SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201 PARTIES: FILE NO/S: No of 2015 DIVISION: PROCEEDING: ORIGINATING COURT: DENIS WAGNER (first plaintiff) JOHN WAGNER (second plaintiff) NEILL WAGNER (third plaintiff) JOE WAGNER (fourth plaintiff) v HARBOUR RADIO PTY LTD (ACN ) (first defendant) ALAN BELFORD JONES (second defendant) RADIO 4BC BRISBANE PTY LTD (ACN ) (third defendant) NICHOLAS CHARLES CATER (fourth defendant) Trial Trial Supreme Court at Brisbane DELIVERED ON: 12 September 2018 DELIVERED AT: HEARING DATES: JUDGE: ORDERS: Brisbane 30 April-4 May, 8-11 May, May, May, May, May, June Further written submissions 15 June Flanagan J (a) First Plaintiff As against the first defendant and second defendant 1. It is ordered that the first and second defendants pay to the first plaintiff damages for defamation in the sum of $750,000 plus interest in the amount of $78, for the publications pleaded at paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second

2 2 further amended statement of claim filed on 30 April As against the second defendant and the third defendant 2. It is ordered that the second defendant and the third defendant pay to the first plaintiff damages for defamation in the sum of $100,000 plus interest in the amount of $10, for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April Injunction 3. The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published: (a) (b) any of the 27 matters complained of in paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and any of the imputations in Attachment 35 to these Reasons of and concerning the first plaintiff, or any imputation that does not differ in substance to any of those imputations. 4. The second defendant is permanently restrained, by himself and/or his servants or agents, from publishing or causing to be published: (a) (b) any of the 29 matters complained of in paragraphs 10, 13, 16, 22, 26, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and any of the imputations in Attachment 35 to these Reasons of and concerning the first plaintiff, or any imputation that does not differ in substance to any of those imputations. 5. The third defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published:

3 3 (a) (b) (b) Second Plaintiff any of the 2 matters complained of in paragraphs 22 and 26 of the amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and any of the imputations in Attachment 35 to these Reasons of and concerning the first plaintiff, or any imputation that does not differ in substance to any of those imputations. As against the first defendant and second defendant 6. It is ordered that the first and second defendants pay to the second plaintiff damages for defamation in the sum of $750,000 plus interest in the amount of $78, for the publications pleaded at paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April As against the second defendant and the third defendant 7. It is ordered that the second defendant and the third defendant pay to the second plaintiff damages for defamation in the sum of $100,000 plus interest in the amount of $10, for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April Injunction 8. The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published: (a) (b) any of the 27 matters complained of in paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and any of the imputations in Attachment 35 to these Reasons of and concerning the second plaintiff, or any imputation that does not differ in substance to any of those imputations.

4 4 9. The second defendant is permanently restrained, by himself and/or his servants or agents, from publishing or causing to be published: (a) (b) any of the 29 matters complained of in paragraphs 10, 13, 16, 22, 26, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and any of the imputations in Attachment 35 to these Reasons of and concerning the second plaintiff, or any imputation that does not differ in substance to any of those imputations. 10. The third defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published: (a) (b) (c) Third Plaintiff any of the 2 matters complained of in paragraphs 22 and 26 of the amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and any of the imputations in Attachment 35 to these Reasons of and concerning the second plaintiff, or any imputation that does not differ in substance to any of those imputations. As against the first defendant and second defendant 11. It is ordered that the first and second defendants pay to the third plaintiff damages for defamation in the sum of $750,000 plus interest in the amount of $78, for the publications pleaded at paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April As against the second defendant and the third defendant 12. It is ordered that the second defendant and the third defendant pay to the third plaintiff damages for defamation in the sum of $100,000 plus interest in the amount of $10, for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April 2018.

5 5 Injunction 13. The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published: (a) (b) any of the 27 matters complained of in paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and any of the imputations in Attachment 35 to these Reasons of and concerning the third plaintiff, or any imputation that does not differ in substance to any of those imputations. 14. The second defendant is permanently restrained, by himself and/or his servants or agents, from publishing or causing to be published: (a) (b) any of the 29 matters complained of in paragraphs 10, 13, 16, 22, 26, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and any of the imputations in Attachment 35 to these Reasons of and concerning the third plaintiff, or any imputation that does not differ in substance to any of those imputations. 15. The third defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published: (a) (b) (d) Fourth Plaintiff any of the 2 matters complained of in paragraphs 22 and 26 of the amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and any of the imputations in Attachment 35 to these Reasons of and concerning the third plaintiff, or any imputation that does not differ in substance to any of those imputations. As against the first defendant and second defendant

