a reasonable inference drawn by a reasonable reader may be circuitous since the impression made by the article tends to establish the nature of the qualities brought to its scrutiny. If there are no rational grounds for the inference sought to be pressed, then, ex hypothesis, the reader did not, on the relevant occasion, muster the attributes which he was bound to bring to his hypothetical task.
…
Finally, there must be evidence capable of satisfying the jury that those with particular knowledge of the plaintiff who, as ordinary sensible readers read the article with the degree of latitude permitted, and who honestly identified the plaintiff as the person referred to, could reasonably come to that conclusion.
…
In my view, the criteria of reasonableness, as established by the cases, are something less than strict. Once the far-fetched inference is permitted, and the requirements of caution and of critical analytical care are rejected, there is no ground for restricting the impression which may reasonably be made by an article such as this to inferences which only rigorous scrutiny can support. …[18]
See also Cornwall v Rowan (2004) 90 SASR 269 at 396-400.[19]
[18] Citations omitted.
[19] The characteristics of the ordinary viewer for this purpose are the same as those set out below in relation to the imputations conveyed by the matters complained of: Steele v Mirror Newspapers above at 363 per Hutley JA.
In paragraph 7 of the Statement of Claim the plaintiffs pleaded that the in-show promo referred, and to was understood to refer to, Andrew Conroy by reason of:[20]
A.     The in-show promo depicted meat workers in the change rooms of an Abattoirs.
B.     The in-show promo showed part of the port of Port Pirie against a skyline of hills. Conroys is the only Abattoirs in Port Pirie.
C.     Andrew Conroy was a joint managing director of Conroys.
D.     Andrew Conroy had primary responsibility within the 1^st plaintiff for the Abattoirs.
E.     Andrew Conroy was part of the management team of the Conroy’s Abattoirs.
F.     Andrew Conroy was actively involved in the management of the Abattoirs.
G.     Andrew Conroy attended at the Abattoirs approximately three days each week.
A, B and C were proved on the evidence. D, E, and F were admitted by the Defence. G was proved in part in that he usually spent at least two days a week at the Abattoirs.
[20] What follows is a paraphrase of parts of the Statement of Claim.
The plaintiffs called evidence from Stephen Napper, a director of Subway Meats, a boning room which dealt with Conroys, although not in relation to its Abattoirs business. He had known Andrew Conroy for over twenty years and regularly did business with him. On 17 August he saw the in-show promo, recognised the skyline of Port Pirie with which he was familiar, identified the Abattoirs portrayed as Conroys and thought that the “they” referred to Andrew Conroy. I accept his evidence.
The plaintiffs also called Guiseppe Maio, who was the plant manager of Conroys Smallgoods business in Adelaide and who had known Andrew Conroy for many years. He also saw the in-show promo on 17 August, deduced that the Abattoirs referred to was Conroys because a port was shown and Conroys was the only Abattoirs he knew which was associated with a port and thought the ‘they” referred to Andrew Conroy. I accept his evidence.
The evidence of Mr Napper and Mr Maio was admissible to show that some viewers did identify the in-show promo with Andrew Conroy, although such evidence is not conclusive as to whether the broadcast did identify Andrew Conroy: Raul Amon International Pty Ltd v Telstra Corporation Ltd [1998] 4 VR 798.
The in-show promo does not provide sufficient context to define “they” and “them” with any precision. Those terms are vague, loose and wide-ranging. The intentions of Burns and the defendant in having used them as to who they might have intended to designate by such terms are irrelevant. I only have to determine whether they encompass Andrew Conroy, and not whether they might also refer to various other persons.
“They” and “them” appear in the context of the phrase “turn a blind eye”. The ordinary meaning of that phrase in conjunction with the rest of the in-show promo would convey there were multiple persons who had a duty to turn an eye to the marijuana smoking which was depicted in the in-show promo and to do something about it.[21] Clearly (and indeed “of course”) one person who would be expected to turn his eye to such marijuana smoking would be a managing director of the operator of the Abattoirs, who was actively involved in its management and who attended there regularly, ie Andrew Conroy. The ordinary viewer acting in the manner described in Steele’s case who recognised the pictures of the port and the skyline as Port Pirie, and in the knowledge that Conroys was the only Abattoirs there, would naturally and reasonably think that Andrew Conroy was one of the persons included within the “they” and “them” in the in-show promo. In reaching such a conclusion the ordinary viewer would be acting reasonably. [22] Andrew Conroy was the public face of the operator of the Abattoirs and his surname was part of the business name of Conroys.
