Raymond Johnston v Australian Broadcasting Commission [1993] ACTSC 31; (1993) 113 FLR 307 (7 April 1993)

SUPREME COURT OF THE ACT

RAYMOND JOHNSTON v AUSTRALIAN BROADCASTING COMMISSION
No. SC1525 of 1987
Number of pages - 37
Defamation
[1993] ACTSC 31; (1993) 113 FLR 307

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J(1)

CATCHWORDS

Defamation - Justification - Truth and public benefit - Onus of defendant to prove substantial truth on balance of probabilities.

Defamation - Publication - Identification - Not necessary to call a witness from each jurisdiction in which publication is alleged.

Defamation Act 1901 (ACT), s.6

Defamation Act 1974 (NSW), s.15

Wrongs Act 1958 (Vic)

Criminal Code 1899 (Qld), s.376

The Defamation Law of Queensland 1889, s.9

Criminal Code (WA), s.356

Criminal Code Act 1913 (WA), s.5

Wrongs Act 1936 (SA)

Defamation Act 1957 (Tas), s.15

Defamation Act 1938 (NT)

Australian Defamation Law and Practice - Tobin QC and Sexton

West Australian Newspapers Ltd v Bridge [1979] HCA 10; (1979) 141 CLR 535

Hook v John Fairfax and Sons Ltd (1982) 42 ATR 17

Bainton v John Fairfax and Sons Ltd (1991) Aust Torts Reports 69,363

Woodger v Federal Capital Press of Australia (1992) 107 ACTR 1

TWT Ltd v Moore (1991) A Def R 50,030

Sutherland v Stopes (1925) AC 47

Pickering v Mason (1850) 2 Legge 601

Floyd v Taylor (1861) 2 Legge 1402

MacKay v Bacon [1910] HCA 71; (1910) 11 CLR 530

Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4

Howden v Truth and Sportsman Ltd [1937] HCA 74; (1937) 58 CLR 416

Cohen v Mirror Newspapers Ltd (1971) 1 NSWLR 623

Allsopp v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238

London Artists Ltd v Littler (1969) QB 375

Digby v Financial News Ltd (1907) 1 KB 502

Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86

Cross v Denley (1952) 52 SR (NSW) 112

Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30

Smith v John Fairfax and Sons Ltd (1987) 81 ACTR 1

HEARING

CANBERRA, 1-4 February 1993
7:4:1993

Counsel for the Plaintiff: Mr S Walmsley

Instructing solicitors: Messrs Gary Robb and Associates

Counsel for the Defendant: Mr M Sexton

Instructing solicitors: Messrs Colquhoun Murphy

ORDER

THE COURT ORDERS THAT:
1. There be judgment for the plaintiff in the sum of $17,500.00.

DECISION

HIGGINS J In 1987 the plaintiff was a worker employed on the site of New Parliament House. On 17 July 1987 the plaintiff was lunching at "Inn '88", a cafe or canteen situated on Capital Hill between State Circle and Capital Circle, near St Andrews Presbyterian Church. He was seated with some fellow workers at a picnic-style table near Inn '88. The table was one at which customers of Inn '88 could sit to have food and drink. The permitted lunch break was between 11.50 am and 12.30 pm. That was intended to allow 10 minutes for "wash-up", that is, preparation - cleaning up for having lunch, and 30 minutes for consuming lunch and relaxation.

2. The plaintiff and his fellow workers were approached by Mr Ross Bill, a television journalist working for the Australian Broadcasting Commission ("ABC"). Mr Bill was accompanied by a cameraman with a TV camera and a sound recordist. He obtained agreement from the men to film them and to gain their answers to questions about the conditions of employment on "the Hill" as it was commonly called (meaning the New Parliament House construction site).

3. Filming proceeded. The plaintiff and his fellow workers were greatly excited by the experience. They looked forward to seeing themselves on television. In that respect they were not disappointed. On 27 July 1987 a segment of the public affairs program "7.30 Report" was devoted to the New Parliament House construction site. There was reference in general terms to waste and "rorts".

4. One theme of the program was cheating on employers and stealing of equipment and materials by workers.

5. One scene depicted the reporter, Mr Bill, together with a young woman, identified as Ms Anne Gilles, entering the New Parliament House site. As the pair are shown, in hard hats and protective jackets, similar to other persons on site, walking up an unsealed road within the site, Mr Bill's voice says,

"There is a heavy security presence on the main gates. However,
as if by arrangement, there is one back gate that is never
guarded. We have no authorisation to be on the site. We are not
stopped or questioned. It would be easy to nick off from the job
or steal tools and materials. It is 11.15, 35 minutes before
wash-up for lunch. We do not see anyone working. They all seem
to have just disappeared. Contractors have told the 7.30 Report
that the unions have so much muscle that it's hard to get more
than 35 percent of available hours worked. We leave by the same
way we came, down the stairs and out the back gate. Again, we
are not checked. Here's the answer to the mystery of the missing
4orkers, an early lunch."

6. The scene then shifts to a group of workers at the picnic table mentioned. The plaintiff is in the left foreground of that group as the shot moves closer.

7. A conversation between Mr Bill and the workers then follows. The first recorded intervention by Mr Bill was a "voice-over", the other questions by him are, apparently, "live".