6 6 16. It is ordered that the first and second defendants pay to the fourth plaintiff damages for defamation in the sum of $750,000 plus interest in the amount of $78, for the publications pleaded at paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April As against the second defendant and the third defendant 17. It is ordered that the second defendant and the third defendant pay to the fourth plaintiff damages for defamation in the sum of $100,000 plus interest in the amount of $10, for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April Injunction 18. The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published: (a) (b) any of the 27 matters complained of in paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and any of the imputations in Attachment 35 to these Reasons of and concerning the fourth plaintiff, or any imputation that does not differ in substance to any of those imputations. 19. The second defendant is permanently restrained, by himself and/or his servants or agents, from publishing or causing to be published: (a) (b) any of the 29 matters complained of in paragraphs 10, 13, 16, 22, 26, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and any of the imputations in Attachment 35 to these Reasons of and concerning the fourth plaintiff, or any imputation that does not differ in substance to any of those imputations.

7 7 CATCHWORDS: 20. The third defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published: (a) (b) any of the 2 matters complained of in paragraphs 22 and 26 of the amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and any of the imputations in Attachment 35 to these Reasons of and concerning the fourth plaintiff, or any imputation that does not differ in substance to any of those imputations. (e) First, Second, Third and Fourth Plaintiffs 21. The plaintiffs claims against the fourth defendant are dismissed. 22. I will hear the parties as to costs. DEFAMATION STATEMENTS AMOUNTING TO DEFAMATION PARTICULAR STATEMENTS IMPUTATIONS where the plaintiffs sue in respect of 32 separate matters, the majority of which are radio broadcasts where the defendants admit that they published, or were responsible for the publication of, the 32 matters complained of where the plaintiffs allege that these publications give rise to 98 defamatory imputations where the alleged imputations primarily concern the plaintiffs role in the Grantham Floods of 2011, and the plaintiffs construction of Wellcamp Airport where the action was tried by a judge sitting alone whether the alleged imputations are conveyed whether the alleged imputations are of and concerning the plaintiffs whether the alleged imputations are defamatory of the plaintiffs DEFAMATION DEFENCES JUSTIFICATION TRUTH SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH FAIR REPORT MATTER OF PUBLIC INTEREST OTHER DEFENCES where the defendants seek to establish defences of substantial truth, contextual truth, and fair report of proceedings of public concern where the defendants prior to trial extended to the plaintiffs a written offer to make amends where the defendants plead that the plaintiffs failure to accept that offer constitutes a further defence pursuant to s 18 of the Defamation Act 2005 (Qld) whether the imputations are defensible on any of the pleaded grounds whether the defendants offer to make amends was, in all the circumstances, reasonable DAMAGES GENERAL DAMAGES ASSESSMENT SPECIAL MATTERS AGGRAVATION where the plaintiffs claim an award of damages in a single sum pursuant

8 8 to s 39 of the Defamation Act 2005 (Qld) where the plaintiffs seek general and aggravated damages where the plaintiffs claim for aggravated damages rests partly on the defendants publication of 53 additional radio broadcasts, all of which pre-date the broadcasts complained of in the present proceedings whether the plaintiffs may rely on these prior broadcasts for the purposes of aggravation whether the prior broadcasts evidence malice on the part of the second defendant DAMAGES GENERAL DAMAGES ASSESSMENT SPECIAL MATTERS AGGRAVATION where s 35 of the Defamation Act 2005 (Qld) places a statutory cap on damages for non-economic loss where the section further provides that the cap may be exceeded if, and only if, a court finds an award of aggravated damages is warranted whether, even where such a finding is made, the cap remains a relevant factor in a court s assessment of damages DAMAGES GENERAL DAMAGES ASSESSMENT SPECIAL MATTERS MITIGATION where the plaintiffs have commenced two separate defamation actions in addition to the present proceedings where the plaintiffs have settled one of those actions where the other remains on foot where the defendants plead that the imputations alleged in the two additional proceedings have the same meaning or effect as those forming the subject of the present proceedings whether the additional proceedings function to mitigate any damages awarded pursuant to s 38 of the Defamation Act 2005 (Qld) Defamation Act 2005 (Qld), s 3, s 8, s 18, s 25, s 26, s 29, s 34, s 35, s 38, s 39 Uniform Civil Procedure Rules 1999 (Qld), r 428, r 429A Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; [1998] NSWSC 4, followed Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15, applied Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263, cited Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154, applied Bristow v Adams [2012] NSWCA 166, cited Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31, followed Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89; [2014] QCA 33, applied Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37, applied Collins Stewart Ltd & Anor v The Financial Times Ltd (No 2) [2005] EWHC 262 (QB), considered Curistan v Times Newspapers Ltd [2009] 2 WLR 149; [2008] EWCA Civ 432, considered David Syme & Co v Canavan (1918) 25 CLR 234; [1918]

