Wagner v Harbour Radio Pty Ltd - [2018] QSC 201

SUPREME COURT OF QUEENSLAND

CITATION:

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

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/S:

No 10830 of 2015

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 September 2018

DELIVERED AT:

Brisbane

HEARING DATES:

30 April-4 May, 8-11 May, 14-15 May, 17-18 May, 21‑25 May, 28-30 May, 13-14 June 2018. Further written submissions 15 June 2018.

JUDGE:

Flanagan J

ORDERS:

(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 $78,102.74 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 2018.

       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 $10,643.84 for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April 2018.

Injunction

3.     The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published:

(a)      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

(b)     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)      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

(b)     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:

(a)      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

(b)     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.

(b)  Second Plaintiff

       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 $78,102.74 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 2018.

       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 $10,643.84 for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April 2018.

Injunction

8.     The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published:

(a)      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

(b)     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.

9.     The second defendant is permanently restrained, by himself and/or his servants or agents, from publishing or causing to be published:

(a)      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

(b)     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)      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

(b)     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.

(c)  Third Plaintiff

       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 $78,102.74 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 2018.

       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 $10,643.84 for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April 2018.

Injunction

13.    The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published:

(a)      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

(b)     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)      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

(b)     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)      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

(b)     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.

(d)  Fourth Plaintiff

       As against the first defendant and second defendant

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 $78,102.74 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 2018.

       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 $10,643.84 for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April 2018.

Injunction

18.    The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published:

(a)      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

(b)     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)      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

(b)     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.

20.    The third defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published:

(a)      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

(b)     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.

CATCHWORDS:

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 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] 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
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:

TD Blackburn SC with PJ McCafferty for the plaintiffs

RJ Anderson QC with R De Luchi for the defendants

SOLICITORS:

Corrs Chambers Westgarth for the plaintiffs

Banki Haddock Fiora for the defendants

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

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 1

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 26

Failure to accept reasonable offer to make amends – section 18

Damages

A single sum – section 39

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

(d) Hurt to feelings

Aggravated damages

(a) Unjustifiable conduct

(i) Circumstances of the Publications
(ii) Conduct of the proceedings

(b) Mr Jones’ motive to injure the plaintiffs’ 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

(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

Attachment 1

Attachment 2

Attachment 3

Attachment 5

Attachment 6

Attachment 7

Attachment 8

Attachment 9

Attachment 10

Attachment 11

Attachment 12

Attachment 14

Attachment 15

Attachment 16

Attachment 17

Attachment 18

Attachment 19

Attachment 20

Attachment 21

Attachment 22

Attachment 23

Attachment 24

Attachment 25

Attachment 26

Attachment 27

Attachment 28

Attachment 29

Attachment 30

Attachment 31

Attachment 32

Attachment 33

Attachment 34

Attachment 35

Imputations Conveyed

Introduction

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 2015.
[1] 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 >
The second defendant, Alan Jones, has been a public broadcaster on radio since 1985. 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”).
[2] T 12-3, lines 43; T12-4, lines 1-6.
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]
[3] T 12-6, lines 29-30.
The fourth defendant, Nicholas Cater, is a journalist and an occasional guest of Mr Jones on the Jones Program.
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]
[4]     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).
The issues
The publication of each of the 32 matters complained of constitutes a separate cause of action[8] requiring independent consideration.[9]
[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 34.
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 issues. The final (and shorter)[12] version of this document, entitled “Issues for Determination”, was filed on 4 June 2018. 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.
[10]    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].
[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.
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;[14]
[14]    In respect of eight matters complained of.
2.        whether the imputations, if conveyed, are defamatory;[15]
[15]    In respect of 13 imputations.
3.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”);[16]
[16]    In respect of 72 imputations.
4.whether the defence of contextual truth under s 26 of the Act is available.[17] This gives rise to the following sub-issues:
[17]    In respect of six matters.
(a)      did the relevant matter carry, in addition to the defamatory imputations of which the plaintiffs complain, the following contextual imputations:
(i)the plaintiffs conduct business on their own terms, with disregard for the laws that regulate them; and
(ii)the plaintiffs conduct business on their own terms, with disregard for the impact operations have on the broader community;
(b)     are the contextual imputations, if conveyed, substantially true;
(c)      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:
(a)      was the relevant matter a fair report (or contained within a fair report) of a proceeding of public concern; and
(b)     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.
[18]    In respect of 11 matters.
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 2015. This gives rise to the following sub‑issues:
(a) 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
(b) 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.
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.
[19] Section 30(1)(c) of the Defamation Act 2005 (Qld).
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]
[20] SFASC, paragraph 73(a); FFAD deleted paragraphs 141(a)(i)(3), 141(a)(ii)(4), Attachment A – truth, paragraph 1(l).
On the final day of the trial, the defendants also abandoned the defence of honest opinion under s 31 of the Act.[21]
[21] T 23-3, line 46 to T 23-4, line 4.
Background
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 1896.
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.
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.
As part of the quarry business, the plaintiffs, through Wagner Investments Pty Ltd, purchased a quarry at Grantham in November 1998. 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 2011.[23] Denis Wagner was primarily responsible for Wagners’ concrete and quarry business.
[22] T 1-34, lines 5-9; Exhibit 20, TB Vol 14, Tabs 622 and 623.
[23] T 1-34, lines 26-31.
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]
[24] Exhibit 40, Town Planning Report of Mr Greg Ovenden, 29 November 2017, page 7, paragraph 2.1.1 and page 8, paragraph 2.2.1.
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 1988. They would socialise together and generally remain in touch.[25]
[25] T 16-66, lines 12-31.
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 2013.
[26] T 3-38, lines 25-43.
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”).
[27] Exhibit 17, Report of Dr David Newton, 16 March 2018, page 29, [40] (Attachment 6 to Exhibit 15, Joint Expert Report).
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 2015.[28] On these visits, he spoke to a number of local residents who had witnessed the Grantham Flood event.
[28] T 14-79, lines 40-47.
Mr Jones became involved in the flood relief effort in Queensland shortly after 10 January 2011. 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]
[29] T 12-3, lines 24-25.
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 2010-2011. Justice Holmes (as her Honour then was) was appointed as Commissioner to head the inquiry (“the Queensland Floods Inquiry”).
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)the quarry mitigated the impact of flooding by reducing peak flood levels by between 0.04 and 0.1 metres;
(b)peak flood velocities in Grantham were not affected;
(c)the quarry attenuated the flows, causing a five-minute delay in the water rise; and
(d)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]
[30] Defendants’ Outline of Argument – Part 1, [138].
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:
(a)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;
(b)whether the existence or breach of the Grantham quarry caused or contributed to the flooding at Grantham;
(c)whether the existence or breach of the Grantham quarry had a material impact on the damage caused by the flooding at Grantham;
(d)whether the breach of the Grantham quarry had implications for evacuation of Grantham; and
(e)how these matters were first investigated and how eyewitness accounts were dealt with, particularly by state government agencies and emergency services.[31]
[31] Exhibit 20, TB Vol 3, Tab 152, Grantham Floods Commission of Inquiry Report, October 2015, Terms of Reference, page 221.
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)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;
(b)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;
(c)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;
(d)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;
(e)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.[32]
[32] 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.
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.
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