"Construction worker (Randall) - From the very beginning it has
been a real good job.
Plaintiff: Ha haa.
Ross Bill: But the 2 hours of unworked overtime a day paid to
crane drivers, dogmen and forklift drivers rankles those who do
not have this luxury.
Construction worker (Plaintiff): ...I climb up and down that
hill all day long, and when it rains how many times do we walk up
and down that hill, six or 8 times ...
Construction worker: We've only got one tower crane and that's
the big one.
Construction worker (Plaintiff): When it stops (starts) raining
we walk to the shed, when it stops raining we walk back up the
hill, when it starts raining we walk back down the hill. Back up
and down. We can walk up and down that hill 8 times. That's
more times than a crane driver. How come I'm not getting
climbing time?
Ross Bill: What do you expect when this job finishes?
Construction worker: The boss either to offer us a job somewhere
else or, if not, look after us until we get a job.
Ross Bill: What do you mean by that?
Construction worker: Get a redundancy scheme going where we get
$300 a week odd to keep us going, to keep us off the dole.
Ross Bill: Do you think the union will support you in that
claim?
Construction worker: Oh, they're trying to get severance pay in
at the moment, $20 a week, which they're going to put into a bank
account.
Ross Bill: And how are you going to force the issue on that, I
mean, what muscle do you have?
Construction worker: Oh, the only muscle we've got is strike
action, isn't it? That's it.
Ross Bill: Oh, you wouldn't do that.
Construction worker: Black bans.
Ross Bill: You wouldn't do that, though, would you?
Construction worker: Oh, black bans, black ban it, yeah.
Construction worker (Utting): You can have black bans on, why not?"

8. Even without the "early lunch" reference the portrayal would have suggested that the workers were being benefitted unreasonably by union "muscle". However, the introduction, against the visual background of the apparently deserted Parliament House construction site, clearly conveys the message that the depicted workers have simply "nicked off" for an early lunch, some 35 minutes before the official "wash-up" for lunch.

9. The pleaded imputations, as amended, were:-

"(a) The plaintiff dishonestly took time off from his work;
(b) The plaintiff defrauded and/or cheated his employer;
(d) (sic) The plaintiff left his workplace before he should
have."

10. I do not think those imputations are materially different. However, they each accurately convey the sting of the TV program as regards the plaintiff. He is portrayed, along with his fellow workers, as engaging in a rort, taking a break for lunch when not entitled. He is portrayed as unashamed of this, careless of the rights of his employer to the benefit of his labour. He is getting more than a fair day's pay and giving less than a fair day's work.

11. Such a slur on a worker, if undeserved, would be capable of seriously and wrongfully damaging his or her reputation both with prospective employers and fellow workers.

12. The plaintiff perceived all that immediately. He was mortified. He rang the ABC. He was referred from the Canberra office to the Sydney office. He asked to speak to someone responsible for the program. He complained to that person that he had been falsely portrayed. He demanded an apology and retraction. The response was curt and unhelpful. It was suggested to the plaintiff that he see his solicitor.

13. The plaintiff's sense of shock and shame had been heightened by the fact, which seems uncontroverted, that he had boasted to family and friends of his impending appearance on national television. When he became aware that the segment in question would be shown on 27 July he had made sure that his wife and children were present to see it.

14. The next day, the plaintiff got adverse reaction from various quarters. Some was his own fault. He had spoken disparagingly of the "climbing time" paid to crane operators. That had supported one of Mr Bill's criticisms of waste and extravagance. He was, he said, "iced out" by the crane crews. He was also made the butt of jokes about early lunches.

15. He was fortunate, however, in that his employer, for whatever reason, gave no credence to the early lunch allegation. The program was mentioned to him by the employer but in terms which accepted that the plaintiff had not been guilty of taking an early lunch. The plaintiff was, as a result, not caused anxiety and concern as to his immediate employment as a result of the published allegations.

16. Nevertheless, he was held up to ridicule. He was potentially disadvantaged with future employers and current and future work mates. As a person with only his labour to sell, his most precious asset was, undoubtedly, his good name as a conscientious worker. The program struck at that asset.

17. The defendant did not dispute the proposition that the program defamed the plaintiff in the manner I have referred to. Its defence was that the facts stated by the matter complained of were true or, at least, substantially true and that the defamatory imputations conveyed were, in consequence, also true.

18. Of course, truth alone is no defence in this Territory. In summary, the various defences of truth in the places in which publication is alleged were:-

(i) ACT - Truth of the "matters charged" and "public benefit"
(s.6, Defamation Act 1901);
(ii) NSW - Truth of the imputation (substantial truth) and
"relates to a matter of public interest" (s.15,
Defamation Act 1974);
(iii) Victoria - The common law defence of truth alone (not
modified by the Wrongs Act 1958);
(iv) Queensland - Truth of "the matter" and "for the public
benefit" that the publication be made (s.376 Criminal
Code (of 1899) and s.9, The Defamation Law of Queensland
(of 1889);
(v) Western Australia - same as for Queensland (s.356,
Criminal Code; s.5, Criminal Code Act 1913); but by
reason of West Australian Newspapers Ltd v Bridge [1979] HCA 10; (1979)
141 CLR 535 quaere, truth alone also;
(vi) South Australia - The common law defence of truth alone
(not modified by the Wrongs Act 1936);
(vii) Tasmania - Truth of "the matter" and public benefit that
the publication be made (s.15, Defamation Act 1957;
(viii) Northern Territory - the common law defence of truth
alone (not modified by the Defamation Act 1938).

