Guilty of $3.75 million radio defamation? … Mr Jones I presume: Wagner v Harbour Radio PL & Ors [2018] QSC 201

Denis, John, Neill and Joe Wagner are brothers from Toowoomba and the owners of a highly successful family business. Their father, Henry had conducted a concrete quarry, stone masonry and earthmoving business. The sons rapidly expanded the business into areas such as reinforced steel, concrete crushing and a public airport. In 1994, they bought a parcel of land in Wellcamp which they proposed to develop into a public airport and in 1998, they bought a quarry at Grantham.

The defendant

The Wagners managed the Grantham quarry up until November 2011. Around that time, it was sold to Boral. On 10 January 2011, natural disaster hit – a significant flood in the Grantham area that resulted in 12 people, including young children, tragically drowning. The flooding occurred in the context of wider flooding in Queensland. On 17 January 2011, the Queensland government set up a Commission of Inquiry into the Queensland Floods.

The Inquiry found that the plaintiff’s quarry had mitigated the impact of the flooding. Subsequently, there was another inquiry specifically into the Grantham Floods. There were extensive public hearings and a report was presented on 7 October 2015. It concluded, among other things, that the only impact of the quarry was to slightly delay the commencement of the flooding and that whether there was a quarry or not, if there was ever another sudden dump of water in that area, the same thing would happen again.

The second defendant, Allan Jones, a notorious talk-back radio figure in Australia, was on-air on 2GB, the station operated by the first defendant. He was responsible for a raft of 32 separate items about the plaintiffs broadcast between 28 October 2014 and 20 August 2015. The third defendant was another radio station, 4GB in Brisbane and the fourth defendant, Mr Cater, a journalist who was an occasional guest of Mr Jones.

The defamation trial broadly concerned the defendants’ radio broadcasts relating to two subjects:

  • the role played by the quarry in the Grantham flood event; and
  • the legality and propriety of the approval processes undertaken by the plaintiffs in developing their airport at Wellcamp.

The trial in the Queensland Supreme Court started on 30 April and ran through all of May before closing submissions were heard in June. A 386-page written judgment was delivered by Justice Flanagan on 12 September.

The plaintiffs’ case was that the 32 defamatory publications gave rise to 98 separate imputations, and those imputations fell broadly within five categories, namely:

(i)                 the plaintiffs’ responsibility for the role played by the quarry in the Grantham flood event;

(ii)               the plaintiffs engaged in conduct designed to cover up the role played by them and the quarry in the flood event;

(iii)             the plaintiffs were involved in bullying and intimidation;

(iv)              the plaintiffs constructed and operated the Wellcamp airport in breach of all of the rules; and

(v)                the plaintiffs are self-interested and greedy.

The defendants claimed defences of truth, fair report of proceedings of public concern and failure by the plaintiffs to accept their offer of amends.

In the course of the trial, the defendants withdrew a defence of honest opinion. Among all of the

Queensland Supreme Court

publications, there were still a number of imputations that the defendants did not claim were true. These included an imputation that the plaintiffs conspired with the Deputy Prime Minister and Barnaby Joyce to cover up the plaintiffs’ culpability for the deaths of people in the Grantham flood disaster. Serious stuff. Counsel for the defendants conceded that an award of damages had to be made as a result.

Working meticulously through each of the publications, Justice Flanagan ultimately concluded that 80 imputations were conveyed by the 32 radio broadcasts. These specifically included:

  • the plaintiffs caused the deaths of 12 people by constructing a dam at the quarry which collapsed under the weight of water, causing the Grantham flood;
  • the plaintiffs orchestrated a cover-up of their role in the deaths of 19 (sic) people in the Grantham flood disaster, in order to protect their own financial interests;
  • the plaintiffs were involved in orchestrating a disgusting campaign of vilification, bullying and intimidation to prevent the truth coming out at the Queensland Floods Inquiry;
  • the plaintiffs, in concert with the State Government and police, criminally conspired over a period of four years in a disgraceful and massive cover-up of the cause of the horrific and terrifying Grantham flood;
  • the plaintiffs terrorised and vilified two ordinary people, forcing them to change address and live in fear because they threatened to expose the truth about their involvement in the horrific flooding of the town of Grantham and the deaths of a number of people, including a baby;
  • the plaintiffs illegally obtained a national asset, the airspace over Oakey Military Base, for use at their private airport.
  • the plaintiffs were corrupt businessmen in that they were able to build an airport in breach of all laws by reason of their connections with the Premier and other government officials.