The First Matter was broadcast on radio 2GB on 28 October 2014 commencing at approximately 8.12 am.
Attachment 1 to these Reasons is a transcript of the words spoken by Mr Jones.[33]
[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.
2GB and Mr Jones admit that the First Matter was of and concerning each of the plaintiffs.[34]
[34] Amended Attachment A to the Defendants’ Outline of Argument – Part 1.
It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
(a)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
(b)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]
[35] SFASC, paragraph 12.
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 understood.[38] How the ordinary reasonable listener determines meaning is “a matter of impression”.[39]
[36]    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.
[38]    Plaintiffs’ Submissions, [73].
[39]    Lewis v Daily Telegraph Ltd [1964] AC 234 at 260, 281 and 285 per Lord Diplock.
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)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;
(b)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;
(c)the mode or manner of publication is a material matter in determining whether the imputation is conveyed;
(d)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;
(e)the ordinary reasonable person considering such a publication is understandably prone to engage in a certain amount of loose thinking;
(f)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;
(g)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
(h)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.
[40] (1998) 43 NSWLR 158 at 165-167.
[41] (1998) 43 NSWLR 158 at 166.
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, 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 Favellv 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.”[42]
[42] Plaintiffs’ Submissions, [78]-[84].
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]
[43] [2017] WASC 367 at [87].
In determining whether the imputations are conveyed I have remained mindful of this danger.
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.”
[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 690.
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.
[45] 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].
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 of peoples’ deaths, he makes note of a recent speech by Lachlan Murdoch in which Mr Murdoch referenced his grandfather’s belief that journalism should be dedicated to the truth. Mr Jones places a vocal emphasis on the word “truth”. It is in this context that Mr Jones describes Grantham as “one of the most corrupt metaphors in Australia”. He then asks the listener, “Why was a Grantham cover-up orchestrated? Who was being protected?” The first question as posed by Mr Jones does not ask whether there was a cover-up, but rather assumes the existence of a cover-up and asks why such a cover-up was orchestrated. He then suggests to the listener that “this is all tied up with mining”. He also provides the listener with an answer as to who was being protected; he refers to “Wagners” as owning the “Grantham Quarry”. Reference is then made to the Wagners already being in partnership with entities that work with British Gas. Mr Jones then poses the question whether this makes the Wagners “untouchable”. He concludes:
“Well may we ask in Queensland why the Grantham cover-up? The answer in both is the same; those doing the covering-up have got plenty to hide.”
Again Mr Jones poses a question and provides the answer. The defendants submit that there is no direct suggestion that the Wagners are involved in a cover-up. The meanings can only arise by inference. Although the Wagners are referred to as owning the quarry, there is, according to the defendants, no link between the quarry and the flood and nor, for that matter, the quarry, the flood and the deaths of people in Grantham.[46] The defendants submit:
“The listener – whom we are not told to expect as having any particular background knowledge – would not be able to conclude anything from this broadcast about how people died, let alone that the Wagners were involved, or even worse, ‘culpable’ and thereby had something to hide or a financial interest to protect.”[47]
[46] Defendants’ Outline of Argument – Part 2, [4].
[47] Defendants’ Outline of Argument – Part 2, [4].
The import of the defendants’ submissions is that the Wagners were, at most, the beneficiaries of a cover-up but that does not make them, as the meanings would have it, persons who “orchestrated with others” or who were “knowingly involved in” a “high level cover-up”. I do not accept these submissions. The ordinary reasonable listener would have been left with the impression that the deaths of people at Grantham had not been investigated and that the truth had been suppressed. This was because of an orchestrated cover-up by those who had “plenty to hide”. They included the owner of the Grantham quarry, Wagners. I accept the plaintiffs’ submission that the matter invites the listener to speculate and adopt a suspicious approach.[48] The suspicious approach is invited by Mr Jones’ use of the words “cover-up” and “corrupt metaphor”, and by his reference to Wagner being “untouchable”. The broadcast having invited the listener to adopt a suspicious approach and speculate, the two pleaded imputations would be conveyed to an ordinary reasonable listener.
[48] Plaintiffs’ Submissions, [109]-[110].
The first imputation identifies two reasons for the orchestrated cover-up. The first is to allow the plaintiffs to avoid being held to account for the deaths of people at Grantham, and the second is to protect the plaintiffs’ financial interests. The first reason arises from Mr Jones’ use of the words “the deaths of people which have never been investigated”, “Grantham is one of the most corrupt metaphors in Australia”, “there are many people appalled and angered at what happened”, and his reference to the Grantham quarry being owned by Wagners. The second reason arises from Mr Jones’ reference to the cover-up being “all tied up with mining” and Wagners being in partnership with entities that work with British Gas.
The defendants’ submission that the Wagners, at most, are the beneficiaries of a cover‑up reveals, in my view, an incorrect application of the principles discussed above. The plaintiffs make the following general criticism of the defendants’ approach to the issue of whether each matter conveys the pleaded imputations:
“The plaintiffs apprehend that the defendants’ arguments on this and each of the other matters will be based on a close parsing and analysis of the words rather than on an impression created by the actual broadcast, which includes the words, the tone, the delivery – the broadcast itself.”[49]
[49] Plaintiffs’ Submissions, [110].
The imputations complained of by the plaintiffs are carried by the First Matter complained of.
Second Matter
The Second Matter was broadcast on radio 2GB on 29 October 2014 commencing at approximately 7.13 am. Attachment 2 to these Reasons is a transcript of the words spoken by Mr Jones.
The defendants dispute that the Second Matter is of and concerning the plaintiffs. The basis of the dispute, which is also relevant to six other matters complained of,[50] is that the Second Matter makes no reference to individuals. The defendants submit that the Second Matter is of and concerning the Wagner business, or corporate entity, rather than the plaintiffs.[51]
[50] Third, Eighth, Fourteenth, Twenty-First, Twenty-Second and Thirty-Fourth Matters.
[51] Defendants’ Outline of Argument – Part 2, [12].
The test for identification is an objective one, namely whether the words published might reasonably be understood to those to whom they were published to refer to the plaintiffs.[52] In Steele v Mirror Newspapers Ltd, Hutley JA observed: “The standards of reasonableness required of an identifying reader are not high.”[53] Whether the Second Matter is of and concerning the plaintiffs is a question of fact.[54] This question of fact does not depend simply upon the words used but upon all the circumstances of the broadcast, including tone, emphasis, insinuation and the fact that the broadcast is a transient publication.[55]
[52]    Plaintiffs’ Submissions, [53]-[54], citing David Syme & Co v Canavan (1918) 25 CLR 234 at 238 per Isaacs J; Jones v E Hulton & Co [1909] 2 KB 444 at 477 per Lord Farwell; and Universal Communication Network Inc trading as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd & Chan [2008] NSWCA 1 at [42].
[53] [1974] 2 NSWLR 348 at 364.
[54]    Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570 at [130]; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245.
[55]    Plaintiffs’ Submissions, [62].
The defendants submit that the Second Matter makes no reference to individuals and is not about the activities of, or a reflection upon the conduct of, individuals. The reference in the broadcast to “Wagners” would, according to the defendants, readily be understood by listeners to be a reference to the business.[56] I do not accept this submission. Mr Jones in the course of the broadcast makes reference to the following:
·“the quarry was owned by Wagners”;
·“they were already in partnership with the Wood Group, the British coal seam gas supply group that works with British Gas”;
·“Does that make Wagner untouchable?”;
·“the Wagners Sand Plant”;
·“Wagners dam”;
·“the Wagner airport”.
[56] Defendants’ Outline of Argument – Part 2, [13].
These references, in my view, would identify each of the plaintiffs to an ordinary reasonable listener. As observed by Lord Morris in Morgan v Odhams Press Ltd,[57] “the average reader does not read a sensational article with cautious and critical analytical care”. An ordinary reasonable listener would not necessarily understand the words used by Mr Jones as a reference to a business only and not to individuals. Mr Jones, for example, in referring to “Wagners” uses the personal third person pronoun “they”. Similarly he refers to “the Wagners Sand Plant”, not “Wagners Sand Plant”. In posing the rhetorical question “Does that make Wagner untouchable?” Mr Jones uses the name “Wagner” rather than “Wagners”.
[57] [1971] 1 WLR 1239 at 1254.
The natural and ordinary meaning of the words used by Mr Jones is, in my view, sufficient to dispose of the identification issue. The plaintiffs, however, further rely on three pleaded notorious facts particularised in paragraph 11 of the second further amended statement of claim:
“At all times material to this proceeding:
(i)       each of the plaintiffs were known in the community as brothers, as members of the Wagner family and as being involved in a family business known as ‘Wagners’;
(ii)     the ‘community’ referred to in particular (i) comprises people throughout Australia, Queensland and the Toowoomba region;
(iii)     the plaintiffs were known in the community in the sense described in particular (i) above by reason of [numerous publications]”.
These publications extend from May 2002 through to May 2015. For the purposes of the notorious facts pleaded, the plaintiffs may only rely on those publications identifying the plaintiffs as connected to the Wagners’ business prior to the date of the second broadcast, being 29 October 2014. The publications from 2002 to October 2014 were tendered.[58] The plaintiffs submit and I accept that the numerous articles from mainstream press and other periodicals are consistent with Wagners being a family-owned company, with each of the plaintiffs as brothers owning and operating the company.[59] This evidence, according to the plaintiffs, is also consistent with the proposition that each of the plaintiffs are the Wagners, the owners of the quarry, to whom the Second Matter refers.[60] While I accept this submission, in determining the issue of identification it is unnecessary to go beyond the natural and ordinary meaning of the words spoken by Mr Jones, as I have already observed. I accept that the reasonable and ordinary listener would not understand that anyone other than the Wagners were referred to.[61]
[58]    Exhibit 20, TB Vol 1, Tabs 34-70, TB Vol 2, Tabs 71-104.
[59]    Plaintiffs’ Submissions, [120].
[60]    Plaintiffs’ Submissions, [121].
[61]    Plaintiffs’ Submissions, [138].