[21] The whole in-show programme is in accusatory tones with such phrases as “caught on camera” and “blatant”.
[22] Knupffer v London Express Newspaper Ltd [1944] AC 116 at 121.
I reject the defendant’s contention that the “they” and “them” in the in-show promo referred only to the other meat workers depicted in the in-show promo who were not smoking marijuana. The words in question are not particularly appropriately to describe other meat workers who must have clearly seen the marijuana smoking in their change rooms, but who chose not to be “whistle-blowers”. Even if such meat workers were within the “they” and “them”, it would not be to the exclusion of others who were not depicted as being present such as Andrew Conroy.
On this question of identification it is not helpful to explore whether the “they” or “them” referred to the management of Conroys. It is not necessary to go that far and to pursue a class-libel. Even if it is a class-libel of the management team, Andrew Conroy would be within it, and the same result would follow: Cornwall v Rowan above; Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175.
The two subsequent promos did not contain the words, “Well of course they know what goes on, it’s a case of them turning a blind eye to it” or anything similar. Even though Conroys was identified by these two subsequent promos to some viewers, Andrew Conroy was not. The only minor significance of the subsequent two promos in the case of Andrew Conroy is that they contain a slightly different picture of the port and skyline of Port Pirie, and showed the distinctive tall smoke stack of the Smelters, which was not part of the in-show promo. It is remotely possible that a viewer of the in-show promo who did not recognise the background of Port Pirie in that promo, and therefore identify it with Conroy’s Abattoirs, could upon seeing one of the subsequent promos have identified Conroy’s Abattoirs by reason of the more distinctive picture there of Port Pirie and then have related the “they” and “them” in the in-show promo to Andrew Conroy.
It is unlikely that the majority of the viewing audience of any of the promos would have identified either plaintiff as they would not have had the necessary background knowledge of the port and skyline of Port Pirie and of the involvement of Andrew Conroy in the Port Pirie Abattoirs. However, it is likely that many persons who viewed the promos in Port Pirie and surrounding districts would reasonably have made the necessary connections to identify the 1^st plaintiff or both plaintiffs. It is likely that persons associated with the meat and smallgoods trades and Abattoirs in South Australia who viewed any of the promos would have identified the 1^st plaintiff, and those who viewed the in-show promo would have identified Andrew Conroy. Work mates and friends of the seven meat workers whose faces were shown on the promos smoking marijuana would have recognised them and most would have made the connection with Conroys, and if they saw the in-show promo, also with Andrew Conroy. Overall it is likely that more persons would have identified Conroys than identified Andrew Conroy.
The defamatory imputations
Conroys pleaded:
8.The first promotion[23] in its natural and ordinary meaning meant and was understood to mean in relation to the first plaintiff that:
[23] The first promotion, ie the in-show promo.
8.1     meat workers at the first plaintiff’s Abattoirs smoke marijuana during work hours and inside the work premises, namely the change room area with the knowledge and approval of the first plaintiff;
8.2     meat workers at the first plaintiff’s Abattoirs carry out their work while affected by illegal drugs with the knowledge and approval of the first plaintiff;
8.3     the first plaintiff through its management was aware that meat workers at the first plaintiff’s Abattoirs were consuming drugs, namely marijuana, and did nothing to stop that practice;
8.4     the first plaintiff through its managers placed its employees at risk by refusing to discipline employees who they knew were smoking marijuana in the workplace;
8.5     the first plaintiff was negligent in the conduct of its Abattoirs business in that its management knew that employees were consuming marijuana while at work and did nothing to stop the practice;
8.6     the first plaintiff did not care about the occupational health and safety of its employees in that it knew that its employees could get killed by smoking marijuana whilst at work at the first plaintiff’s Abattoirs but did nothing to stop the practice;
8.7     the first plaintiff by its management acquiesced in a practice which involved the unlawful consumption of marijuana on its premises;
8.8     the conduct of the first plaintiff in permitting its meat workers to smoke marijuana at the first plaintiff’s premises created a risk that the first plaintiff’s meat products were contaminated thereby putting the health of the public in South Australia at risk;
8.9     the first plaintiff failed in its duty to consumers of its meat products by putting the health of consumers at risk by permitting its employees to consume marijuana at work at its Abattoirs;
8.10   the first plaintiff’s meat products are unsafe.