Compartmentalising the many imputations into the five categories, Justice Flanagan found that the truth defences asserted by the defendants all failed.

The defendants called 15 witnesses who lived in Grantham at the time of the flood and gave eyewitness accounts of what they saw. In analysing the cause of the Grantham floods, and attempting to sheet home responsibility to the plaintiffs, the defendants relied on evidence from an expert, Dr Smart. Justice Flanagan concluded that Dr Smart’s evidence was concerning and he had adopted the role of being an advocate for the defendants [476], ie. not independent.

Accordingly, it was found that the defendants did not adduce sufficient evidence to establish that the plaintiffs had caused the floods and the deaths of the people in those floods.  The defendants also failed to adduce evidence to establish the truth of the other four categories of imputations. Obviously, they were all very serious and once the truth defences failed, it could have only spelt bad news for Mr Jones.

It followed that the radio broadcasts were not fair reports of proceedings of public concern. They intermingled content about the inquiry with extraneous materials and Mr Jones’ opinion as to what the inquiry would ultimately conclude, namely that the plaintiffs had illegally constructed a levee which collapsed, resulting in the deaths of 12 people at Grantham. Mr Jones was wrong. The defence failed.

The defendants also contended that they had a defence because the plaintiffs had failed to accept a reasonable offer to amends pursuant to section 18 of the Defamation Act. That offer from the defendants included an “apology” from Mr Jones and $50,000 for each plaintiff. Having considered the contents of it, the “apology” proffered by the defendants was described by Justice Flanagan as “wholly inadequate”.

Justice Flanagan concluded that the offer to amends was not reasonable in the circumstances. These circumstances particularly included that the defendants faced significant difficulty in establishing any of their defences, the defamations were very serious and the plaintiffs faced little risk in establishing that they were defamed by the broadcasts.

It was then a matter of assessing damages, including aggravated damages. Justice Flanagan followed the recent approaches taken by the Victorian and Western Australian Supreme Courts that, if there was aggravating conduct, then the cap for damages in the Act did not apply. As it stands as at 30 June 2018, the cap is $398,500. However, Justice Flanagan found that there was aggravating conduct by the defendants and so the cap did not apply again.

The aggravating conduct included:

  • Mr Jones was wilfully blind to the truth or falsity of the defamatory imputations [826];
  • Mr Jones repeated many of the defamatory accusations in court;
  • Mr Jones was motivated to injure the plaintiffs’ reputations [860]. In one of the broadcasts, Mr Jones referred to the plaintiffs as the Beverly Hillbillies;
  • Mr Jones wrote to Alan Joyce, head of Qantas and stated that the plaintiffs would bribe him, in relation to use of the airport at Wellcamp.

The defendants sought to have the plaintiffs’ damages reduced by also referring to previous defamation proceedings that they brought. The first case was against a newspaper, The Spectator, which was settled with the newspaper paying the plaintiffs $572,674. The second proceedings were defamation claims by the plaintiffs that are still to be heard against Channel Nine. Justice Flanagan found that these did not detract from this proceeding and the plaintiffs were entitled to very substantial damages and an injunction restraining the defendants from further publishing the same claims.

The damages were assessed and each of the four plaintiffs won:

  • $750,000 as against the first and second defendants plus interest of $78,102.74;
  • $100,000 as against the second and third defendants plus interest of $10,643.84.

Totalling $938,746.58 for each of the four and in all: $3,754,986.32, a new leader for the highest verdict in Australian history. Channel Nine awaits….