9 9 HCA 50, cited Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, cited Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77, cited Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329, cited Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, applied Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52, applied Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822, cited Hallam v Ross (No 2) [2012] QSC 407, cited Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; (2015) 332 ALR 257; [2015] FCA 652, cited Hough v London Express Newspaper Ltd [1940] 2 KB 507, considered Howden v Truth & Sportsman Ltd (1937) 58 CLR 416; [1938] ALR 208; [1937] HCA 74, applied John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364, cited John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205, applied John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; [2003] HCA 50, cited Jones v E Hulton & Co [1909] 2 KB 444, cited Jones v Skelton (1963) 37 ALJR 324; [1963] 1 WLR 1362; [1963] UKPC 29, cited Lee v Wilson & Mackinnon (1934) 51 CLR 276; [1935] ALR 51; [1934] HCA 60, cited Lewis v Daily Telegraph Ltd [1964] AC 234, cited Ley v Hamilton (1935) 153 LT 384, cited Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited McAlpine v Bercow [2013] EWHC 1342 (QB), cited Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; [1982] HCA 50, considered Morgan v Odhams Press Ltd [1971] 1 WLR 1239, applied Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19; [2017] QCA 70, applied Nixon v Slater & Gordon (2000) 175 ALR 15; [2000] FCA 531, cited Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485; [1980] HCA 1, applied Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16, applied Rayney v The State of Western Australia [No 9] [2017] WASC 367, applied

10 10 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52, applied Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, followed Triggell v Pheeney (1951) 82 CLR 497; [1951] ALR 453; [1951] HCA 23, applied Universal Communication Network Inc trading as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd & Chan [2008] NSWCA 1, cited Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50, considered Wilson v Bauer Media Pty Ltd [2017] VSC 521, considered Wright v Caan [2011] EWHC 1978 (QB), cited Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283, applied COUNSEL: SOLICITORS: TD Blackburn SC with PJ McCafferty for the plaintiffs RJ Anderson QC with R De Luchi for the defendants Corrs Chambers Westgarth for the plaintiffs Banki Haddock Fiora for the defendants

11 Table of Contents Introduction The issues Background The First Matter Second Matter Third Matter Fifth Matter Sixth Matter Seventh Matter Eighth Matter Ninth Matter Tenth Matter Eleventh Matter Mr Cater s liability Twelfth Matter Fourteenth Matter Fifteenth Matter Sixteenth Matter Seventeenth Matter Eighteenth Matter Nineteenth Matter Twentieth Matter Twenty-First Matter Twenty-Second Matter Twenty-Third Matter Twenty-Fourth Matter Twenty-Fifth Matter Twenty-Sixth Matter Twenty-Seventh Matter Twenty-Eighth Matter Twenty-Ninth Matter Thirtieth Matter Thirty-First Matter Thirty-Second Matter Thirty-Third Matter Thirty-Fourth Matter

12 12 Conclusion Imputations Conveyed Defence of substantial truth or justification section 25 of the Act Category 1 the plaintiffs responsibility for the role played by the quarry in the Grantham Flood event The expert evidence (a) Dr Smart (b) Dr Maroulis (c) Mr Dam (d) Dr Newton (e) The eyewitnesses (f) Conclusion Truth Defence Category Category 2 the plaintiffs engaged in conduct designed to cover up the role played by them and the quarry in the Flood event Category 3 the plaintiffs were involved in bullying and intimidation Category 4 the plaintiffs constructed and operated the Wellcamp Airport in breach of all the rules (a) No approvals obtained under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) ( the EPBC ) (b) Public criticism and formal objections (c) Expert town planning evidence Category 5 the plaintiffs are self-interested and greedy Defence of fair report of proceedings of public concern section 29 of the Act Defence of contextual truth section Failure to accept reasonable offer to make amends section Damages A single sum section The plaintiffs claim for damages (a) General damages principles (b) Aggravated damages principles (c) The plaintiffs reliance on 53 prior broadcasts (d) Section 35 statutory cap General Damages (a) The plaintiffs reputations (b) Extent of publication (c) Seriousness of the imputations (d) Hurt to feelings Aggravated damages

13 13 (a) Unjustifiable conduct (i) Circumstances of the Publications (ii) Conduct of the proceedings (b) Mr Jones motive to injure the plaintiffs reputations (c) Increased harm to the plaintiffs feelings and reputations Mitigation Assessment of Damages Interest Injunction Disposition (a) First Plaintiff As against the first defendant and second defendant As against the second defendant and the third defendant Injunction (b) Second Plaintiff As against the first defendant and second defendant As against the second defendant and the third defendant Injunction (c) Third Plaintiff As against the first defendant and second defendant As against the second defendant and the third defendant Injunction (d) Fourth Plaintiff As against the first defendant and second defendant As against the second defendant and the third defendant Injunction (e) First, Second, Third and Fourth Plaintiffs ADDENDUM... 1 Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment

14 14 Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Attachment Imputations Conveyed Introduction [1] The plaintiffs are four brothers from Toowoomba who, since 1989, have built a highly successful business. They sue in defamation in respect of 32 publications. The publications, with one exception, 1 are radio broadcasts which aired between 28 October 2014 and 20 August The one exception is the Nineteenth Matter, which was published by the second defendant on Sky News in the course of the Richo + Jones Program and subsequently uploaded by the first defendant to the 2GB website at

15 15 [2] The second defendant, Alan Jones, has been a public broadcaster on radio since He has mainly worked on AM radio, utilising a talkback format as well as broadcasting opinion pieces. 2 He presents a daily program titled The Alan Jones Breakfast Show ( the Jones Program ). This program is broadcast and published by the first defendant, Harbour Radio Pty Ltd, on radio station 2GB and the 2GB website. The first defendant is the licensee of 2GB ( 2GB ). [3] The third defendant, Radio 4BC Brisbane Pty Ltd, is the licensee of radio station 4BC and the broadcaster and publisher of The Alan Jones Hour program on 4BC and the 4BC website ( 4BC ). This program is a one-hour edit of the highlights from the Jones Program. 3 [4] The fourth defendant, Nicholas Cater, is a journalist and an occasional guest of Mr Jones on the Jones Program. [5] As to the 32 matters complained of, it is not in issue that the defendants published or were responsible for publishing one or more of the matters: (a) 2GB admits that it is responsible for the publication of each of the matters with the exception of the Fifth and Sixth Matters, which are the broadcasts of the Alan Jones Hour by 4BC on 24 February 2015 and 26 February 2015; 4 (b) Mr Jones admits he published each of the 32 matters complained of; 5 (c) 4BC admits that it is responsible for the publication of the Fifth and Sixth Matters; 6 and (d) Mr Cater admits publication of the words attributed to him in the Eleventh Matter. 7 The issues [6] The publication of each of the 32 matters complained of constitutes a separate cause of action 8 requiring independent consideration. 9 [7] On 10 October 2017, Applegarth J granted the plaintiffs application for the proceeding to be tried without a jury. 10 As observed by his Honour, that application was founded upon the multiplicity and complexity of the issues in the proceeding. 11 In order to refine and confine the many issues in this case, the parties were directed to file an agreed list of 2 T 12-3, lines 43; T12-4, lines T 12-6, lines SFASC, paragraphs 6(g), 22, 26 and FFAD, paragraph 2(f). 5 SFASC, paragraph 7(c) and FFAD, paragraph 4(b)(ii). 6 SFASC, paragraph 8(e) and FFAD, paragraph 6(e). 7 FFAD, paragraph 4(b)(iv). 8 Section 8 of the Defamation Act 2005 (Qld). 9 There were originally 34 broadcasts, but the plaintiffs no longer rely on the fourth and thirteenth broadcasts; SFASC, Attachments 1 to Wagners & Ors v Harbour Radio Pty Ltd & Ors [2017] QSC 222. The proceeding was case managed by Applegarth J as part of the Supervised Case List. 11 Wagners & Ors v Harbour Radio Pty Ltd & Ors [2017] QSC 222 at [75].

16 16 issues. The final (and shorter) 12 version of this document, entitled Issues for Determination, was filed on 4 June The relevant issues are identified in respect of each of the 32 matters complained of. The 32 publications are alleged to give rise to 98 defamatory imputations. While it is possible to group some of the imputations, it is necessary to consider in respect of each matter whether, in its natural and ordinary meaning, it conveyed the pleaded imputations (or any imputation which is not substantially different). In relation to three of the matters complained of, 13 the plaintiffs rely on the extrinsic fact of earlier broadcasts by Mr Jones. [8] Typically, apart from deciding whether the imputations are conveyed, the issues to be determined include the following: 1. whether the matter is of and concerning the plaintiffs; whether the imputations, if conveyed, are defamatory; whether, if any of the imputations are conveyed, they are substantially true within the meaning of s 25 of the Defamation Act 2005 (Qld) ( the Act ); whether the defence of contextual truth under s 26 of the Act is available. 17 This gives rise to the following sub-issues: (a) did the relevant matter carry, in addition to the defamatory imputations of which the plaintiffs complain, the following contextual imputations: (i) (ii) the plaintiffs conduct business on their own terms, with disregard for the laws that regulate them; and the plaintiffs conduct business on their own terms, with disregard for the impact operations have on the broader community; (b) (c) are the contextual imputations, if conveyed, substantially true; did the imputations proved by the plaintiffs to be defamatory not cause further harm to them because of the substantial truth of the contextual imputations; 5. whether the defence of fair report of proceedings of public concern under s 29 of the Act is available. 18 This gives rise to the following sub-issues: 12 The original Issues for Determination document was 91 pages and reduced in the course of the trial to a final version of 36 pages. 13 Fifth, Eighteenth and Twenty-Second Matters. 14 In respect of eight matters complained of. 15 In respect of 13 imputations. 16 In respect of 72 imputations. 17 In respect of six matters. 18 In respect of 11 matters.