19. So far as this Territory is concerned, the defendant's plea of truth was open to the objection that it did not comply with s.6(2) Defamation Act 1901. The particular facts by reason whereof the publication was for the public benefit were not alleged in the amended defence as required by the Defamation Act 1906, s.6. No such objection was taken. Such particularisation may now be gleaned from the evidence and the submissions of counsel. The plaintiff asserts no prejudice. Accordingly, I will treat the plea in question as if it had been properly particularised.

20. Qualified privilege has been pleaded in respect of publication in each of the States and Territories in which the telecast was allegedly shown. The particular qualified privilege in question was not pleaded. Nor have any particulars been given of it or any submissions directed to supporting it.

21. In any event, given there is no general privilege to the print or electronic media to publish false and defamatory utterances even if done in good faith (see Hook v John Fairfax and Sons Ltd (1982) 42 ATR 17; Bainton v John Fairfax and Sons Ltd (1991) Aust Torts Reports 69,363).

22. The defendant nailed its colours firmly to the mast of truth.

What is truth? (John 18:38)
23. Pilate received no answer to this question. In the context of the law of defamation, truth is relevant only in respect of those facts which cause a defamatory imputation to arise. It also requires proof of the truth of any such imputation. (See Woodger v Federal Capital Press of Australia (1992) 107 ACTR 1, 23-24 per Miles CJ). There is also the defence that by reason of proof of the truth of so-called "contextual imputations" the plaintiff's reputation has not suffered by reason of the publication of defamatory matter or imputations not justified by the defence of truth or otherwise (see TWT Ltd v Moore (1991) A Def R 50,030).

24. Fortunately, no such complexities intrude into the question I have to decide. The issue in this case is whether the plaintiff (and his fellow workers filmed with him) were having a substantially extended lunch break or not. If they were, the defendant has proved the facts stated, defamatory of the plaintiff, to be true. The defamatory imputation ineluctably follows from those facts. In this case the answer to Pilate's question depends on whether the plaintiff really did have a long lunch or not. Exact truth is not required. Truth "in substance" suffices (see Sutherland v Stopes (1925) AC 47).

25. I must also observe that whilst the legal process endeavours to discover the truth, it does not necessarily find it. Pilate was clearly not surprised that his question attracted no definitive answer.

26. In this case, the truth, or that factual assumption upon which the defence of truth succeeds or fails, has to have been either that asserted by the plaintiff and his witnesses or that asserted by Mr Bill and Ms Gilles. For the defendant to succeed, however, it must persuade me, on the balance of probabilities, that the truth is, at least substantially, as asserted by its witnesses. If I am not so satisfied, the plea of truth fails. I would not be so satisfied if I was persuaded that the plaintiff and his witnesses had given a substantially correct account of what happened. Even if I was unable to prefer one account to the other, the plea of truth would still fail. The latter conclusion, if adopted, could have some interesting consequences, in some situations, as to, for example, malice and damages.

When is there "Public benefit"?
27. This is one of those concepts of indefinite reference requiring a value judgment to be made as to whether allegations, even if true, should have been placed before the relevant public. It is the closest the law of defamation comes, as presently framed, to protection of privacy, at least in those jurisdictions which so limit the defence of truth. I note that Tobin QC and Sexton "Australian Defamation Law and Practice" (to December 1992) (11,130) suggest that truth alone remains a defence in Western Australia notwithstanding s.356 of the Criminal Code. I have to say that that result is not, in my view, mandated by West Australian Newspapers Ltd v Bridge (supra). It is not, however, necessary to decide whether the learned authors are correct in their conclusion.

28. It has been held to be capable of being for the public benefit to expose the publication of false news (see Pickering v Mason (1850) 2 Legge 601); to advertise for an absconding debtor (Floyd v Taylor (1861) 2 Legge 1402); to expose the reception of diseased carcasses at an abattoir (MacKay v Bacon [1910] HCA 71; (1910) 11 CLR 530).

29. It is, ultimately, a question of fact.

30. The purpose of the limitation on the defence of justification by reference to "public benefit" was explained by Street ACJ in Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4. To be for "the public benefit", the disclosure must be seen as relevant to promoting the public good rather than simply pandering to a desire for scandal or invading the legitimate privacy of an individual (see, for example, Howden v Truth and Sportsman Ltd [1937] HCA 74; (1937) 58 CLR 416; Cohen v Mirror Newspapers Ltd (1971) 1 NSWLR 623).

31. Whether or not a worker is early for lunch or late back from lunch would normally be a matter of legitimate interest only to his or her employer or superior. However, in this case, the allegation in question was part of a series of allegations tending to expose waste and extravagance in relation to a high profile public project. If, as alleged, workers were being habitually allowed to disregard their obligation to give a fair day's work according to award conditions, then that was a matter the exposure of which was, I believe, for the public benefit.

32. Mr Walmsley, for the plaintiff, did not really suggest otherwise. If the matter complained of is true, I am satisfied that its publication was for the public benefit.

Public Interest
33. In New South Wales, the qualifying concept is "public interest". It is relevant to raise a question as to whether that differs from "public benefit".

34. Even accepting the narrower view of public interest adopted by Blackburn J in Allsopp v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238, I consider that these allegations concerning waste and extravagance were such as could be published in the public interest. The allegations of and concerning the plaintiff thus related to a matter of public interest.