At trial the plaintiffs amended the Statement of Claim to add a new paragraph 8B in which they pleaded the same imputations as were in paragraph 8 by reason of the same facts and matters as had already been pleaded for the innuendo for identification of the 1^st plaintiff. This pleading is not relevant. The facts and matters pleaded by way of innuendo go solely to the identification of Conroys and do not bear on any defamatory imputation. The parts of the promos complained of on their face would have been equally defamatory of any other Abattoirs to which they might have referred.
At trial the plaintiffs sought to rely not only on the pleaded imputations but also upon other defamatory meanings which their counsel submitted were within the ordinary and natural meaning of “Risking the safety of their mates, and putting your health in danger. … Well of course they know what goes on, it’s a case of them turning a blind eye to it”.[24] The defendant submitted that the plaintiffs were to be confined to the pleaded imputations. Rule 46A.03 required the plaintiffs to plead all of the imputations on which they relied arising out of the natural and ordinary meaning of the publication. The present law in this State is as set out by White J in his recent judgment in Sands v Channel Seven Adelaide Pty Ltd:[25]
Although there is no Rule of Court requiring a plaintiff to plead imputations where only the natural and ordinary meaning of the words published is relied upon, it is the practice in this State to plead the imputations which the plaintiff alleges. I note that in Chapman v Australian Broadcasting Corporation, Lander J, with whom Doyle CJ and Nyland J agreed, held that the effect of Chakravarti v Advertiser Newspapers Ltd was to require a plaintiff to plead the imputations said to arise, whether the imputations arise out of the natural and ordinary meaning of the words or whether they arise by reason of extrinsic facts and circumstances known by the person to whom the publication was made. There is of course, an obligation to plead the imputations and particulars of the facts and matters relied upon for those imputations where the plaintiff alleges that the published words have a defamatory sense in other than their ordinary meaning. In each case, the pleading of the imputation relied upon informs the defendant of the precise imputation alleged by the plaintiff, and assists in the identification by the defendant of the basis, if any, on which the claim can be defended. Thus the issues between the parties may be narrowed.
[24] The words complained of were all discrete allegations of fact. They are defamatory on their face. The imputations pleaded were generally unnecessary glosses on the words and took the matter no further.
[25] 20 May 2005, Jud No [2005] SASC 182, unreported.

In late 2000 and the early part of 2001 the issue of marijuana smoking at the Abattoirs was not something that would have been unexpected. There had been some history of it and a recurrence would have always been on the cards. The management of Conroys could not have been taken by surprise by it.
There is no evidence that any of the AQIS employees at the Abattoirs were aware of the practice of marijuana smoking. If they had been they would have been obliged to have reported it and AQIS would have had to have taken some strong action about it. The meat workers were aware of this and took care to hide their smoking from the AQIS inspectors. While it is perhaps strange that the AQIS inspectors on the slaughter floor did not observe some overt signs of intoxication the signs of moderate intoxication were not particularly obvious[39]. The failure of AQIS inspectors to notice it does not affect my findings of the intoxication of some meat workers. While it is a factor against the practice of smoking marijuana and the resultant intoxication being known to Conroy’s management, it is clearly out-weighed by the other evidence to the contrary.
[39] Ryder said he could observe such signs, but he was already aware of the marijuana smoking and thus woujld discern them more readily.
In answer to a question in cross examination of “Mr Sampson knew, didn’t he, that people were smoking marijuana”, Tom Northcott replied, “I don’t know. You would probably have to be an idiot not to know that”. His spontaneous and candid retort is not only applicable to Sampson, but to anyone who was closely associated with the activities of the Abattoirs.