It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
(a)Orchestrated a disgusting cover-up of his role in the deaths of 19 poor, marginalised people in the Grantham flood disaster, in order to protect his own financial interests; and
(b)was involved in orchestrating a disgusting campaign of vilification, bullying and intimidation, to prevent the truth coming out at the Grantham Floods Inquiry and prevent being held accountable for the deaths of 19 poor, marginalised people in the Grantham flood disaster.[62]
[62] SFASC, paragraph 15.
The plaintiffs do not rely on any extrinsic fact of previous broadcasts in submitting that the Second Matter carried the two pleaded imputations.
The Second and Third Matters complained of were part of the same broadcast on 29 October 2014. The first part of the broadcast consists of a lengthy commentary by Mr Jones in the context of a speech given by Dr Alex Douglas to the Queensland Parliament. In this speech, Dr Douglas called for the establishment of a Royal Commission into what occurred in Grantham in 2011. The second part of the broadcast, which follows on from this commentary and commences at 7.22 am, is an interview conducted by Mr Jones with Mr Cater.
As to imputation (a), this is in similar terms to the imputation which was conveyed by the First Matter. This is unsurprising, as Mr Jones commences the second broadcast by repeating the substance of the first broadcast. The sting of the second imputation is that the plaintiffs were involved in orchestrating a campaign of vilification, bullying and intimidation (as opposed to orchestrating a cover-up).
These imputations are, in my view, conveyed with two insignificant changes. Nowhere is the orchestration of a cover-up referred to in the broadcast as being “disgusting”. The word “disgusting” is used once in the broadcast and only in the context of bullying and intimidation. The words “are disgusting” should be removed from the first imputation. I deal with the second change below.
As to imputation (a), the same reasoning in relation to the First Matter applies. The imputation that the plaintiffs orchestrated a cover-up is even more plainly conveyed by this broadcast than the First Matter. Mr Jones makes numerous references to the fact of a cover-up. He asks “Why was the Grantham cover up orchestrated? Who was being protected?” In this broadcast, however, Mr Jones was more specific as to what is being covered up:
“And I say again, this is all part of the mining invasion. Was this cover up to protect Queensland Gas and its major owner, British Gas? After all, the Grantham quarry which accumulated the water and then the banks burst and a tsunami claimed 19 lives. 17 lost, two other persons never found – presumed dead – on the 10^th January 2011.”
Inexplicably Mr Jones is quite mistaken as to the number of lives lost. Mr Jones then refers to the fact there was no investigation. He again asks, “Why a cover up?” He immediately follows this question with the following statement:
“Well as I said, the quarry was owned by Wagners; they were already in partnership with the Wood Group, the British coal seam gas supply group that works with British Gas. Does that make Wagner untouchable? We’ve been talking about an ARU cover up of the truth in relation to Kurtley Beale, here’s a cover up in relation to the Grantham catastrophe. Why? The answer to both issues is the same: those doing the covering up have a lot to hide.”
As to imputation (b), in the course of the broadcast Mr Jones describes the victims at Grantham by adopting the words of Dr Douglas, who identified the victims as “marginalised” and “mostly poor”. Mr Jones then provides information from a study that found that 90 per cent of all flood deaths in Australia had, in substance, been the result of risk-taking behaviours. He contrasts this statistic with the flood in Grantham, where 70 per cent of those who lost their lives were at home. This difference in the Grantham Flood event is then explained by Mr Jones by reference to an account of Martin Warburton and the opinion of Mr Cater. He quotes Mr Warburton as saying, “…the water was diverted out of Lockyer Creek at the Wagners Sand Plant site right where a dam wall had been constructed across the creek.” It is in this context that Mr Warburton refers to bullying and intimidation which was disgusting when local residents tried to raise the issue regarding “Wagners dam” and its effect. Mr Cater’s opinion, which Mr Jones quotes, is that “there is no doubt in my mind that this was man-made disaster”.
The broadcast concludes with the story of an encounter between Dr Douglas and the local member, Mr Ian Rickuss. This encounter occurred after Dr Douglas had given his speech to Parliament calling for a Royal Commission:
“He was confronted by the local state member, a member of Newman’s team, Ian Rickuss. He came rushing up to Dr Douglas, red-faced and flustered, carrying a pile of books and folders and notes all dog-eared and sticky pads everywhere and he said to Alex Douglas: you need to read this, you didn’t read the Flood Report properly, it was all the Council’s fault – this is the local Council. Dr Douglas said: Ian, I did read the Flood Report very carefully and I do know whose fault it was. Rickuss then changed tack, going from flustered and desperate to hostile. This is a member of the Newman Government, demanding that Alex Douglas withdraw his call for a Royal Commission because some of Rickuss’ best mates may well have been involved in the cover up.”
Mr Jones, in speaking of Mr Warburton’s experiences, makes a number of references to bullying and intimidation:
·“[Mr Warburton] said: the bullying and intimidation I witnessed – he said to me in a letter – and experienced towards those who stood up and asked questions about the event or made comments during the recovery that authorities didn’t agree with, the bullying and the intimidation was disgusting to say the least.”
·“He said: Many locals raised the issue regarding Wagners dam and its effect and several community meetings after the event but the issue was always dismissed by authorities.”
·“He said: I even raised it with several submissions to the Flood Inquiry; it never got a mention. I was never asked about it when I was on the stand giving evidence at the Flood Inquiry.”
The defendants submit that the imputations are not conveyed because the broadcast does not contend that the plaintiffs are responsible for, or knowingly involved in, the orchestration of a cover-up or in a campaign of vilification, bullying and intimidation to prevent the truth of their responsibility for the deaths of people at Grantham from coming out.[63] The defendants further submit in relation to imputation (b) that the reference to the “Grantham Inquiry” is incorrect. I accept that the broadcast in terms refers to the “Flood Inquiry” and imputation (b) should be read as containing a reference to the Queensland Floods Inquiry, rather than the Grantham Floods Inquiry.