35. That is not to say that a wide view of what is "in the public interest" is to be rejected (see, for example, London Artists Ltd v Littler (1969) QB 375 per Denning MR, 391).

36. It follows that, in the circumstances of this case, the plea of truth, in each of the Australian jurisdictions, will succeed if, and only if, the allegations concerning the plaintiff are based on factual truth.

Was there an early Lunch?
37. The plaintiff denied that he went for an early lunch. He asserted that he knocked off for lunch "no earlier than 10 minutes to 12". Ten minutes was allowed for wash-up and walking time. The workers were expected to be back on site at 12.30pm. He said that he reached the canteen, Inn 88, at noon, "give or take one minute". He walked down with one, possibly two, fellow workers. Inn 88 was situated outside the work site security fence. He met a number of other workers there as well.

38. Mr Randall and Mr Douglas, who were also employed on "the Hill" arrived later. The plaintiff believed that they had to complete a job, and so, were late. It was 12.12pm or 12.13pm, he said, when the TV cameras arrived. He could be precise, he said, because he had to leave at 23 minutes past 12 to be on site on time. He had looked at his watch when they were asked for an interview to see if he had enough time to participate in it.

39. It was his recollection, he said, that he got up from the table to leave at 23 minutes past 12 precisely. He said his work site was about 500 metres away.

40. That estimate of distance seems borne out by the aerial photograph, exhibit 2.

41. The table, he said was 150-200 metres from the security gate through which he had passed.

42. Mr Bruce Douglas was, on 17 July 1987, employed as a survey draftsman by Concrete Holland Joint Venture. He had seen a TV camera crew, which would seem to have been that accompanying Mr Bill, the defendant's reporter. He had made that observation as he drove to the Australian National University accompanied by Mr Wayne Randall. He stated that the time then was 5 or 10 to 12.00. He dropped Mr Randall off at Inn 88, on his return, at a time between 12.10pm and 12.12pm. He then parked his vehicle and proceeded to the restaurant. He sat down with Mr Roger Wynn, Mr Bob Utting, the plaintiff and some others. There were two tables being occupied. It was 12 to 15 minutes past 12.00, he said, when Mr Bill approached. Mr Douglas and Mr Wynn, being on the management team, withdrew to avoid being filmed or interviewed. They had previously been notified by senior management that they were not to give media interviews. They moved away so as to avoid any suggestion that they had disobeyed that instruction. They did, however, observe the proceedings.

43. The filming proceeded for five to ten minutes. Then someone said that time was up. As to the time filming took place, Mr Douglas said it was, "probably 20 pastish, somewhere around there, to half past when we said we had to go back".

44. He asserted that as he had passed Inn 88 on his way to the ANU he had noticed that the tables near Inn 88 to which he later returned were then vacant. That would indicate that, at that time, the plaintiff had not arrived to have lunch.

45. Having been referred to a statutory declaration, Mr Douglas agreed that, on his return from the City area, he had seen the ABC film crew packing up their equipment at 12.12/12.13 pm near a dirt bank "adjacent to the bridge over Brisbane Avenue site entry road". That site, from the aerial photograph, would be near the car park adjacent to Inn 88, that is, a little beyond the car park in which Mr Douglas presumably stopped.

46. He readily agreed that, as a result of the ABC program, declarations had been sought from witnesses, including himself, to verify the time at which the persons filmed had attended at Inn 88 for lunch.

47. Mr Christopher Bale gave evidence. He was the manager of Inn 88 at the time of the recording of the interview. He gave evidence that he could recall the filming. As to the time he saw it he said, "It would have to be about - after 12 o'clock because I was behind the till because at that stage of the day it was too busy for me to be out watching".

48. Mr Bale could not fix the time at which the TV crew arrived. It was, however, his view that it was not before noon because customers were not usually present in numbers before noon. Being less busy, he felt he would have noticed them had they arrived that early. Clearly, the sight of a TV crew filming and interviewing his customers would have been unlikely to have gone unnoticed by Mr Bale for more than a few minutes.

49. Mr Wayne Randall was, at the date of the filming, a field hand with Concrete Holland Joint Venture. He confirmed that he had gone with Mr Douglas to the Civic area before taking lunch. His evidence was that he left work "about 7 minutes to 12". He was sure his boss would not have let him go earlier than 10 to 12.

50. The visit to Civic was brief and they returned to Inn 88. The time at which he was dropped off, Mr Randall fixed as "approximately 12.12 pm". He was seated by 12.13pm and fixed the approach of the film crew at 12.15 pm. They started filming almost straight away finishing with the workers leaving the area at "12.25/12.27 pm" placing rubbish in the bin as they left. That scene is depicted in the videotape of the program.

51. Mr Randall had also made a statutory declaration. It is clear that the "12.12" time was mentioned in that declaration. He also agreed that the declarations were required to meet the allegation that an unauthorised lunch break had been taken.

52. The senior surveyor, Mr Richard Tauschek, also gave evidence. He had Messrs Douglas, Randall and Utting working under his control. His recollection was that they went off at the regular time for lunch. They returned at 12.35 pm, excited at having participated in or witnessed the ABC filming an interview. He believed, he said in cross-examination, that his three subordinates would only have gone to Inn 88 about once per month. He did not recall Mr Douglas and Mr Randall going off "a bit early". He "made a report" on the matter at Mr Utting's request after the matter complained of was published. That report was a statutory declaration.