I find on the balance of probabilities that at least from January 2001 to 17 August 2001 Andrew Conroy did know that there was a substantial and regular practice of a number of meat workers to smoke marijuana in the change rooms during their work breaks and become intoxicated by it. While he admitted that he was aware of some vague rumours about marijuana smoking he denied knowledge of any marijuana or cigarette smoking whatsoever by meat workers in the change rooms. I do not accept that denial. I base my findings on the conclusions which I have reached above concerning the evidence of Gerrit Westerlaken, Matthew Ryder and Leigh Warwick. I take into account that he was correct in his evidence about the events of 15 August 2001. While I would not wish to base my findings solely upon it, it is probable that he would have seen and smelt marijuana smoke in the change rooms on at least a few occasions. He was aware of at least the possibility of the practice from previous history, from what he had been told by Jason Goodwin’s mother and from what had been said at the Occupational Health and Safety Committee meeting on 3 May 2001. By the time the in-show promo had been shown he knew that Sarantou and Piper had been sent back to Rexco for marijuana smoking. I ignore for my findings on this issue what Burns said to Rohan Wenn and various allegations on the topic pleaded in the Defence which were not the subject of admissible evidence.
I find on the balance of probabilities that at least from January 2001 to 17 August 2001 Vaughn Sampson did know that there was a substantial and regular practice of a number of meat workers to smoke marijuana in the change rooms during their work breaks and become intoxicated by it. I rely on the findings which I made above concerning the credibility of his evidence and on my findings of what transpired at the Team Leaders’ meeting shortly before mid 2001 and of what was said between him and Gerrit Westerlaken and Leigh Warwick. I do not accept his evidence that he was not familiar with marijuana smoke and find it likely that he visited the change rooms fairly frequently and on at least a number of occasions he would have seen, smelt and recognised marijuana smoke there. In respect of Sampson the finding of knowledge of the regular practice of substantial marijuana smoking is stronger than for Andrew Conroy.
In relation to both Andrew Conroy and Vaughn Sampson I do not find that the content of their knowledge prior to 17 August 2001 extended to them knowing that the meat workers depicted in the film taken on 27 and 30 July 2001 were each smoking marijuana in the change rooms on those days. Their knowledge was more general of a substantial practice of a significant number of meat workers to smoke marijuana in the change rooms before work and during their work breaks. That is sufficient to meet the sting of the defamatory imputations on this topic.
As both Andrew Conroy and Vaughn Sampson have been found to have the necessary knowledge it is clear that Conroys as a corporate entity also had that knowledge. While it is not necessary to go into whether those lower in the management echelon of Conroys also had the knowledge, I find on the evidence that they did have it.
“Turning a blind eye”
Unlike knowledge, which once obtained becomes a constant, “turning a blind eye” can be variable. It could occur on some occasions, but not on others. This phrase in the in-show promo meant to the ordinary viewer that the plaintiffs had been turning a blind eye to the substantial practice of marijuana smoking as indicated in the promos. It would have been understood to have referred to a current practice of marijuana smoking and not to any instance of it which was only historical. To meet the sting of the imputations on this topic the defendant has to show that each plaintiff was turning a blind eye up until the time of the broadcasts of the promos to the current practice of marijuana smoking which gave rise to the risks to the safety of other meat workers and to putting the public health in danger. To justify the imputations on this topic the defendant would have to show that the plaintiffs had always turned a blind eye for at least some months prior to the broadcast of the first promo. It is convenient to deal firstly with the issue of what happened in that period up until about the end of July 2001 and then separately with what happened from then until the first promo was broadcast.
In the management of Conroys, Vaughn Sampson had the primary responsibility for the enforcement of the Drug and Alcohol Policy. I find that during the relevant period up to about the end of July 2001 Vaughn Sampson knew of the substantial practice of marijuana smoking by meat workers but acted as if he did not know. In this he “turned a blind eye” to the practice. He was content to do nothing about the practice and thus he acquiesced in it and permitted it. As I mentioned earlier his attitude was that provided he could obtain acceptable scores on the AQIS audits he was not prepared to risk the substantial trouble and inconvenience which enforcing the policy would probably entail. He similarly generally turned a blind eye to the regular infringements by many meat workers in the change rooms to the prohibitions on smoking cigarettes and eating and drinking. Again these were promulgated as part of the MSQA system, but he did not see it as expedient to usually require their enforcement.
