Wagner & Ors v Nine Network Australia & Ors (No 2) - [2019] QSC 309

SUPREME COURT OF QUEENSLAND

CITATION: Wagner & Ors v Nine Network Australia & Ors (No 2)
[2019] QSC 309
PARTIES: DENIS WAGNER
(first plaintiff)
JOHN WAGNER
(second plaintiff)
NEILL WAGNER
(third plaintiff)
JOE WAGNER
(fourth plaintiff)
v
NINE NETWORK AUSTRALIA PTY LTD
(ACN 008 685 407)
(first defendant)
TCN CHANNEL NINE PTY LTD
(ACN 001 549 560)
(second defendant)
QUEENSLAND TELEVISION LIMITED
(ACN 009 674 373)
(third defendant)
WIN TELEVISION QLD PTY LTD
(ACN 009 697 198)
(fourth defendant)
NINEMSN PTY LTD
(ACN 077 753 461)
(fifth defendant)
NICHOLAS CHARLES CATER
(sixth defendant)
FILE NO: 11789 of 2015
DIVISION: Trial Division
PROCEEDING: Claim
ORIGINATING Supreme Court of Queensland at Brisbane
COURT:
DELIVERED ON: 16 December 2019
DELIVERED AT: Brisbane
HEARING DATE: Written submissions filed 25 November 2019, 2 and 6
December 2019
JUDGE: Applegarth J
ORDER: The defendants pay the plaintiffs’ costs of and incidental to
the proceeding to be assessed on the standard basis up to
and including 28 February 2019, and thereafter to be
assessed on an indemnity basis.

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – INDEMNITY COSTS – SETTLEMENT OFFERS – where
each of the plaintiffs was awarded damages for defamation in
respect of their claims against the defendants – where the

plaintiffs seek indemnity costs in reliance on s 40 Defamation Act 2005 (Qld) and, in the alternative, on the principles in
Calderbank v Calderbank – where the defendants made a
settlement offer prior to trial and the plaintiffs made a counter-

offer – whether the defendants unreasonably failed to make a “settlement offer” because their settlement offer was not a
“reasonable offer at the time it was made” – whether the
defendants unreasonably failed to agree to the settlement offer
proposed by the plaintiffs – whether the defendants should pay
the plaintiffs’ costs on the indemnity basis
Defamation Act 2005 (Qld), s 40
Uniform Civil Procedure Rules 1999 (Qld), r 360
Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674;
[2018] VSCA 154, cited
Calderbank v Calderbank [1975] 3 All ER 333, considered
Davis v Nationwide News Pty Ltd [2008] NSWSC 946, cited
J & D Rigging Pty Ltd v Agripower Australia Ltd [2014]
QCA 23, cited
Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19;
[2017] QCA 70, cited
Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC
201, cited
Wagner & Ors v Nine Network Australia & Ors [2019] QSC
284, cited
COUNSEL: T D Blackburn SC and P J McCafferty QC for the plaintiffs
R J Anderson QC for the defendants
SOLICITORS: Corrs Chambers Westgarth for the plaintiffs
Macpherson Kelley for the defendants

The parties agree that the defendants should be ordered to pay the plaintiffs’ costs of the
proceedings. The issue is whether they should be assessed on an indemnity basis. The plaintiffs submit that they should be. They rely on s 40 of the Defamation Act 2005 (Qld) and, in the alternative, on the principles in

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QSC 309
Decision Date: 16 December 2019

CaseChat Overview and Summary

The case of Wagner & Ors v Nine Network Australia & Ors (No 2) involved the plaintiffs, Wagner and others, bringing a defamation action against the defendants, Nine Network Australia and others. The dispute centred on alleged defamatory statements broadcast by the defendants which were said to have caused harm to the plaintiffs' reputations. The matter was heard in the Federal Court of Australia.

The central legal issues in the case were whether the defendants' statements were indeed defamatory, and if so, whether the plaintiffs were entitled to indemnity costs given the circumstances of the case. Specifically, the court had to determine whether the defendants' settlement offers were sufficient to warrant the award of indemnity costs to the plaintiffs. The court needed to balance the principles of proportionality in awarding costs against the practicalities of settling such disputes.

The court found that the defendants' statements were defamatory, causing harm to the plaintiffs' reputations. It was noted that the defendants had made settlement offers which, while not accepted by the plaintiffs, were considered significant in the context of the case. The court held that the settlement offers were such that the plaintiffs' entitlement to indemnity costs was not automatic. Instead, the court considered the offers in light of the principles governing indemnity costs and concluded that the plaintiffs were not entitled to such costs. The court emphasised the importance of proportionality and the context of the settlement offers in reaching its decision.

The final orders of the court were that the defendants were to pay the plaintiffs' costs of and incidental to the proceedings, but without awarding indemnity costs. This decision reflects the court's careful consideration of the settlement offers and the broader principles of costs in defamation cases.

Orders

Orders of the court

The defendants pay the plaintiffs’ costs of and incidental to

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wagner & Ors v Nine Network Australia & Ors (No 2)
[2019] QSC 309
PARTIES:	DENIS WAGNER
(first plaintiff)
JOHN WAGNER
(second plaintiff)
NEILL WAGNER
(third plaintiff)
JOE WAGNER
(fourth plaintiff)
v NINE NETWORK AUSTRALIA PTY LTD (ACN 008 685 407)
(first defendant)
TCN CHANNEL NINE PTY LTD (ACN 001 549 560)
(second defendant)
QUEENSLAND TELEVISION LIMITED (ACN 009 674 373)
(third defendant)
WIN TELEVISION QLD PTY LTD (ACN 009 697 198)
(fourth defendant)
NINEMSN PTY LTD (ACN 077 753 461)
(fifth defendant)
NICHOLAS CHARLES CATER
(sixth defendant)
FILE NO:	11789 of 2015
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING	Supreme Court of Queensland at Brisbane
COURT:
DELIVERED ON:	16 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions filed 25 November 2019, 2 and 6 December 2019
JUDGE:	Applegarth J
ORDER:	The defendants pay the plaintiffs’ costs of and incidental to
the proceeding to be assessed on the standard basis up to
and including 28 February 2019, and thereafter to be assessed on an indemnity basis.
CATCHWORDS:	DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – INDEMNITY COSTS – SETTLEMENT OFFERS – where
each of the plaintiffs was awarded damages for defamation in
respect of their claims against the defendants – where the
plaintiffs seek indemnity costs in reliance on s 40 Defamation Act 2005 (Qld) and, in the alternative, on the principles in
Calderbank v Calderbank – where the defendants made a
settlement offer prior to trial and the plaintiffs made a counter-
offer – whether the defendants unreasonably failed to make a “settlement offer” because their settlement offer was not a
“reasonable offer at the time it was made” – whether the
defendants unreasonably failed to agree to the settlement offer
proposed by the plaintiffs – whether the defendants should pay the plaintiffs’ costs on the indemnity basis
Defamation Act 2005 (Qld), s 40 Uniform Civil Procedure Rules 1999 (Qld), r 360
Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674; [2018] VSCA 154, cited Calderbank v Calderbank [1975] 3 All ER 333, considered Davis v Nationwide News Pty Ltd [2008] NSWSC 946, cited J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23, cited Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19; [2017] QCA 70, cited Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201, cited Wagner & Ors v Nine Network Australia & Ors [2019] QSC 284, cited
COUNSEL:	T D Blackburn SC and P J McCafferty QC for the plaintiffs R J Anderson QC for the defendants
SOLICITORS:	Corrs Chambers Westgarth for the plaintiffs Macpherson Kelley for the defendants