[63] Defendants’ Outline of Argument – Part 2, [19].
The defendants submit that the allegations of bullying and intimidation are not directed at the Wagners but rather at the “authorities”. This is said to arise from the words used by Mr Jones that “bullying and intimidation was experienced by those who asked questions or made comments that authorities didn’t agree with” and that the issue (regarding the Wagners’ dam) was always dismissed “by authorities”. This, according to the defendants, makes clear that bullying and intimidation was experienced by those who challenged “the authorities”.[64] This submission, however, ignores the primary thrust of the broadcast in which Mr Jones, using an accusatory tone, alleges that the true cause of the deaths from the Grantham Flood event has been covered up and the truth suppressed, and further, that when residents sought to raise their concerns about the Wagners’ dam, they were bullied and intimidated. These accusations are conveyed as relating to the Wagners, because Mr Jones explains the need for a cover-up by reference to the quarry being owned by Wagners and the bursting of the banks of the quarry as creating a tsunami which claimed 19 lives. He also questions whether Wagner is untouchable. Mr Jones refers to the persons behind the covering-up as those who have a lot to hide. This conveys to the listeners that the Wagners are the persons who have a lot to hide.
[64] Defendants’ Outline of Argument – Part 2, [20].
I determine that the imputations conveyed by the Second Matter are that each of the first, second, third and fourth plaintiffs:
(a)orchestrated a cover-up of his role in the deaths of 19 poor, marginalised people in the Grantham flood disaster, in order to protect his own financial interests;
(b)was involved in orchestrating a disgusting campaign of vilification, bullying and intimidation to prevent the truth coming out at the Queensland Floods Inquiry and prevent being held accountable for the deaths of 19 poor, marginalised people in the Grantham flood disaster.
There is no issue that the imputations conveyed are defamatory.
Third Matter
It is in issue whether the Third Matter is of and concerning the plaintiffs.
As I have already observed, the Second and Third Matters complained of are part of the one broadcast on 29 October 2014. The words spoken in the Second Matter are therefore relevant to the question of identification in respect of the Third Matter. As well as the references to the Wagners in the Second Matter, the Third Matter refers to the Wagners as follows:
·“People who were heavily involved in working with Wagners on the Wellcamp Industrial Estate”
·“Wagners quarry”
·“Wagners dam influence”
For the same reasons given in relation to the Second Matter, the Third Matter was of and concerning the plaintiffs.
It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
(a)caused the deaths of 10 adults and two children by crudely constructing an unauthorised levee on the western boundary of his quarry which burst in two places, resulting in lethal waves of millions of tonnes of water flooding into and devastating the rural town of Grantham;
(bb)in the alternative to (a), caused the deaths of 10 adults and two children when a crudely constructed and unauthorised levee on the western boundary of his quarry burst in two places, resulting in lethal waves of millions of tonnes of water flooding into and devastating the rural town of Grantham; and
(b)conspired with Sinclair Knight Merz to cover up the true cause of the Grantham flood which killed 12 people including two children, namely the collapse of a crudely constructed and unauthorised levee bank at his quarry, resulting in lethal waves of millions of tonnes of water flooding into and devastating the rural town of Grantham.[65]
The first two imputations are in the alternative. The only difference between them is whether the plaintiffs constructed the unauthorised levee. These alternative imputations are alleged to be conveyed by a number of the matters complained of.
[65] SFASC, paragraph 18.
The plaintiffs rely on the following statements by Mr Jones as conveying the first imputation:
·“… the lethal waves that devastated the rural town of Grantham and drowned ten adults and two children originated in a nearby quarry where an artificial levee, less than ten years old, held back millions of tonnes of storm water before bursting in two places.”
·“… since the last significant flood in 1996, an obstacle had been placed in the time‑worn path. A crudely constructed levee, three to five metres in height, now stretched for 380 metres, on the western boundary of Wagners quarry. As the deluge hit the bend at a velocity of some five metres per second the kink in the river acted as a pressure valve while the levee held the water back.”
·“… if a levee bank constructed without official sanction had not collapsed at the Grantham quarry, ten adults and two children who drowned that afternoon would have had a fighting chance.”[66]
[66] Plaintiffs’ Submissions, [151].
The thrust of the interview is a criticism of the findings of the Queensland Floods Inquiry, which Mr Jones notes “found that Grantham was flooded by the natural overflow from Lockyer Creek”. It is evident from the broadcast that neither Mr Jones nor Mr Cater accepts this conclusion. Mr Cater states:
“We have the video, the photographic evidence and, of course, hours and hours of eye witness evidence which I’ve recorded. All points to one thing; it points to a sudden catastrophic influx of water about two metres high which swept through a narrow part of the town – the most densely occupied area. It did not come up from the creek, that was a separate flood earlier.”
Mr Jones endorses this approach having earlier stated:
“Now as you have written, and people have written to me, eye witness accounts supported by several hours of video footage and hundreds of photographs paint a picture completely at odds with the Commission’s finding that Grantham was flooded by the natural overflow from Lockyer Creek.”
In making this statement, Mr Jones gives considerable vocal emphasis to the words “eye witness accounts”, “hours” of video footage, and “hundreds of photographs”. For the ordinary reasonable listener, the alternative scenario to that found by the Queensland Floods Inquiry, namely lethal waves from the collapse of the levee at the Wagners’ quarry, is presented by Mr Jones not as a possible scenario, but rather as a factual assertion of what caused the catastrophic influx of water.