17 17 (a) (b) was the relevant matter a fair report (or contained within a fair report) of a proceeding of public concern; and if the relevant matter was (or was contained within) a fair report of a proceeding of public concern, was it published honestly for the information of the public. [9] There are two further issues to be determined: 1. whether the defendants are entitled to a defence to the proceeding under s 18 of the Act, on the basis that the plaintiffs failed to accept a reasonable offer to make amends made on 27 November This gives rise to the following sub-issues: (a) (b) did the defendants make an offer to make amends as soon as practicable after becoming aware that the matters were or may be defamatory; and was the offer reasonable in all the circumstances; 2. the assessment of damages, including whether the plaintiffs are entitled to aggravated damages and whether there are mitigating factors. [10] On the first day of trial, the defendants applied for, and were granted leave to file, a fourth further amended defence. The plaintiffs did not oppose this application. The amendments were substantial in that there were changes both to the number and nature of the defences raised and also to some of the facts relied on in relation to the truth defence. First, the defence of fair comment at common law previously pleaded in paragraph 143 was deleted. Also deleted was the qualified privilege defence under s 30 of the Act and at common law including as to government and political matters. To establish a defence of qualified privilege under s 30 of the Act, the defendants would have been required to prove that their conduct in publishing the matters complained of was reasonable in the circumstances. 19 This is no longer an issue in the proceeding. [11] The defendants also no longer seek to justify certain alleged defamatory imputations. This includes a serious alleged imputation that the plaintiffs conspired with the then Deputy Prime Minister, Warren Truss, and Barnaby Joyce, to cover up the plaintiffs culpability for the deaths of people in the Grantham flood disaster. 20 [12] On the final day of the trial, the defendants also abandoned the defence of honest opinion under s 31 of the Act Section 30(1)(c) of the Defamation Act 2005 (Qld). 20 SFASC, paragraph 73(a); FFAD deleted paragraphs 141(a)(i)(3), 141(a)(ii)(4), Attachment A truth, paragraph 1(l). 21 T 23-3, line 46 to T 23-4, line 4.

18 18 Background [13] The plaintiffs were all born and grew up in Toowoomba. Each is married with four children. Their father, Henry Wagner, conducted a concrete quarry, stone masonry and earthmoving business based in Toowoomba. The stone masonry business was established as early as [14] In 1989, a business, generally known as Wagners, was established, initially by Denis Wagner, John Wagner, Neill Wagner and their father. Each held a 25 per cent shareholding in the business. Henry Wagner held his shareholding on trust for the fourth plaintiff, Joe Wagner. He has worked in the business since 1991 and became an owner in 2006 when his father retired. [15] The business commenced in a relatively small way as a concrete transport and quarry business but rapidly grew. The plaintiffs have expanded the business into areas such as composite fibre products, reinforced steel, concrete crushing and a public airport. [16] As part of the quarry business, the plaintiffs, through Wagner Investments Pty Ltd, purchased a quarry at Grantham in November Up until about November 2011, the quarry was managed and operated by another Wagner entity. In August/September 2010, the plaintiffs commenced negotiating with Boral Ltd for the sale of Wagners concrete and quarry business. These negotiations included four quarries, one of which was the Grantham quarry. 22 The sale transaction was completed on 8 December Denis Wagner was primarily responsible for Wagners concrete and quarry business. [17] In 1994, the plaintiffs purchased a large parcel of land (310 hectares) at Toowoomba Cecil Plains Road, Wellcamp. The Wellcamp site is approximately 15 kilometres to the east of Toowoomba. The Oakey Army Aviation Centre is located approximately 16 kilometres to the north-west. 24 [18] In 2001, Dr David Pascoe and Heather Brown purchased land across the road from the Wellcamp site. Their land is approximately 81 hectares and is operated as a thoroughbred horse stud called Plaintree Farms. Ms Brown formerly worked as a journalist for The Australian. She has known Mr Jones since about They would socialise together and generally remain in touch. 25 [19] In 2012, after the sale to Boral Ltd was completed, the plaintiffs decided to seek approval to have the Wellcamp site developed into a public airport. John Wagner was primarily responsible for obtaining town planning consents for the airport. Denis Wagner was responsible for the actual construction of the airport. 26 Construction on the airport commenced in T 1-34, lines 5-9; Exhibit 20, TB Vol 14, Tabs 622 and T 1-34, lines Exhibit 40, Town Planning Report of Mr Greg Ovenden, 29 November 2017, page 7, paragraph and page 8, paragraph T 16-66, lines T 3-38, lines