The negotiations which Conroys had with Tony Hehir of WorkSafe in late 2000 and early 2001 are not inconsistent with a finding of “turning a blind eye”. The negotiations with Hehir were not taken far enough to be categorised as any attempt to address the problem. It does not matter whether these negotiations were not pursued by Conroys because of financial restraints, fear of conflict with the Union or unwarranted infringements of workers’ personal rights. If drug testing was thought not to be the proper course to take, there were other avenues which could, and should, have been pursued to ascertain the extent of the problem and how it could be quickly and effectively eliminated. The fact is that Conroys did nothing, and the substantial breaches of its Drug and Alcohol Policy continued unabated with their potential prejudice to the safety of its workers and the health of the consumers of its products.
The plaintiffs’ counsel submitted that any turning of a blind eye was inconsistent with the general expectation of the meat workers that they would be instantly dismissed if they were caught red-handed smoking marijuana by Andrew Conroy or Vaughn Sampson. As I have found in relation to Matthew Ryder, Andrew Conroy did not dismiss him, or take any other action, when he became aware he was smoking marijuana. In the relevant period until the end of July 2001 there was no other instance of meat workers being caught red-handed by either Andrew Conroy or Vaughn Sampson to test whether in those circumstances they would have turned a blind eye to it. Tom Northcott turned a blind eye when he caught Sarantou smoking marijuana in June 2001. The fact that the workers may generally have expected Andrew Conroy and Vaughn Sampson to enforce Conroy’s policy by summarily dismissing workers who they personally caught does not prove that they would have done so. If the occasion had arisen it would have tested whether Andrew Conroy or Vaughn Sampson was prepared to continue to turn a blind eye.
I find that during the relevant period up to about the end of July 2001 Andrew Conroy knew of the substantial practice of marijuana smoking by meat workers, but acted as if he did not know of it, and in this he “turned a blind eye” to the practice. As mentioned above he did not dismiss Matthew Ryder, and so he turned a blind eye on that occasion. He was involved in the negotiations late in 2000 and early in 2001 about the employment of Tony Hehir. He could have insisted that the matter be pursued, but he did not. While he left the general enforcement of the Drug and Alcohol Policy to Vaughn Sampson he had the right as the managing director to instruct him to ensure compliance. As he was aware of the substantial practice of marijuana smoking he had a duty as the managing director to ensure that Sampson was taking effective steps to eradicate the problem. In not acting himself, and in not ensuring that Sampson acted, he was turning a blind eye to the substantial and continuing practice of marijuana smoking. Accordingly, if the issue of justification on this topic had to be determined as at about the end of July 2001 I would find that the defendant had justified it.
I now turn to the situation between early August and the broadcast of the in-show promo. In early August Tom Northcott increased his surveillance of the change rooms. Why Vaughn Sampson instructed him to do this is unclear. I doubt Sampson was entirely candid about it. There is a suspicion, but not backed up by any hard evidence, that he may have become aware that Burns was seeking to make trouble over the issue. In any event, as related earlier, Tom Northcott reported a number of meat workers for smoking cigarettes and on 9 August John Sarantou for smoking marijuana and on 17 August Dean Piper also for smoking marijuana. The defacto dismissal of Sarantou was significant. I accept the evidence of Matthew Ryder and Darren Munro that after Sarantou’s dismissal the practice of smoking marijuana reduced and was done more secretly. However, it did continue to some extent. After Sarantou’s dismissal Piper was caught on 17 August which shows that at least Piper had not been deterred by what had happened to Sarantou. I do not accept the evidence of Wayne Farrugia that he saw no smoking of marijuana after 3 August or that of Jason Bateson to the effect that it almost entirely stopped. Once the promos had been shown Tom Northcott’s surveillance of the change room was increased further so that he was there for almost the whole of every break and with the dismissal of five of the marijuana smokers on 5 September it would appear that the practice of marijuana smoking in the change rooms virtually concluded.
The surveillance by Tom Northcott ordered by Vaughn Sampson in early August combined with the dismissals of Sarantou and Piper respectively on 9 and 17 August were all positive steps by Conroys to enforce its Drug and Alcohol Policy. They are inconsistent with Conroys at these times turning a blind eye to a substantial practice of smoking marijuana in the change rooms. Andrew Conroy was aware what was being done in this regard by Vaughn Sampson and Tom Northcott. Hence he also could not be said from early August 2001 to be turning a blind eye. Thus, at the time the in-show promo was broadcast shortly before 7pm on 17 August 2001 it was untrue to say that Conroys and Andrew Conroy were then turning a blind eye to any substantial practice of the consumption of marijuana in the change rooms. (On the evidence of Matthew Ryder, as imprecise as it was, I find that even the reduced consumption of marijuana in the change rooms by meat workers between the defacto dismissal of Sarantou and the broadcast of the in-show promo was still a substantial practice of smoking marijuana, but that Conroys were then doing sufficient about it so that they could no longer be said to be turning a blind eye to it or acquiescing in it.)