The plaintiffs submit that the ordinary reasonable listener would have understood that it was the Wagners who constructed the levee. While Mr Jones does not explicitly say it, he says the levee is “less than ten years old”, and there is no suggestion that the quarry was owned by anyone other than Wagners. This omission, according to the plaintiffs, would have left the ordinary reasonable listener with the impression that it was the Wagners who constructed the levee. Mr Jones does not suggest in the broadcast that anyone else was responsible for the construction of the levee.[67] The defendants’ primary criticism of the plaintiffs’ pleaded imputations is as follows:
“The listener to a broadcast, particularly a long broadcast covering a number of topics, is likely to pick up on either the general gist of what was said, or alternatively, to become fixed on a short phrase or a few words. It is highly unlikely … that a listener is able to pick apart all of what is said, and reconstruct a complex and composite meaning from it. The plaintiffs have elected not to plead a general meaning and have instead chosen long and, it seems, carefully planned meanings, almost all of which require a piecing together of different aspects of it over time.”[68]
[67] Plaintiffs’ Submissions, [157].
[68] Defendants’ Outline of Argument – Part 2, [35].
According to the defendants, the true story being told by this broadcast focusses not on the owners of the quarry, but on the failure of the Queensland Floods Inquiry to adequately investigate the cause of the deaths of people in Grantham. These alleged failures of the Queensland Floods Inquiry are used by Mr Jones, however, to lead the listener to a different conclusion than that reached by the Inquiry as to what caused the deaths at Grantham. It is apparent from listening to the broadcast that, based on the evidence of eyewitnesses, hours of video, and hundreds of photographs, it was the breach of the levee at the Wagners’ quarry which resulted in “the lethal waves that devastated the rural town of Grantham and drowned ten adults and two children”. While the broadcast does not refer to the levee being “unauthorised”, reference is made to the levee being constructed “without official sanction”. I accept the plaintiffs’ submissions that an ordinary reasonable listener would have gained the impression from the broadcast that it was the Wagners who had constructed the levee.
I therefore find that imputation (a) rather than the alternative imputation (bb) was conveyed.
I have, however, formed a different view in respect of imputation (b), which alleges that the plaintiffs conspired with Sinclair Knight Merz to cover up the true cause of the Grantham flood. This imputation is said to arise from the following exchange between Mr Cater and Mr Jones:
“NICK CATER: … Three people died in that house. So this was an extraordinary event and you’d think that a Flood Commission would go to enormous lengths to find out what happened. But what they did was commission one single hydrology report; that was all. It was by Sinclair Knight Merz, the scientist was Dr Phillip Jordon, he produced his interim report without even visiting Grantham.
ALAN JONES: I’m sorry to interrupt you, but Sinclair Knight Merz have got their hands over everything in Queensland, haven’t they? Aren’t they the people who were heavily involved in working with Wagners on the Wellcamp Industrial Estate – they’re the same people.
NICK CATER: And I think, Alan, we’ve gotta be very careful with this story, how far we go. There may be cover ups, things that have undoubtedly been covered up – I don’t know by who or why. My real concern is just to say let’s start by saying what happened on the day and then we’ll see what flows from that.”
This exchange would not, in my view, have conveyed to an ordinary reasonable listener the pleaded imputation. The exchange makes it clear that it was the Queensland Floods Inquiry that engaged Sinclair Knight Merz. The mere fact that Mr Jones identifies that Sinclair Knight Merz were heavily involved in working with the Wagners on the Wellcamp Industrial Estate does not convey, from a layman’s perspective, any sort of agreement or understanding as between the plaintiffs and Sinclair Knight Merz to cover up the true cause of the Grantham Flood event. A listener would have to be avid for scandal to draw such a long bow.
I therefore find that the Third Matter conveyed imputation (a).
There is no issue that, if conveyed, imputation (a) is defamatory of each of the plaintiffs.
Fifth Matter
The Fifth Matter complained of was broadcast on radio 4BC on 24 February 2015 at approximately 12.52 pm. Attachment 5 to these Reasons is a transcript of the words spoken by Mr Jones.
It is not in dispute that the matter is of and concerning each of the plaintiffs.
It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
(a)knowing that his culpability for the deaths of people in the Grantham flood disaster had been covered up, tried to persuade the Premier that allegations about a cover‑up were a conspiracy theory; and
(b)knowing that his culpability for the deaths of people in the Grantham flood disaster had been covered up, persuaded the Premier that she should put her own self‑interest ahead of assisting the truth to come out, and refuse to appear before a Senate inquiry into the disaster.[69]
[69] SFASC, paragraph 24(a) and (b).
The plaintiffs’ pleaded case is that each of the imputations are conveyed by the natural and ordinary meaning of the words. Alternatively, they allege that the imputations arise by reason of an innuendo meaning, because the audience to whom the broadcast was made would have known of certain facts and thereby would have interpreted the words consistent with the imputations. The facts relied upon are that:[70]
(a)the town of Grantham experienced a flood disaster which resulted in the deaths of many people;
(b)Mr Jones had made frequent and repeated allegations that the plaintiffs were responsible for the Grantham flood disaster and the deaths of many people as a result of the disaster and had attempted to cover up their responsibility for the Grantham flood disaster and the deaths of many people as a result of the disaster;
(c)Mr Jones’ previous allegations were made:
(i)       in the First, Second and Third Matters complained of; and
(ii)      by him on his program on 13 October 2014 (commencing at about 7.16 am) and on the “Alan Jones Comments of the Day Program” on radio 4GR on 16 October 2014 (commencing at about 1:51pm); and
(d)a further inquiry into the Grantham flood disaster had been announced by the Queensland Government.
[70]    SFASC, paragraph 24, Particulars of extrinsic facts.