19 19 [20] On 10 January 2011, significant flooding occurred in the Lockyer Valley. A comparison of historical event hydrographs shows that the January 2011 flood was an exceptional event. The peak flood level at Helidon was about five metres higher than any other historical flood since 1974 and the rate of rise was at least four times faster. 27 The flooding in and around Grantham on 10 January 2011 was significantly different from previous floods. Many eyewitness reports describe rapidly rising floodwater. The flooding in Grantham resulted in 12 people, including young children, tragically losing their lives through drowning ( the Grantham Flood event ). [21] At the time of the Grantham Flood event Mr Cater was the acting editor of The Australian. He made a number of visits to Grantham after the January 2011 floods. He subsequently visited Grantham six times between late 2013 and On these visits, he spoke to a number of local residents who had witnessed the Grantham Flood event. [22] Mr Jones became involved in the flood relief effort in Queensland shortly after 10 January During this period he was contacted by a number of Grantham residents who were present at the Grantham Flood event. Mr Jones was born and raised in the Toowoomba region and feels a particular affinity with the area. 29 [23] The Grantham Flood event occurred in the context of wider disastrous flooding across Queensland. This led to the establishment, on 17 January 2011, of the Commission of Inquiry into the Queensland Floods of Justice Holmes (as her Honour then was) was appointed as Commissioner to head the inquiry ( the Queensland Floods Inquiry ). [24] The Queensland Floods Inquiry engaged Dr Phillip Jordan, hydrologist, to undertake modelling and provide his opinion as to the role, if any, that the quarry played in the flooding in Grantham. Dr Jordan s second report concluded, and the Queensland Floods Inquiry accepted, that: (a) (b) (c) (d) the quarry mitigated the impact of flooding by reducing peak flood levels by between 0.04 and 0.1 metres; peak flood velocities in Grantham were not affected; the quarry attenuated the flows, causing a five-minute delay in the water rise; and at some other locations, the existence of the quarry elevated flood levels slightly including by 0.3 metres upstream of the breach, and by 0.04 metres near Dorrs Road, east of the quarry. 30 [25] The Grantham Flood event was the subject of a second Commission of Inquiry ( the Grantham Floods Inquiry ). On 11 May 2015, Walter Sofronoff QC (as his Honour then was) was appointed to investigate: 27 Exhibit 17, Report of Dr David Newton, 16 March 2018, page 29, [40] (Attachment 6 to Exhibit 15, Joint Expert Report). 28 T 14-79, lines T 12-3, lines Defendants Outline of Argument Part 1, [138].

20 20 (a) (b) (c) (d) (e) the flooding of the Lockyer Creek between Helidon and Grantham on 10 January 2011, with specific reference to any natural or man-made features of the landscape which could have altered or contributed to the flooding; whether the existence or breach of the Grantham quarry caused or contributed to the flooding at Grantham; whether the existence or breach of the Grantham quarry had a material impact on the damage caused by the flooding at Grantham; whether the breach of the Grantham quarry had implications for evacuation of Grantham; and how these matters were first investigated and how eyewitness accounts were dealt with, particularly by state government agencies and emergency services. 31 [26] Mr Sofronoff QC presented his report on 7 October 2015 after extensive public hearings, at which numerous residents of Grantham gave evidence of what they experienced in the course of the Grantham Flood event. Additionally, a number of experts in hydrology and hydraulics were called. The conclusions of the Grantham Floods Inquiry were relevantly as follows: (a) (b) (c) (d) (e) Grantham flooded on 10 January 2011 in the way that it did because of the combination of the volume of water that surged down Lockyer Creek that afternoon and the natural shape of the land near Grantham; the first stage of the flooding was not a surprise to the residents. Sandy Creek had not infrequently flooded the town in the past when the Lockyer Creek rose; the second stage of the flooding was a consequence of the Lockyer Creek rising to a sufficient level that it broke its banks to the south-west of Grantham. That required a significant surge of water down the Lockyer Creek. That surge was caused by the rain that had been dumped in the upper catchment of the Lockyer Creek earlier in the afternoon into a saturated catchment. The only effect of the quarry on this second stage of the flood was to slightly delay its commencement by up to a few minutes because the quarry pit briefly absorbed part of the flow; the third stage of the flooding was due to Lockyer Creek rising in the U-shaped bend to the point where it overtopped Quarry Access Road and water was then funnelled by a natural channel towards Grantham to the east. This flow took the residents of Grantham by surprise and dramatically exacerbated the already dangerous flooding of the town. As with the flow from the south, the only effect of the quarry on this second stage of the flooding was to delay its commencement by up to a few minutes while the quarry pit absorbed part of the flow coming down the Lockyer Creek and so delay of the moment at which the waters overtopped Quarry Access Road; quarry or no quarry, if there is ever another sudden dump of water in the upper catchment of the Lockyer Creek of the order of that which fell on 10 January 2011, the same thing will happen again Exhibit 20, TB Vol 3, Tab 152, Grantham Floods Commission of Inquiry Report, October 2015, Terms of Reference, page Exhibit 20, TB Vol 3, Tab 152, Grantham Floods Commission of Inquiry Report, October 2015, page 86, paragraphs 81 and 82; page 87, paragraphs 83 and 84; page 88, paragraph 100.