53. Mr Robin Utting was the final witness called by the plaintiff. He said that he went to Inn 88, about three times per week. His recollection was, he said, that he left his work site at about 5 to 12 and arrived at Inn 88 "probably no later than 5 past 12". He denied he had ever been back late from lunch or left early for lunch. He was, he said, the first of the group to arrive. The plaintiff arrived a couple of minutes later. The filming started about 12.15pm. That had been the time that Mr Utting had written down in the statutory declaration he had made after the presentation of the program. The filming finished "probably about 25 minutes past 12 because, you know, we had to get back to work, be on the site probably at 12.30 - as long as we were in the gate at 12.30 that was it".

54. The statutory declaration Mr Utting wrote out claimed that he was "back on site at 12.35pm to start work".

55. None of these witnesses was shaken or discredited as a result of cross-examination. There was nothing in what was said by any of them that was inherently incredible or even improbable.

56. There were some contradictions. Mr Tauschek could not recall Mr Douglas and Mr Randall going to Civic or ANU. He did not know that they went to Inn 88 quite frequently for lunch. However, as Mr Douglas and Mr Randall did not leave early for lunch and Mr Tauschek never accompanied them or, it seems, took interest in where they went, those differences are not significant.

57. There was no real conflict about the times of arrival of the various workers or the account they gave of the arrival of the TV camera crew. There was some conflict as to the time of leaving. The plaintiff insisted that it was 12.23 pm. The other witnesses gave later times. No-one gave any time later than slightly after 12.30 pm.

58. However, there was no real issue as to the time of the return of the various workers from lunch. The allegation published was that the workers had knocked off early for lunch. The matter complained of suggested that it was by 11.15 am but, of course, it would equally convey the imputations pleaded if there was or had been a substantial advance on the authorised 11.50 am knock-off time.

59. The evidence, however, was not left there.

60. Mr Ross Bill was the presenter of the matter complained of. He was a professional journalist employed by the defendant. He had decided to do a program investigating and exposing waste and extravagance on the New Parliament House project. It had been inspired by a report from a Liberal Party "Waste Watch" committee and critical comments in an Auditor-General's report. He had, before filming, also spoken with some sub-contractors employed on "the Hill".

61. On the day of filming, 17 July 1987, Mr Bill deposed that he went to the office of Senator Parer at the old Parliament House. Senator Parer was, it seems, Chairman of the "Waste Watch" Committee. Mr Bill arrived, he said, with his film crew, a sound man and a camera man about 8.30 am. They did some filming, recording an interview with Senator Parer and his research officer, Ms Anne Gilles.

62. He left for "the Hill" at about 10.00 am. The ABC vehicle was parked in one of the carparks off the site. It is not entirely clear whether it was the carpark north of the main administration buildings for the Parliament House Construction Authority ("PHCA") or to the south of them. The latter is closer to Inn 88. It seems more likely to have been the latter. During the on-site walk taken by Mr Bill and Ms Gilles, the camera appeared to have been located in two positions. The first was under the underpass leading to the road up to the eastern side of the site which was a continuation of Brisbane Avenue. The second was on a grassy knoll to the south of the underpass. That latter position would have placed the camera crew between Inn 88 and "the Hill". The crew had, apparently, accompanied Mr Bill and Ms Gilles to a set of steps beyond the underpass. They filmed them donning protective coats and hats. That clothing was intended to give the impression to casual observers that Mr Bill and Ms Gilles were authorised entrants onto the site.

63. They were filmed ascending the stairs which lead to an unsealed road going past a partly constructed loading dock. They entered a gate at the top of the stairs and proceeded along that road for a distance Mr Bill estimated at 100-200 metres. The road proceeded in a roughly southerly direction.

64. The crew filmed Mr Bill and Ms Gilles from the second position. They are shown moving across the site. After walking the distance mentioned, they turned and walked back to the stairs. They were filmed walking back and then filmed descending the stairs. It is obvious that the camera crew had to shift location before and after the "walk" on site to film the areas of the stairs.

65. As they walked "across" the site to the south, Mr Bill said he could see no workers working in the area of the loading dock. He noted the time then to be 11.15am. He said so to Ms Gilles hoping it would, also, record through his radio microphone.

66. He deposed that he then looked left towards Inn 88. His angle of observation was, he said, about 45 degrees-60 degrees. There was a group of persons dressed like workers seated at a picnic-style table near Inn 88. The table was situated on a level below that at which he and Ms Gillies were walking and "about 100 metres" away. There were 6-8 workers so seated. He particularly remembered a person wearing a black beanie.

67. The plaintiff, when filmed, was wearing a black beanie. Mr Bill said that he and Ms Gilles commented to each other on this discovery of persons, apparently workers, then at Inn 88.

68. Mr Bill said it was 11.30am approximately when they descended the steps, having passed through the gate leading off the site.

69. The crew, Mr Bill and Miss Gilles then returned to the ABC vehicle. The film format was changed. The radio microphones and construction clothing were put in the vehicle.

70. Mr Bill and his crew then approached the picnic table area, where the workers were seated, leaving Ms Gilles at the car. The tables were only 30 or 40 metres away from the ABC vehicle. That estimate supports a conclusion that it was located in the carpark to the south of the PHCA offices rather than the one to the north.