Well lawyer Holt said in early July, his clients didn't accept the finding, given the quarry wall's size and location. He told Commissioner Soffronoff: the suggestion that that didn't have - that's the quarry - a substantial impact on the behaviour of the floodwaters is something that at least, on its face, may not pass the sanity test. Lawyer Tim Tobin representing victims went further in July to the Soffronoff Commission of Inquiry saying the quarry wall burst, sending a large influx of water into Grantham, which caused an increase in damage and made it lethal on that date.
Saul Holt QC, for some of the victims said the survivors had felt ignored, confused and patronised. A lawyer for the Wagners at the same time said the quarry had no material impact on the flooding. Its existence - that is the quarry - did not cause or materially contribute to the flooding in Grantham, which was inevitable, based on the magnitude of the flooding, inevitable that 12 people would be killed. There have been floods of that kind in Grantham before, no one died.
But here was this wall, massive wall - it shouldn’t have been built - illegal. The water, water, building up, billions of litres of water, the wall cracks goes whoosh, bang, nowhere to go, heads towards the railway line, nowhere to go, but the wall, the water wouldn't have been near the railway line if it hadn't been banked up behind the quarry wall.
We've had similar floods in Grantham, of the same dimension, no one lost their life. But of course, the defence that the wall didn't contribute to the flooding reminded me of Mandy Rice-Davies, way back in the 60s, in the famous Profumo affair, when she said oh Profumo, well he would say that, wouldn't he. And they would say that.