21 21 [27] It is necessary to refer to both the Queensland Floods Inquiry and the Grantham Floods Inquiry by way of background, because the findings of both Inquiries and the establishment of the Grantham Floods Inquiry were the subject of discussion by Mr Jones in a number of the matters complained of and by Mr Cater in the Eleventh Matter complained of. [28] The 32 matters complained of broadly concern two subjects. The first is the role played by the quarry in the Grantham Flood event. The second is the legality and propriety of the approval processes undertaken by the plaintiffs in developing the airport at Wellcamp. The First Matter [29] The First Matter was broadcast on radio 2GB on 28 October 2014 commencing at approximately 8.12 am. [30] Attachment 1 to these Reasons is a transcript of the words spoken by Mr Jones. 33 [31] 2GB and Mr Jones admit that the First Matter was of and concerning each of the plaintiffs. 34 [32] It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs: (a) (b) 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 for those deaths, and to protect his financial interests; and had plenty to hide in connection with the deaths of people at Grantham and in concert with others was knowingly involved in a high-level cover-up to ensure that his culpability for those deaths was never investigated. 35 [33] The parties are agreed as to the principles to be applied in determining the natural and ordinary meaning of the words. These principles are well established. The natural and ordinary meaning of the words complained of is the meaning which an ordinary listener would give to the words. The Court must therefore assume the role of the ordinary reasonable listener. The relevant question is whether the ordinary reasonable listener would have understood the matters complained of in the defamatory sense pleaded. 36 This is not simply the literal meaning of the words, but also extends to any implied or inferred or indirect meanings. 37 No evidence is admissible on the issue of meaning. It is to be determined objectively, by reference to the hypothetical construct of the ordinary reasonable listener, who is taken to glean the single natural and ordinary meaning of each distinct charge conveyed by the broadcast. The meaning that a defendant intended to convey is irrelevant. So too is the manner in which the publication was actually 33 Apart from typographical errors, the transcript is admitted: FFAD 9(a). Transcripts of the matters complained of are reproduced in these Reasons with original typographical errors intact. 34 Amended Attachment A to the Defendants Outline of Argument Part SFASC, paragraph Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [11] and [17]. 37 Jones v Skelton [1963] 1 WLR 1362 at 1371 per Lord Morris.

22 22 understood. 38 How the ordinary reasonable listener determines meaning is a matter of impression. 39 [34] The relevant principles, including the attributes and characteristics of the ordinary reasonable listener, were identified by Hunt CJ at CL in Amalgamated Television Services Pty Ltd v Marsden 40 as follows: (a) (b) (c) (d) (e) (f) (g) (h) the ordinary reasonable reader is a person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for a scandal; that person does not live in an ivory tower but can and does read between the lines in the light of that person s general knowledge and experience of worldly affairs; the mode or manner of publication is a material matter in determining whether the imputation is conveyed; the more sensational a publication, the less likely it is that the ordinary reasonable person will read it with the degree of analytical care which may otherwise have been given to a less sensational publication; the ordinary reasonable person considering such a publication is understandably prone to engage in a certain amount of loose thinking; a wide degree of latitude is given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual; these considerations, and more, apply to matter published in a transient form, particularly in the electronic media; the reader of a written document has the opportunity to consider or to re-read the whole document at leisure and to check back on something, and in doing so change the first impression, but the listener or viewer has no such opportunity; and the ordinary listener must be assumed to have heard and seen the whole of the program, but he or she may not have devoted the same degree of concentration to each part of the program as would have been given to a written article particularly, I would say, where it is the radio 41 and may have missed the significance of the existence, early in a program, of a qualification of a statement made later in the same material. [35] In addition to these principles the plaintiffs emphasise three further points, each of which the plaintiffs submit assumes critical importance in the present case: 78. First, the ordinary reasonable listener does not give equal weight to every part of a publication. As McHugh J observed (in the context of the ordinary reasonable reader) in John Fairfax Publications Pty Limited v Rivkin (2003) 77 ALJR 1657 at [26]: But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, 38 Plaintiffs Submissions, [73]. 39 Lewis v Daily Telegraph Ltd [1964] AC 234 at 260, 281 and 285 per Lord Diplock. 40 (1998) 43 NSWLR 158 at (1998) 43 NSWLR 158 at 166.