71. As he approached the tables, Mr Bill said that he particularly noticed the plaintiff was still where he had earlier seen him. It was 11.45am (approximately) when he approached. The sequence then was, he said, that he spent 5-10 minutes "having a chat". The film crew were getting what he called "establishing shots". Those background shots having been taken, Mr Bill commenced the interview. He said that he started it "just before 12 or 12, something like that".

72. Not all the questions and answers filmed were subsequently used on the program. He said that it took 15-20 minutes to complete the interview up to the final shots which showed the men returning to the site. They departed in the direction of the underpass from which he and Ms Gilles had come.

73. The conclusion of the interview, Mr Bill said, "would be 20 past 12, something like that. 20 past getting on for half past. I mean that range of time".

74. In cross-examination, Mr Bill was criticised for not revealing in the course of the program that the 11.15am time referred to in his voice-over did not fix the time at which he observed the workers at lunch. He was also criticised for not disclosing in the course of the program that Ms Gilles had been employed by Senator Parer at the time and not, as might have been thought otherwise, an independent researcher.

75. It is true that the matter televised conveyed the impression that Ms Gilles was independent of Senator Parer. However, it is also inescapable, if Mr Bill's account is accepted, that the plaintiff and his fellow workers were at lunch, at least very shortly after 11.15am. The matter televised does not, in that respect vary in substance from Mr Bill's evidence.

76. Mr Bill had been asked, shortly after the program was shown, to make a statement to ABC management concerning the time at which he had seen the workers having lunch. That was, no doubt, due to a challenge to the accuracy of his account, whether resulting from a protest by the plaintiff being recorded or otherwise. In that statement, the time at which the workers were seen was noted as 11.25am, not 11.15am. That statement also asserted that the workers were still there at 11.50am which was then said to be the time at which the interview was recorded. The latter estimates of time, he agreed, could well be more accurate than the ones he had given in evidence in chief.

77. His prior statement also asserted that the workers had left Inn 88 "a little after 12.30". He agreed that time, also, would be more accurate, although different from his current recollection.

78. The crew, Ms Gilles and Mr Bill then returned to the old Parliament House. They had lunch there, Mr Bill said, together with Senator Parer.

79. There was a further document put to Mr Bill. It was a draft "voice over" script. That draft referred to the walk on site, where no workers had been seen, in the following terms, "It's 11.35" and then "... an early lunch". It was put to Mr Bill that 11.35 am could have been the time shortly after which he saw the workers at Inn 88, rather than 11.15 am as he had deposed. He agreed with that proposition.

80. If that later time was correct, of course, then instead of 11.50 am as the time he approached the workers and 11.55am to noon as the time he commenced filming, it becomes a reasonable hypothesis that Mr Bill approached the workers at about 12.10pm and began filming shortly thereafter as they deposed.

81. On one time, all, save the plaintiff, are in general agreement. The workers departed Inn 88 shortly before or shortly after 12.30 pm.

82. Of course, whether Mr Bill spotted the plaintiff at lunch at or shortly after 11.35 am or 11.15 am, the imputation that he was imposing on his employer would still be justified, even if the degree of imposition was less than was conveyed by the program.

83. Later in his evidence, Mr Bill was inclined to favour 11.25 am as the time at which, or shortly after which, the workers were spotted at lunch. This was because he considered that the interview would have taken longer than 10 minutes.

84. If Mr Bill had commenced filming at 12.20 pm he had to have stopped filming very close to 12.30 pm. On that hypothesis the interview could not have taken longer than 10 minutes.

85. Mr Bill was shown a document, apparently prepared by Ms Gilles, which suggested that the time at which they had seen the workers "sitting down and eating their lunch" was 11.40 am. Mr Bill explained that as being the time at which he approached the picnic table, rather than the time at which the workers were sighted by himself and Ms Gilles from inside the construction site.

86. Of course, if the time suggested by Ms Gilles in the document referred to was accurate, it would have further delayed the time at which the interview commenced, assuming Mr Bill's account of the time taken to get from the construction site to the interview site at Inn 88, is accurate.

87. From the sketch plans and the aerial photograph, I am satisfied that had Mr Bill looked from the road on which he was walking on site, he would have had an unimpeded view of the picnic table in question from a distance of approximately 200 metres.

88. It is also relevant to note that a memorandum to Mr Hill, Managing Director of the ABC, stated that Mr Bill had observed the early lunch "while he was on the Parliament House site - at 11.25 am ... they were still there at 11.50 when Bill and his crew approached ... the workers left ... a little after 12.30".

89. Nowhere in his letter (exhibit 8) does Mr Hill address the obvious discrepancy between the reporter's statement, on air, "... it is 11.15 ..." and his report to Mr Hill in which he had stated that "11.25 am" had been the time at which he had spotted the workers at lunch.

90. Of course, the difference between the two statements is not great. It makes little or no difference to the imputation conveyed. It would, however, have been comforting if the ABC had been prepared to demonstrate that its standards of accuracy were high enough to concede even so small an error.

91. Of the three other witnesses capable of verifying the time referred to in the program, only Ms Anne Gilles was called by the defendant. Her evidence was that Mr Bill had arrived at 10.00 am at old Parliament House.