The defendant’s counsel sought to counter any such findings by submitting that the attitude of the plaintiffs up until about the end of July was sufficient to substantially justify the defamatory imputations based on “turning a blind eye to it”. I do not agree. As previously stated the meaning of the in-show promo was that the plaintiffs were currently turning a blind eye at the time the in-show promo was broadcast. That had not been the case for about the previous two weeks. The sting of an imputation that someone was then not doing anything to address a serious problem which they knew existed is significantly different from, and greater than, the sting of an imputation that up until about two weeks before they had not done anything to address the serious problem but in the subsequent two weeks they had taken at least some steps to address it.
Accordingly, I find that the defendant has not sufficiently justified the imputations 8.1 and 8.2 (as varied), 8.3, 8.4, 8.5, 8.6, 8.7, 8.8 and 8.9 and those arising from the words themselves “It’s a case of them turning a blind eye to it”. (I find that it is defamatory of a person who would be expected to take action to remedy a serious risk or danger, as the case of both plaintiffs here, to say that they had turned a blind eye to the circumstances giving rise to the risk or danger. It would lower them in the estimation of right-thinking members of the community.[40])
[40] Although it was not put forward by counsel, it could be argued that in the instance of Lord Nelson it was not defamatory of him to say that he turned a blind eye because it led to victory, fame and promotion. However, if his disobedience to orders had not led to victory, it is highly likely he would have been summarily court-martialled and executed on the quarter deck of his commander's flagship as had been Admiral Byng in 1757. In the circumstances of this matter there was no greater public good at stake which might justify Conroys failure to do what it should have done.
While the defendant has made out a defence of justification to all of the defamatory imputations except those based on “turning a blind eye to it” for a short period of two weeks, that is not sufficient to defeat the plaintiffs’ claim, although it will be very significant on the assessment of damages.
I need to deal with the other defences raised in case they are a defence to the unjustified part of the imputations but I will confine myself to some factual aspects of them.
Fair comment
The statement “It’s a case of them turning a blind eye to it”, and the other statements complained of in the promos, are in their context not comments but statements of fact. Viewers were not given sufficient facts in the promos to be able to properly draw their own conclusions about whether a blind eye was being turned. Merely to be told that drug smoking was occurring on a substantial scale and “they know what is going on” is not a sufficient basis to reach an informed conclusion whether “they” were turning a blind eye to the drug smoking. At the best for the defendant they are inter-mingled statements of fact and opinion, but this is not sufficient for a defence of fair comment: Hunt v Star Newspapers [1908] 2 KB 309 at 319-20. Any defence of fair comment fails.
Duty and interest qualified privilege
I do not need to go into whether there was sufficient reciprocity in duty and interest between the defendant and its viewers which could attract such privilege. There is conflicting authority on the point which I need not seek to resolve.[41]
[41] Bowin v Australian Consumers Association, Lindgren J, 6 December 1996, Jud No [1996] 1070 FCA1, unreported, which was criticised by McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd, (2004) ALR 193 at [98-102].
Such privilege, even if it exists, would be defeated by express malice in the publication by the defendant: Horrocks v Lowe [1975] AC 135. The onus is on the plaintiffs to prove such malice on the balance of probabilities and it is not to be lightly inferred: Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 211.
Understandably the evidence of Andrew Conroy about exactly what he said to Rohan Wenn between 15 and 17 August 2001 was somewhat hazy and imprecise when he came to give evidence about it in 2004. Hereunder are extracts from his evidence-in-chief on a vital point[42]:
[42] T210-11.
"A“Look, I believe it was in the second conversation that I asked to see the film.
…
AThe effect of what he said was that he’d show me the film, show me the vision, if I would guarantee an interview or agree to an interview. I don’t think he used the word ‘guarantee’.
