Wagner v Harbour Radio Pty Ltd - [2018] QSC 267

SUPREME COURT OF QUEENSLAND

CITATION:

Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 267

PARTIES:

DENIS WAGNER

(first plaintiff )

JOHN WAGNER
(second plaintiff)
NEILL WAGNER
(third plaintiff)
JOE WAGNER
(fourth plaintiff)
v
HARBOUR RADIO PTY LTD (ACN 010 853 317)
(first defendant)
ALAN BELFORD JONES
(second defendant)
RADIO 4BC BRISBANE PTY LTD (ACN 009 662 784)
(third defendant)
NICHOLAS CHARLES CATER

(fourth defendant)

FILE NO:

10830 of 2015

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 November 2018

DELIVERED AT:

Brisbane

HEARING DATES:

Written submissions filed 2 October 2018, 12 October 2018 and 17 October 2018. Oral hearing 19 October 2018. Further written submissions filed 23 October 2018 and 29 October 2018.

JUDGE:

Flanagan J

ORDER:

1.    The first, second and third defendants pay the first, second, third and fourth plaintiffs’ costs of the proceedings:

       (a)     to but not including 30 April 2018, to be assessed on the indemnity basis; and

       (b)     thereafter from and including 30 April 2018, to be assessed on the standard basis.

2.    The first, second, third and fourth plaintiffs pay the fourth defendant’s costs of the proceedings.

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – INDEMNITY COSTS – SETTLEMENT OFFERS – where each of the plaintiffs, following a judge-alone trial, was awarded damages for defamation in respect of their claims against the first, second and third defendants – where the plaintiffs’ claims against the fourth defendant were dismissed – where the plaintiffs seek indemnity costs as against the first, second and third defendants – where the plaintiffs’ argument is in part founded on s 40 of the Defamation Act 2005 (Qld) – where the defendants, prior to and in the opening weeks of trial, extended four settlement offers to the plaintiffs – where this Court in earlier reasons held the first of those offers to be unreasonable – where the plaintiffs extended one counter-offer to the defendants – whether the defendants’ failure to include an apology in their second and third offers to settle, and inclusion of an inadequate apology in their fourth offer, rendered the offers unreasonable for the purposes of s 40 – whether the defendants’ failure to accept the plaintiffs’ counter-offer, to which was appended a pre-written apology to be made by the fourth defendant, was unreasonable for the purposes of s 40

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – UNREASONABLE CONDUCT OR DELINQUENCY RELATING TO PROCEEDINGS – HOPELESS CASES – FORM OF COSTS ORDERS – where the plaintiffs in the alternative seek indemnity costs pursuant to r 703 of the Uniform Civil Procedure Rules 1999 (Qld) – where the second defendant at trial repeated, in the course of his oral evidence, imputations later held by this Court to be defamatory – where the second defendant’s conduct has already attracted an award by this Court of aggravated damages in the plaintiffs’ favour – where the defendants on the first day…

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.

Keep reading for free

Create a free CaseChat account to read Wagner v Harbour Radio Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] QSC 267
Decision Date: 16 November 2018

CaseChat Overview and Summary

The case of Wagner v Harbour Radio Pty Ltd involved multiple plaintiffs bringing claims for defamation against several defendants. The proceedings resulted in the plaintiffs being awarded damages against the first, second, and third defendants, while the claims against the fourth defendant were dismissed. The plaintiffs sought indemnity costs against the first, second, and third defendants, arguing that the defendants' conduct during the litigation was unreasonable and contributed to unnecessary costs. The plaintiffs also argued for indemnity costs under specific provisions of the Defamation Act 2005 (Qld) and the Uniform Civil Procedure Rules 1999 (Qld).

The court had to determine whether the defendants' settlement offers were reasonable and if their failure to accept the plaintiffs' counter-offer was unreasonable. Additionally, the court considered whether the defendants' conduct during the litigation, including the repetition of defamatory imputations and the alteration of defences, warranted indemnity costs under the Uniform Civil Procedure Rules. The court assessed whether the defendants' conduct caused the plaintiffs to incur unnecessary costs and whether any costs awarded should be apportioned on both standard and indemnity bases.