92. That time is, of course, 1 1/2 hours at variance with the time deposed to by Mr Bill.

93. Ms Gilles says that she left Parliament House with Mr Bill and his crew at 10.30 am. That time is consistent with Mr Bill's evidence. However, if her evidence is correct it would mean that the interviews with herself and Senator Parer, apparently longer than those with the workers, took less than half an hour to complete.

94. The party proceeded to the New Parliament House site, parked, unloaded equipment and proceeded to the "back gate". It took 20 minutes for the crew to find a vantage point and set up there. Mr Bill then took some time giving the crew instructions as to where he would walk on site so that he might be filmed doing so.

95. As they entered the site having climbed the stairs, Ms Gilles said that she and Mr Bill compared the time as shown by their watches. The time shown was, she said, 11.15am. They then walked "80 metres" up the unsealed road that led from the gate at the top of the stairs.

96. Ms Gilles' account of seeing the workers at the tables at Inn 88 varies, to some extent, from that of Mr Bill. She said,

"When we reached the point about 80 metres from the gate, we
decided to return to the gate and as I turned around, at that
point, I noticed on the grassy knoll off the site, not far from
where we parked the car, six workers sitting at a picnic table,
off the knoll."

97. The level at which the workers were seated, she said was the same or slightly above hers. Later, she corrected that. Her position, she said, was definitely above theirs. She looked at her watch at the time she first observed the workers at lunch. That time was, she said, 11.30 am. They left the site shortly after 11.30 am. The trip back being down hill was faster than the trip up. She estimated that they arrived back at the car at 11.35 am.

98. If that timing is accurate, it would be surprising if it took 15 minutes to walk 80 metres, even if up an inclining ramp, but only 5 minutes to return, descend the stairs shown in the film and then walk 50 metres to the car. Ms Gilles was certainly emphatic that she was afraid of being challenged as a trespasser on site. I do not believe either she or Mr Bill lingered or dawdled on their walk on site.

99. The workers, she said, were seated about 20 metres from where the ABC vehicle was parked. Mr Bill and his crew approached them at "probably about 11.45 am". They then "began the interview". She stayed at the car during the filming.

100. It was her estimate that the crew finished filming at "about 12.30pm". She estimated that the interview took about 3/4 hour. They then returned to old Parliament House arriving "about 12.35 pm".

101. Mr Bill asked to do a further interview with Senator Parer. However, she could not then locate him. By the time Senator Parer was located he had no time, she said, to do a further interview. The ABC team then left, she considered "about 2.30 pm".

102. That evidence, of course, is at variance with that of Mr Bill.

103. I do accept that Ms Gilles tended to underestimate distances. Mr Bill's estimates seem more accurate. However, even so, she was no more than 150-200 metres from the table in question at the point where she claims to have observed the workers at the picnic table. That is a distance at which it is possible to make a reasonable observation of the sort of features she claims to have observed.

104. It was put to Ms Gilles that the first time she saw the workers at lunch was, according to a previous statement of hers, 11.40 am. She conceded that her facsimile message to Mr Bill had said so but denied its accuracy. She contended that the time, so long as it was substantially before 11.50 am was quite unimportant to her at the time. I assume that she was asserting that the time stated in the facsimile message was erroneous.

105. I find it difficult to accept her reason for asserting that. Her employer, quite legitimately, was seeking to expose "rorts" on the construction site of the New Parliament House and gain political advantage from so doing. One allegation was that employees were not giving employers full value. They were taking extended lunch hours. It was clearly in Senator Parer's interests, and that of Ms Gilles, to have the program suggest that the early lunch was taken as early as the facts would support. It is not likely that Ms Gilles would have suggested that the workers were seen at lunch at 11.40 am if the facts were that she and Mr Bill had seen them as early as 11.15 am. Nor is it likely that, if either Mr Bill or Ms Gilles had seen workers at lunch as early as 11.15am, or any other time substantially before 11.50 am, that he or she would constrain themselves to conceal that knowledge from the other.

106. It was her evidence that the interview went for a long time.

107. The plaintiff protested about the report on the night it was shown. That evidence went unchallenged. The defendant's internal memoranda corroborate the fact that, shortly after the event, it was aware that the account given by Mr Bill of the "early lunch" was under challenge.

108. In those circumstances, it is surprising that the original videotape (the interview was recorded on videotape whereas "site walk" was, according to Mr Bill, recorded on film) was not retained and produced. If the tape running time of the interview had exceeded 15 minutes before editing, the suggestion that total interview time was 30-45 minutes would gain support. If the workers' account of the interview was right, the interview could not have exceeded 5-10 minutes on camera. No tape was produced.

109. For what it is worth, the defendant did not call either the camera man or the sound man. No explanation was given for this.

110. Some workers who had been present were not called either. Lack of current knowledge of whereabouts was suggested as a problem there. It is fair also, to note that, independently of any desire to support the plaintiff out of "mateship", many of his witnesses had a desire to avoid the suggestion that they took, or condoned, early lunches.

111. I am also satisfied that the plaintiff's precision, as to the time at which the camera crew arrived at Inn 88 and the time at which he left to go back on site, cannot be supported.

112. All witnesses, other than the plaintiff, agree that the time of conclusion of the interview was at or shortly after 12.30 pm.

113. Nothing in the demeanor of any witness persuades me that the witness was being deliberately deceptive. Mistakes are easily made as to times and distances.

