High watermark – Supreme Court of Queensland orders $3.7M in damages for defamation

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

Last week, the Supreme Court of Queensland ordered influential radio broadcaster Alan Jones and the licensees of the 2GB and 4BC radio stations to pay over $3.7M in damages to the Toowoomba based Wagner brothers in one of the largest defamation claims brought before a Queensland court.

Denis, John, Neill and Joe Wagner claimed that Mr Jones defamed them in a series of broadcasts on his popular talkback radio shows between October 2014 and August 2015. The Wagners pointed to 32 separate broadcasts where Mr Jones discussed the devastating flooding which occurred in the Lockyer Valley in 2011 and, in particular, the death of 12 people in the small town of Grantham, 100km west of Brisbane.

The Honourable Justice Flanagan found that during these broadcasts, Mr Jones made statements to the effect that:

• a levee constructed adjacent to a quarry operated and managed by a Wagners entity had collapsed during the 2011 floods leading to a significant surge in downstream floodwaters and, consequently, they were directly responsible for the loss of life at Grantham;
• the Wagners attempted to cover up their responsibility for the flood event at Grantham, including by conspiring with prominent members of Federal and State government;
• the Wagners had illegally constructed the Wellcamp Airport and had unlawfully acquired airspace above the Oakey Army Base, thus harming national defence interests;
• the Wellcamp Airport was able to be constructed because the Wagners had a corrupt relationship with the Coalition government in Queensland and Canberra; and
• the Wagners were selfish, insensitive and had falsely claimed to have themselves suffered during the Grantham flood event.

In an extensive 344-page judgment, Justice Flanagan dissected each broadcast said by the Wagners to give rise to defamatory statements. In many instances, the crucial question was whether the words spoken by Mr Jones were capable of conveying a particular meaning or ‘imputation’ regarding the Wagners.

The ordinary reasonable listener

In determining whether the particular words used by Mr Jones conveyed certain imputations about the Wagners, the Court asked itself how an ‘ordinary reasonable listener’ would have understood the words used in the broadcast.[1] This begs the question, who is an ‘ordinary reasonable listener’?

Broadly speaking, it is a person of ‘fair average intelligence’ who ‘does not live in an ivory tower but can and does read between the lines in light of that person’s general knowledge and experience of worldly affairs’.[2]  Importantly, when the Court determines the impression that is left on the ‘ordinary reasonable listener’ consideration is given to the fact that unlike the reader of a written document, the listener of a radio broadcast often does not have the opportunity to reconsider and re-analyse the broadcast.

In this regard, Justice Flanagan noted that he ‘remained mindful’ of the danger associated with re-listening to broadcasts a number of times prior to arriving at his decision.[3]

Once it was established that the broadcasts were capable of conveying certain imputations about the Wagners, the Court was then required to determine whether these imputations were in fact defamatory. In many instances, it was admitted by the defendants that if the particular imputation about the Wagners was conveyed by the words spoken by Mr Jones, it was defamatory.

However, occasionally the defendants argued (unsuccessfully) that even if a particular imputation was conveyed it was not defamatory. Again, the Court was required to adopt a reasonableness test, asking ‘whether the published matter is likely to lead an ordinary reasonable person to think less of the plaintiff.’ [4]

Defaming an individual or a corporation?

In some instances, it was disputed whether the statements made by Mr Jones during his broadcasts were ‘of and concerning the Plaintiffs’. Under the Defamation Act 2005 (Qld) (Defamation Act), companies do not generally have the right to bring an action in defamation.[5] It was therefore necessary for the Wagner brothers to establish that Mr Jones was referring to each of them as individuals during the relevant broadcasts. Notwithstanding that many of Mr Jones’ broadcasts referred to the ‘the Wagners dam’ or ‘the Wagner airport’,[6] Justice Flanagan found that this was sufficient to identify each of the plaintiffs individually.

Were the broadcasts substantially true?

In mounting their defence, Mr Jones and 2GB sought to establish that many of the defamatory imputations broadcast about the Wagners were in fact substantially true.[7] The defendants attempted to prove that the Wagners were in fact responsible for the surge of floodwater that killed 12 people at Grantham during the 2011 floods. In addition to the numerous eyewitnesses that gave evidence, four expert witnesses were called, including two hydrologists, a geomorphologist and a civil engineer.

After a detailed examination of the evidence relating to the causes of the floodwater surge, the Court found that the defendants could not establish the truth of the various imputations made by Mr Jones that the Wagners were responsible for the loss of life at Grantham.

A particularly interesting element of this decision was the Court’s treatment of the two Commissions of Inquiry concerning the 2011 floods.[8] Justice Flanagan noted that the relevance of these two inquiries was limited to background information. His Honour noted that the ultimate findings of the inquiries were irrelevant and consideration could only be given to the evidence presented at trial.

Offer to make amends

The defendants also defended the proceedings on the basis that the Wagners failed to accept an offer to make amends by Mr Jones, 2GB and 4BC. Pursuant to section 18 of the Defamation Act, it is a defence to an action for defamation if the defendant offers to make amends for the defamatory publication and the plaintiff does not accept the offer. However, for the defence to apply the offer to make amends must be reasonable.[9]

On 27 November 2015 (one month after the claim was filed by the Plaintiffs), the defendants offered to make amends by:

• broadcasting an apology and retraction;
• paying the legal expenses of the Wagners; and
• paying to each of the Wagner brothers the sum of $50,000.

In finding that this offer was not reasonable, Justice Flanagan referred to the fact Mr Jones’ broadcasts contained extremely serious and grave allegations, including that the Wagners were responsible for the death of 12 people and had attempted to orchestrate a cover up to avoid blame.

In the circumstances, the offer to pay the sum of $50,000 was ‘grossly inadequate’.[10] His Honour further found that the draft apology and retraction which accompanied the offer was ‘wholly inadequate’,[11] referring to the fact that ‘the apology does not contain an expression of regret…nor does it contain an unqualified acknowledgment of the falsity of the defamations and a withdrawal of them’.[12] Accordingly, the defendants were unable to rely on the defence contained in section 18 of the Defamation Act.

A rare permanent injunction

Of particular interest, due to its rarity in these types of cases, the plaintiffs sought a permanent injunction to prevent each of Mr Jones, 2GB and 4BC from ever again publishing or broadcasting the same or similar defamatory material about the Wagners.

Significantly, and in support of his decision to award the injunction, Justice Flanagan noted that, even in the course of giving his evidence during the trial, Mr Jones had ‘chose[n] to continue to attack the plaintiff reputations and to repeat many of the defamatory imputations’.[13]  The effect of the injunction is that if the defendants ever again re-broadcast the defamatory statements about the Wagners, they will be held in contempt of court.

Take home message

In what is likely to be a regularly-cited decision, Wagners v Harbour Radio represents a significant victory for plaintiffs seeking to vindicate their rights under the Defamation Act. The decision reinforces that in proceedings for defamation, the media is not untouchable and can be required to pay large sums of money for continuously publishing defamatory material.

It is also a timely reminder that although corporations are generally excluded from bringing an action in defamation, there can be situations where it is not possible to distinguish between the corporate entity and those who are the face of the company, thus opening up the possibility of commencing an action for defamation.

Perhaps most importantly, the decision demonstrates the powerful remedies that can be awarded by courts in order to both compensate for, and permanently restrain, the publication of defamatory material.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.