Attachment 34
Thirty-fourth matter - broadcast on 20 August 2015 (at about 7:42 am)
ALAN JONES: Now, you will recall last week, the [indistinct] at Grantham that was all this hoopla about a hydrologist's report. Oh, and the railway line was the fault - not the water building up behind the quarry wall. The report was by a civil engineer, Dr John Macintosh. Which supposedly, if you believe the headlines last week, as I said, it didn't pass the sanity test. Cleared the Wagner quarry of all responsibility for creating or exacerbating the devastating four to six metre surge, which killed 12 people.
Well, Dr Macintosh's has had to spend three days in the witness box, at the Grantham inquiry, answering questions about his report. And if nothing else, the questioning has clearly established the danger of building levy levee banks beside a quarry pit.
Remember, Queensland's Water Resources Commission, gave permission for the construction of the quarry in 1989, on the condition that quote over-burden was quote not stockpiled so as to form a levy levee bank. It was stockpiled. That was illegal. Unarguable.
Many believe that's exactly what was happening during the construction of the Wagner quarry. Dr Macintosh yesterday claimed the Grantham flood's fatal surge would have occurred regardless of the existence of the Wagner quarry. But the fact is that Grantham had floods like this in the past - no one's ever died.
He later conceded the quarry embankments were responsible for raising Lockyer Creek water levels 20 centimetres for at least 2 kilometres. He said the general issue of unregulated levy levee banks, it is an issue. This is Macintosh, the bloke who did the hydrology report. It does make a difference. It has caused - and will probably continue to cause - grief. Like all things, if you're not careful, you put in a levee bank to solve one problem, and you can cause another. Precisely, Dr Macintosh.
Which makes me wonder how you reach the conclusion in the first place that it was the railway line not the levee bank. The inquiry continues.