…
QIn that conversation, did you make any reference to any other personnel in the plant who’s been dealt with in relation to marijuana.
AYes, I listed or mentioned the fact that we had disciplined people for smoking marijuana – for smoking cigarettes and that there were a couple of people who had been requested not to return to the plant for smoking marijuana.
…
QWhen were those people asked not to come back to the plant.
AI couldn’t be specific on the dates of that.
QIn which year was it, for example.
AIt was in 2001, prior to the vision being taken or prior to Mr Wenn coming to the plant.
QWas it days, weeks or months prior to that.
AMore like weeks, I think.
Q… Did Conroys as at August 2001 source labour from contract labour companies.
AYes, we did.
…
QWhat was the name of the company that you were using in August 2001.
ARexco.
QWere the workers who were caught smoking from Rexco.
AI believe so, yes.
QWas there one or more than one.
ATwo, I believe.
QHow did you become aware of that happening at the time.
AThrough Vaughan (sic) Sampson, I believe.
QDo you know who had communication with either the workers themselves or Rexco about them not being welcome back at the plant.
AVaughan (sic) Sampson.
QDid you have any input into that or did he advise you after it occurred.
AI think it was already done by the time I was aware of it, yes.
QJust going back now to your conversation with Mr Wenn, you made reference to the Rexco employees who had been, in effect, terminated from working at the abattoir.
AThat’s correct.
QDid he say anything, are you able to remember whether he said anything in response to that information.
AI can’t remember any specific detail of what he said.
…”
I accept this evidence and find that on 15 August Andrew Conroy told Rohan Wenn of the defacto dismissal of Sarantou.[43] Wenn, in retrospect quite justifiably, did not believe Andrew Conroy’s other assertion that he did not know of drug use in the change rooms. Thus he may have also not believed this statement about the dismissal of Sarantou. However, it was an objectively verifiable fact and presumably it could have been easily checked by him with any of Burns, other meat workers, Sarantou and/or Rexco. Wenn acted at his peril in deliberately ignoring this assertion. His attitude was he was not going to allow an inconsistent assertion to stand in the way of sensationalising the story by publishing the “grab” from Burns “It’s a case of them turning a blind eye to it” in the same way as he ignored Andrew Conroy’s denial of knowing about the marijuana smoking by publishing “They know what goes on”. Wenn could not honestly have believed that all of what was said about turning a blind eye was true.
[43] There is other more explicit evidence of this statement in paragraph 38 of the affidavit of Andrew Conroy sworn on 24 August 2001 (P4), but I need not rely on it. Its evidentiary status for this purpose is uncertain.

Gaudron, McHugh and Gummow JJ in the High Court said in Roberts v Bass[44]:
Improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive . But, leaving aside the special case of knowledge of falsity, mere proof of the defendant’s ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive. …[45]
From the fact that Wenn knew of the falsity of Conroy’s turning a blind eye to the practice of marijuana smoking, or was at least reckless about its truth, I infer that he was actuated by an improper motive and malice. “It’s a case of them turning a blind eye to it” was put forward as part of the first promo. There was no legal duty on him or the defendant to make this communication to the viewers. His malice actuated the publication, or at least of this part of it.
[44] (2002) 212 CLR 1 at 21.
[45] Underlining added.
In receiving the information from Andrew Conroy about the defacto dismissal of Sarantou on 9 August, Rohan Wenn was acting in the course of his employment by the defendant. Likewise he was acting in the course of that employment in what he told Graham Archer about what he had ascertained from the plaintiffs. The compilation of the promos was a joint effort of Rohan Wenn and Graham Archer both acting as servants of the defendant.[46] I accept Archer’s evidence that Wenn did not inform him of what Andrew Conroy had told him about Sarantou’s dismissal. Hence Archer was not actuated by malice in his role in the preparation and publishing of the promos. However, at law the defendant is vicariously liable for the malice of Wenn and is to have that malice imputed to it: Horrocks v Lowe (above); Peterson v Advertiser Newspapers (1995) 64 SASR 186-187. The decision relied upon by the defendant’s counsel of Pinneger v John Fairfax & Sons Ltd (1979) 26 ALR 55 is distinguishable as there the malice was not that of any one employee of the publisher, but was sought to be derived from a combination of the acts and knowledge of several of its employees.