23 23 headings and captions is a legitimate matter that readers do and are entitled to take into account. 79. Second, the meaning an ordinary reasonable listener attributes to a broadcast, that is the impression that person forms, is influenced by other matters. For example, a broadcast may be pregnant with insinuation, or suggestion, and a broadcaster may seek to guide a listener to adopt a suspicious approach but not care to or dare to express matters in direct terms. 80. Indeed, a broadcaster may convey an imputation indirectly or stealthily. As the Privy Council said in Jones v Skelton, supra, at 651, in a passage later applied by Lord Keith of Kinkel (on behalf of himself and Lords Elwyn Jones, Roskill and Griffiths) in Lloyd v David Syme & Co Ltd [1986] AC 350 at 363H 364A: The [listener], a jury might conclude, was invited to adopt a suspicious approach and so to be guided to the real explanation of what had taken place an explanation which the [broadcaster] did not care or did not dare to express in direct terms. 81. Lord Keith characterised this (in the same passage) as being anxious to wound but fearful to strike too obviously. 82. Gleeson CJ observed memorably in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 that: It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong. 83. Third, these matters have a significant bearing on meaning for this reason: if a broadcaster invites the listener to adopt a suspicious approach or invites conjecture, then the broadcaster is liable for conclusions that an ordinary reasonable listener may reach as a result of that invitation. Similarly, as the majority observed in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [11]: Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd, that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges. 84. These three further matters are of critical importance to the present case. The reasons why are apparent when the audio of each of the broadcasts are considered. The vast majority of Mr Jones broadcasts are sensationalist in tone, are pregnant with insinuation and suggestion. In many instances Mr Jones, by his tone, invites his listeners to adopt a suspicious approach, and he repeatedly invites conjecture Plaintiffs Submissions, [78]-[84].

24 24 [36] In determining whether the imputations are conveyed, I have listened to each of the relevant broadcasts. In the course of the trial a number of the broadcasts were played, and I have listened to some of them a number of times. Both parties filed written submissions as to whether the imputations are conveyed. These submissions make extensive reference to the transcript of each broadcast. It is, of course, the sounds I hear from the audio of each broadcast that constitute the evidence. A danger is created by listening to a broadcast more than once and reading the transcripts. This danger was identified by Chaney J in Rayney v The State of Western Australia [No 9] where his Honour, similar to the present case, was conducting a judge-only trial: I am mindful that that process of analysis creates a real danger of departing from the task of assessing the meaning of the words in a way that a reasonable person, receiving the information for the first time, would understand them according to their ordinary and natural meaning. It also tends to lead to the risk of analysis as a lawyer and of overlooking the important reminder for judges that ordinary readers and listeners draw implications much more freely, especially when they are derogatory. 43 [37] In determining whether the imputations are conveyed I have remained mindful of this danger. [38] Both parties accept that the Court is not bound by the imputations pleaded by the plaintiffs. As stated in Chakravarti v Advertiser Newspapers Ltd: 44 As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focusses on some different factual basis. [39] It is for the Court to determine the actual meaning of the words broadcast. 45 If the Court finds a defamatory meaning that is a mere nuance or variation of the pleaded meaning, or a less serious meaning that does not cause any prejudice to the defendants, the plaintiffs are entitled to succeed on that issue. [40] The plaintiffs do not rely on any extrinsic fact of previous broadcasts in submitting that the First Matter carried the two pleaded imputations. The first broadcast is quite short. It begins by Mr Jones announcing A very significant day in Queensland today, capturing the listeners attention. He then refers to a speech to be given in the Queensland Parliament by Dr Alex Douglas in relation to Grantham. Mr Jones identifies the significance of his reference to Grantham by stating, Of course the deaths of people which have never been investigated. He then emphasises that Big things are said to come out of Queensland this week. Having already referred to Grantham in the context 43 [2017] WASC 367 at [87]. 44 (1998) 193 CLR 519 at 546 per Gaudron and Gummow JJ; see also David Syme & Co v Hore-Lacy (2000) 1 VR 667 at 674, 686 and Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 at 152 and Hockey v Fairfax Media Publications Pty Ltd (2015) 332 ALR 257 at [73]; Plaintiffs Submissions, [88].