114. Nevertheless, I do not believe that the workers could have gathered for lunch at 11.40am or earlier but mistakenly believed they gathered at noon or later.

115. Mr Bill and Ms Gilles could not have believed the interview commenced between 11.45 am and noon, if it started at or shortly before 12.15 pm. Nor could Mr Bill and Miss Gilles have believed they saw the workers at lunch between 11.15 am and 11.40 am if the workers had not gathered together until noon or later.

116. One side or the other is attempting to deceive the court. I cannot say positively which it is. The motive for those supporting the plaintiff, save for Mr Bale and Mr Tauschek, to do so irrespective of the truth, cannot be ignored.

117. On the other hand, I am greatly troubled by the discrepancies between the accounts given by Mr Bill and Ms Gilles. There are, also, some inherent improbabilities in the period of time they suggest they were on site. They had motives, one professional, the other political, to distort or exaggerate the facts to fit the theme of the program.

118. In the result, I have to say that I am not satisfied that any of the plaintiff or his fellow workers assembled for lunch before noon. I am not satisfied that Mr Bill and Ms Gilles saw them so assembled before noon or that Mr Bill started his interview with the workers before 12.15 pm.

119. I am satisfied that the workers left Inn 88 to return to work at 12.30 pm, give or take a minute or so.

120. It follows that, as the defendant bears the onus of proof of justification, (see Digby v Financial News Ltd (1907) 1 KB 502; Sutherland v Stopes (supra), it has failed to establish the factual foundation for that defence of justification, the defence must fail.

121. There being no defence made out, the plaintiff is entitled to a verdict in his favour.

122. An issue was raised, in this context, as to identification. The plaintiff was not named, although he was televised close-up.

Identification
123. Where a plaintiff is named in the matter complained of, it is otiose to call evidence that the reference to that person is a reference to the plaintiff (see Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, 90-1 per Jordan CJ; see also Cross v Denley (1952) 52 SR (NSW) 112).

124. The plaintiff was not named in the matter complained of. However, he was shown in close-up. His voice was broadcast. He was recognised by persons in New South Wales and the Australian Capital Territory.

125. I am satisfied, on the balance of probabilities, although no evidence came from such a person, that there was at least one person in Victoria who would have viewed the plaintiff and recognised him. I am also satisfied that there were persons in Queensland, South Australia, the Northern Territory and Western Australia who, had they seen the program, would probably have recognised the plaintiff. There is no evidence that any such persons actually saw the program.

126. In Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, television footage was shown on a program known as 'Willissee at Seven'. It depicted Barbaro, but wrongly referred to him by the name of a person adversely mentioned in the Woodward Royal Commission.

127. Hunt J noted,

(35) "As the plaintiff was not identified in the matter
complained of by his own name (Dominic Barbaro), he was obliged
to establish that persons saw the television programme who were
able to identify him s the person shown, ... I rejected the
plaintiff's submission that the publication of his picture on
television without being named is the same as the publication of
his name in a newspaper ... "

128. His Honour also rejected a submission that it was,

(36) "... an inflexible rule that at least one witness must be
called to prove publication where the plaintiff is not named in
the matter complained of ..."

129. It seems to me, therefore, that for publication in the States of Queensland, South Australia and Western Australia and the Northern Territory, it is not necessary (any more than for Victoria) to call a witness who actually saw the program there and recognised the plaintiff.

130. I think it is probable that at least one person in each of the above States and the Northern Territory viewed the program and recognised the plaintiff.

131. I do not consider, however, that I can be satisfied that any person then in Tasmania would have recognised the plaintiff had they viewed the program.

132. The area and extent of publication is relevant to damages. Rather than proceed on the basis of apportioning damage between the various states and Territories, I will respectfully adopt the approach of Miles CJ in Smith v John Fairfax and Sons Ltd (1987) 81 ACTR 1, 35-6.

Quantum of Damage
133. The plaintiff was, I am satisfied, personally offended by the matter complained of. He had been positively elated by the thought that he would be shown on national television and that his views would be broadcast to the nation. He was bitterly disappointed. He was humiliated in front of his family. He was held out as imposing dishonestly on his employer by a well-respected current affairs program. He was aware that friends, relatives, work mates and employers, past, present and future might view the program. His protests were peremptorily rejected.

134. As against that, he did not have to defend himself against possible belief in the truth of the matter complained of by his then current employer and co-employees.

135. No-one whom he later spoke to appeared to believe the imputation of imposition. Insofar as he was embarrassed by his reference to tower crane operators, that was, of course, his own concern. He could not blame the defendant for that.

136. So far as damage to reputation is concerned, I accept that outside the Canberra region, including both New South Wales and this Territory, the damage would be small. However, I do not accept that the allegation was not a serious one.

137. The plaintiff is a person who has only his labour to sell. He works in an industry where hard work is respected. Employers in the industry would obviously be concerned to hire reliable and hardworking employees. If the plaintiff became known as one who cheated on his employer, his chances of employment would be seriously diminished.

138. For injury to feelings I award $10,000.00. For damage to reputation, I award $7,500.00. I find $5,000.00 of that sum attributable to publication in this Territory, $2,000.00 to publication in New South Wales and in the other jurisdictions in which publication and identification was, relevantly, proved.

139. There was no submission that aggravated damages should be awarded.

140. I will, therefore, award $17,500.00 damages to the plaintiff. I will hear the parties as to interest and costs.