[46] The draft scripts for the actual story which were prepared on 16 August have been destroyed, but it is reasonable to infer that they contained everything which was in the promos.
Accordingly, I find the defendant was actuated by malice in publishing the promos and thus does not have any defence of duty and interest qualified privilege.
Extended qualified privilege
Again I need not seek to resolve the somewhat uncertain state of the law on the circumstances in which such privilege will arise. It was common ground that such a defence could only arise if the defendant’s conduct in publishing the relevant imputations was reasonable. For the reasons given for the finding of malice the defendant’s conduct was not reasonable. In addition it was not reasonable for Wenn to insist, as he did, that he would only show the hidden film to the plaintiffs, and only give them an opportunity to respond to his allegations arising from it, upon condition this was done in an interview which was filmed and recorded.[47] Hence no defence of extended qualified privilege has been made out.
[47] In this Wenn was acting in accordance with the instructions given to him by Graham Archer.
Damages
Both plaintiffs have succeeded in establishing their causes of action in defamation for the publication of “It’s a case of them turning a blind eye to it” and the imputations 8.1 and 8.2 (as varied), 8.3, 8.4, 8.6, 8.7, 8.8 and 8.9. As the defamatory material was broadcast on television it is deemed to be libel[48]. Similar findings apply to the 1^st plaintiff for the subsequent promos for the imputations which apply to them except that 8.5 is also proved. Andrew Conroy has only succeeded in respect of publication once in the in-show promo reinforced to a limited degree by the publications of the subsequent promos. As both plaintiffs were only identified by a relatively small part of the viewing audience of the in-show promo who had special knowledge[49] damages are to be assessed on the basis of such limited publication: Morgan v Odhams Press [1971] 2 All ER 1156 at 1164 and 1177.
[48] Section 206, Commonwealth Broadcasting Services Act 1992.
[49] See paragraph 98 above.
The first plaintiff was defamed in respect of its trade and business and thus damage to its reputation is to be presumed without proof of any particular damage: Selecta Homes Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd (2001) 79 SASR 451. The defendant did not ever publish any retraction or apology for the allegation of “It’s a case of them turning a blind eye to it”, even though it obtained information both before, and soon after, the publication about the sacking of a Rexco worker for marijuana smoking.
The damages to be awarded are to be confined to the imputations proved without regard to the publication of those substantial parts of the imputations which have been justified: Selecta Homes Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd (above) at 470-471. Although the defendant failed in its defence of justification of “It’s a case of them turning a blind eye to it” and the imputations arising from it, the findings which I have made in the course of resolving that issue can be used as a partial justification in mitigation of damages: Pamplin v Express Newspapers Ltd (No 2) [1988] 1 All ER 282; Martin v Benson [1927] 1 KB 771; Plato Films v Speidel [1961] AC 1090; Burnstein v Times Newspapers Ltd [2001] 1 WLR 579. As stated above I have found that both plaintiffs did turn a blind eye to the substantial practice of marijuana smoking in the change rooms for the relevant period up until about the end of July 2001. Thus this imputation was substantially, but not wholly, justified. Both plaintiffs were remiss in not having properly addressed the problem many months earlier and thus obviating a substantial risk in this period for both the safety of the workers and the consumers of the meat products. While there is some difference between how someone would be regarded for having turned a blind eye continually to having turned a blind eye for most of the relevant period, but having done something to address the problem in about the previous two weeks before publication, the award of damages for it should only be modest, although more than nominal.
The imputations insofar as they were based on “risks the safety of their mates”, “putting your health in danger” and “they know what goes on” were wholly justified. Thus for the purpose of assessing damages the partial justification is almost complete justification, but not quite. I assess the damages at $7,000 for each plaintiff including a small allowance for aggravated damages for Andrew Conroy arising from the defendant’s malice.
Each plaintiff is entitled to pre-judgment interest under Section 39 of the District Court Act 1991 on the whole award from 17 August 2001 to judgment at 4% per annum: Selecta Homes Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd (above) at 479. I fix a lump sum in lieu of interest for each plaintiff of $1,100.
There will be judgment for each plaintiff for $8,100. The injunction granted by Judge Muecke remains in force. I will hear the parties on what further orders are to be made including any discharge or variation of that injunction.

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

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