Ben Coogan and Alice Sinclair

Between fact and theory: Public broadcaster to pay Qld family huge defamation damages award – now subject to appeal

Ben Coogan and Alice Sinclair

10 January 2019

Defamation

Over $3.7 million in damages and injunctive relief was recently awarded by the Supreme Court of Queensland1 to the family behind a highly successful Toowoomba business, in what commentators have labelled an ‘extraordinary attack’ on their legacy by a prominent public broadcaster.

 

The Wagner family, comprised of Denis, John, Neill and Joe (Wagners) are owners and shareholders of the family business known as Wagners, established in 1989 as a concrete transport and quarry business before rapidly expanding into fields such as composite fibre, reinforced steel, concrete crushing and a public airport [14].

The publications

The Wagners brought proceedings against Harbour Radio Pty Ltd, Radio 4BC Brisbane Pty Ltd, renowned public broadcaster, Alan Jones and journalist, Nicholas Cater (Defendants) with respect to 32 allegedly defamatory publications which aired in radio broadcasts over a 10 month period in 2014 and 2015.  Harbour Radio and Radio 4BC publish ‘The Alan Jones Breakfast Show’ and ‘The Alan Jones Hour’, which features highlights from the breakfast show, respectively [2].

The publications related to the Wagners alleged involvement in a devastating flood event on 10 January 2011, when rapidly rising floodwaters from the Lockyer Valley engulfed the town of Grantham and its surrounds, resulting in the deaths of 12 people, including young children, by drowning [20].

In particular, the publications concerned the role played by a quarry owned and operated by the Wagners in the flood event [28].

While it was not disputed that the Defendants published the relevant matters,[5] Justice Flanagan heard lengthy submissions to determine whether the matters concerned the Wagners, whether the imputations, if conveyed, were defamatory, and whether the Defendants could rely on defences of substantial truth,2 fair report & proceedings of public concern,3 contextual truth4 and failure to accept a reasonable offer to make amends5 under the Defamation Act 2005 (Qld).

The alleged imputations

Broadly, the Wagners’ asserted that the broadcasts gave rise to imputations that each of them:

  • Orchestrated with others a high-level cover-up of involvement in the deaths of people at Grantham, in order to avoid being held to account and to protect their financial interests;
  • Had plenty to hide in that respect….to ensure that [their] culpability was never investigated [35]; and
  • Had caused the deaths of 10 adults and 2 children by crudely constructing an unauthorised levee on the quarry’s western boundary, which, upon bursting, resulted in lethal waves that flooded into and devastated the town of Grantham [67].

Defamatory

Justice Flanagan took into account the context of the broadcasts, including the words, tone and delivery used by Jones in order to determine the impression left upon an ‘ordinary reasonable listener’ [41] who he indicated is ‘a person of fair average intelligence,…neither perverse, nor morbid or suspicious of mind, nor avid for a scandal’.6 He noted that an imputation will be defamatory where it is ‘likely to lead an ordinary reasonable person to think less of the plaintiffs’7 and that such a listener, unlike a lawyer, will draw implications much more freely, especially when they are derogatory [99].

As a broadcast is a transient publication, the court was required to focus on the impression of the hypothetical first time-listener. In this respect, Justice Flanagan drew on Justice Chaney’s reasoning in Rayney v The State of Western Australia [No 9]8 in articulating the dangers created by a process of analysis in which the Court likely listens to the broadcasts multiple times [36].

Nevertheless, his Honour confirmed that it is the Court’s proper role to objectively determine the actual meaning of the words broadcast and any imputations they give rise to [38].

Among the Defendant’s submissions, his Honour rejected contentions that:

  • References to Wagners would be understood as references to the corporate entity, rather than the individual plaintiffs [48]; and
  • That first-time listeners would consider the Wagners were at most ‘beneficiaries’ of a cover-up and not necessarily those who ‘orchestrated’ it [41].

His Honour considered the latter contention relied on an overly close parsing of the words used rather than on the actual impression created by the broadcast [43].

The Court agreed with the Wagners’ submission that Jones, through use of sarcasm and selective pausing, invited listeners to speculate and adopt a suspicious approach from the get-go. The third and sixth matters in particular provide useful illustrations of the powerful impressions created by Jones’ word-choice, tone and emphasis.

When describing the flood event, despite the contradictory findings of the Queensland Flood Inquiry, Jones, through emphasis on the phrases “hours” of video footage, “hundreds of photographs” and “eyewitness accounts” presents his representation that the collapse of the Wagners’ quarry caused the catastrophic influx of water as irrefutable fact rather than theory [71].

The court concluded that the hypothetical listener would have emerged with the impression that the deaths of the people at Grantham had not been investigated and the truth had been suppressed by the owners of the Grantham Quarry, the Wagners [41]. Further, that the Wagners had caused the ensuing deaths by crudely constructing an unauthorised levee on the Quarry’s western boundary, which, upon bursting, resulted in lethal waves that flooded into and devastated the town of Grantham [67].

The unsuccessful defences

The Defendants unsuccessfully raised defences of substantial truth,9 fair report & proceedings of public concern,10 contextual truth11 and failure to accept reasonable offer to make amends.12

Damages and injunction

In awarding damages, Justice Flanagan took into account the ‘very extensive’ publication of the broadcasts to Jones’ wide-reaching audience over a substantial period, the severity of the imputations conveyed and the deleterious impacts on the Wagners’ social and psychological wellbeing.

His Honour considered an award of over $850,000 to each Plaintiff was necessary to represent a full and public vindication and assure bystanders of the baselessness of the allegations [845].

Additionally, the Wagners successfully received a permanent injunction, preventing Jones, Harbour Radio and 4BC from ever again broadcasting or publishing the same or similar defamatory material. The Court held that such an order was crucial to ensure non-repetition of the defamatory imputations, particularly given that Jones persisted to attack the Wagners’ reputations throughout the proceedings.

Considering the extent of publication and severity of the allegations, it appears that this generous award was to compensate for the profound personal hurt and reputational damage inflicted on the Wagners and to restore their previously held reputations for honesty and integrity in Grantham and the wider community.

Appeal on foot

Justice Flanagan’s decision is now subject to an appeal to the Queensland Court of Appeal. Pending this judgment, Wagner & Ors v Harbour Radio Pty Ltd & Ors indicates that media figures are not impervious to scrutiny and that substantial penalties may result from defamatory publications.

——

Resources

1 Wagner & Ors v Harbour Radio Pty Ltd  & Ors [2018] QSC 201.

2 Defamation Act 2005 (Qld) s 25.

3 Defamation Act 2005 (Qld) s 29.

4 Defamation Act 2005 (Qld) s 26.

5 Defamation Act 2005 (Qld) s 28.

6 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, 165-167.

7 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, 473.

8 [2017] WASC 367, [87].

9 Defamation Act 2005 (Qld) s 25.

10 Defamation Act 2005 (Qld) s 29.

11 Defamation Act 2005 (Qld) s 26.

12 Defamation Act 2005 (Qld) s 28.