The court found that the defendants' conduct during the litigation was unreasonable in several respects. The defendants made settlement offers that were either unreasonable or included inadequate apologies. The court also found that the defendants' conduct during the trial, such as the repetition of defamatory imputations and the alteration of defences, contributed to unnecessary costs for the plaintiffs. As a result, the court ordered that the first, second, and third defendants pay the plaintiffs' costs up until 30 April 2018 on an indemnity basis and thereafter on a standard basis. The plaintiffs, in turn, were ordered to pay the costs of the fourth defendant.

In summary, the court held that the defendants' conduct during the litigation and trial was unreasonable and warranted an award of indemnity costs against them, while the plaintiffs were ordered to bear the costs of the fourth defendant. The specific orders detailed the basis on which costs were to be assessed and paid, ensuring that the parties' financial responsibilities were clearly delineated.

Orders

Orders of the court

1. The first, second and third defendants pay the first, second, third and fourth plaintiffs’ costs of the proceedings:

(a) to but not including 30 April 2018, to be assessed on the indemnity basis; and

(b) thereafter from and including 30 April 2018, to be assessed on the standard basis.

2. The first, second, third and fourth plaintiffs pay the fourth defendant’s costs of the proceedings.

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 Harbour Radio Pty Ltd & Ors [2018] QSC 267
PARTIES:	DENIS WAGNER (first plaintiff ) JOHN WAGNER (second plaintiff) NEILL WAGNER (third plaintiff) JOE WAGNER (fourth plaintiff) v HARBOUR RADIO PTY LTD (ACN 010 853 317) (first defendant) ALAN BELFORD JONES (second defendant) RADIO 4BC BRISBANE PTY LTD (ACN 009 662 784) (third defendant) NICHOLAS CHARLES CATER (fourth defendant)
FILE NO:	10830 of 2015
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 November 2018
DELIVERED AT:	Brisbane
HEARING DATES:	Written submissions filed 2 October 2018, 12 October 2018 and 17 October 2018. Oral hearing 19 October 2018. Further written submissions filed 23 October 2018 and 29 October 2018.
JUDGE:	Flanagan J
ORDER:	1. The first, second and third defendants pay the first, second, third and fourth plaintiffs’ costs of the proceedings: (a) to but not including 30 April 2018, to be assessed on the indemnity basis; and (b) thereafter from and including 30 April 2018, to be assessed on the standard basis. 2. The first, second, third and fourth plaintiffs pay the fourth defendant’s costs of the proceedings.
CATCHWORDS:	DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – INDEMNITY COSTS – SETTLEMENT OFFERS – where each of the plaintiffs, following a judge-alone trial, was awarded damages for defamation in respect of their claims against the first, second and third defendants – where the plaintiffs’ claims against the fourth defendant were dismissed – where the plaintiffs seek indemnity costs as against the first, second and third defendants – where the plaintiffs’ argument is in part founded on s 40 of the Defamation Act 2005 (Qld) – where the defendants, prior to and in the opening weeks of trial, extended four settlement offers to the plaintiffs – where this Court in earlier reasons held the first of those offers to be unreasonable – where the plaintiffs extended one counter-offer to the defendants – whether the defendants’ failure to include an apology in their second and third offers to settle, and inclusion of an inadequate apology in their fourth offer, rendered the offers unreasonable for the purposes of s 40 – whether the defendants’ failure to accept the plaintiffs’ counter-offer, to which was appended a pre-written apology to be made by the fourth defendant, was unreasonable for the purposes of s 40 PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – UNREASONABLE CONDUCT OR DELINQUENCY RELATING TO PROCEEDINGS – HOPELESS CASES – FORM OF COSTS ORDERS – where the plaintiffs in the alternative seek indemnity costs pursuant to r 703 of the Uniform Civil Procedure Rules 1999 (Qld) – where the second defendant at trial repeated, in the course of his oral evidence, imputations later held by this Court to be defamatory – where the second defendant’s conduct has already attracted an award by this Court of aggravated damages in the plaintiffs’ favour – where the defendants on the first day…