Attachment 35
Imputations Conveyed

SFASOC Paragraph Number	Matter Complained Of	Imputation
12(a)	1	That each of the first, second, third and fourth plaintiffs 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.
12(b)	1	That each of the first, second, third and fourth plaintiffs 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.
15(a) as amended in these reasons	2	That each of the first, second, third and fourth plaintiffs orchestrated a cover-up of his role in the deaths of 19 poor, marginalised people in the Grantham flood disaster, in order to protect his own financial interests.
15(b) as amended in these reasons	2	That each of the first, second, third and fourth plaintiffs was involved in orchestrating a disgusting campaign of vilification, bullying and intimidation to prevent the truth coming out at the Queensland Floods Inquiry and prevent being held accountable for the deaths of 19 poor, marginalised people in the Grantham flood disaster.
18(a)	3	That each of the first, second, third and fourth plaintiffs caused the deaths of ten adults and two children by crudely constructing an unauthorised levee on the western boundary of his quarry which burst in two places, resulting in lethal waves of millions of tonnes of water flooding into and devastating the rural town of Grantham.
24(a)	5	That each of the first, second, third and fourth plaintiffs, knowing that his culpability for the deaths of people in the Grantham flood disaster had been covered up, tried to persuade the Premier that allegations about a cover-up were a conspiracy theory.
24(b)	5	That each of the first, second, third and fourth plaintiffs, knowing that his culpability for the deaths of people in the Grantham flood disaster had been covered up, persuaded the Premier that she should put her own self-interest ahead of assisting the truth to come out, and refuse to appear before a Senate inquiry into the disaster.
28(a)	6	That each of the first, second, third and fourth plaintiffs was a corrupt businessmen in that he was able to build an airport in breach of all laws by reason of his connections with the Premier, Campbell Newman and other officials in local government and state government.
28(b)	6	That each of the first, second, third and fourth plaintiffs had constructed an airport in Toowoomba and had broken all the rules in the construction of the airport.
31(a)	7	That each of the first, second, third and fourth plaintiffs caused the deaths of 13 people by illegally constructing a dam wall across Lockyer Creek which collapsed, releasing a tsunami-like wall of water that engulfed Grantham.
31(c)	7	That each of the first, second, third and fourth plaintiffs was knowingly involved in a massive cover-up of the cause of the Grantham flood disaster, in order to protect himself from being held to account for the deaths of 13 people in the disaster.
31(d) as amended in these reasons	7	That each of the first, second, third and fourth plaintiffs was involved in disgusting bullying and intimidation of witnesses at the Queensland Floods Inquiry, in order to protect himself from being held to account for the deaths of 13 people in the Grantham flood disaster.
34(a)	8	That each of the first, second, third and fourth plaintiffs caused the deaths of 12 people by constructing a dam at his quarry across Lockyer Creek which collapsed under the weight of water, causing the Grantham flood.
37(a)	9	That each of the first, second, third and fourth plaintiffs caused the deaths of 12 people by constructing a wall at his quarry that burst, unleashing a veritable tsunami causing the 2011 Grantham flood which deaths could have been completely avoided had he not constructed the wall.
37(b)	9	That each of the first, second, third and fourth plaintiffs callously refused to admit to his legal liability for the deaths of 12 people in the Grantham flood disaster, when a man-made wall at his quarry burst, causing a veritable tsunami that killed 12 people.
37(c)	9	That each of the first, second, third and fourth plaintiffs sold his quarry in order to attempt to evade his legal liability for causing the deaths of 12 people in the Grantham flood disaster.
37(d)	9	That each of the first, second, third and fourth plaintiffs lied publicly in claiming that the embankment at his quarry was part of the natural landscape rather than being man-made, in order to evade his legal liability for the deaths of 12 people after the embankment collapsed.
37(e)	9	That each of the first, second, third and fourth plaintiffs was a callous and selfish person in that he built an airport without an environmental impact statement, a health impact statement, a community impact statement, a water impact statement, and without any compensation for people living in hopeless proximity to the airport.
40(a)	10	That each of the first, second, third and fourth plaintiffs built an airport without seeking proper approvals which he knew were required with disgraceful disregard for the interests of the community.
40(b)	10	That each of the first, second, third and fourth plaintiffs caused the deaths of 12 people by constructing a massive wall at his quarry that collapsed under the weight of water, unleashing a tsunami, in the 2011 Grantham flood.
40(c)	10	That each of the first, second, third and fourth plaintiffs has engaged in a cover-up of his culpability for the deaths of 12 people in the 2011 Grantham flood, thereby denying the prospect of justice for the still grieving townspeople of Grantham.
40(d)	10	That each of the first, second, third and fourth plaintiffs told a disgraceful lie by stating that a massive wall that he constructed at his quarry, and which collapsed unleashing the tsunami that caused the 2011 Grantham flood that killed 12 people, was part of the natural landscape.
43(a)	11	That each of the first, second, third and fourth plaintiffs dishonestly tried to get away with building an airport in Toowoomba without seeking proper approvals from the Toowoomba Regional Council, because he knew the Council was gutless and the state government was on side, letting him walk over the community.
43(b)	11	That each of the first, second, third and fourth plaintiffs built the infamous Wellcamp Airport in disregard of the interests of the community without first obtaining, as he was required to do, an environmental impact statement, a health impact statement, a community impact statement or a water impact statement, or paying the compensation owing to those adversely affected because they lived in close proximity to the airport.
43(c)	11	That each of the first, second, third and fourth plaintiffs caused the deaths of 12 people by constructing a massive wall at his quarry that collapsed under the weight of water, causing the 2011 Grantham flood.
43(d)	11	That each of the first, second, third and fourth plaintiffs told a disgraceful lie by stating that a massive wall that he constructed at his quarry, and which collapsed, causing the 2011 Grantham flood that killed 12 people, was part of the natural landscape.
43(e)	11	That each of the first, second, third and fourth plaintiffs engaged in a cover-up of his culpability for the deaths of 12 people in the 2011 Grantham flood, thereby denying the prospect of justice for the still grieving townspeople of Grantham.
52(a)	14	That each of the first, second, third and fourth plaintiffs caused the deaths of 12 people by constructing a dam wall in a designated water course which collapsed, causing the 2011 Grantham flood.
52(b)	14	That each of the first, second, third and fourth plaintiffs in concert with others, conspired in a disgraceful cover-up of his culpability for the deaths of 12 people in the 2011 Grantham flood.
52(c)	14	That each of the first, second, third and fourth plaintiffs bullied and intimidated persons who tried to expose the fact that the collapse of a dam wall at his quarry was the cause of the deaths of 12 people in the Grantham flood disaster.
55	15	That each of the first, second, third and fourth plaintiffs conspired with the Deputy Prime Minister, Warren Truss, and a prominent member of the government, Barnaby Joyce, to cover-up his culpability for the deaths of people in the Grantham flood disaster.
57	16	That the second plaintiff conspired with the Deputy Prime Minister of Australia, Warren Truss, and a prominent member of the government, Barnaby Joyce, to cover up his culpability for the deaths of people in the Grantham flood disaster.
60(a)	17	That each of the first, second, third and fourth plaintiffs in concert with the Bligh and Newman Governments 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.
60(b)	17	That each of the first, second, third and fourth plaintiffs terrorised and vilified two ordinary people, Heather Brown and David Pascoe, forcing them to change address and live in fear, because they threatened to expose the truth about his involvement in the horrific flooding of the town of Grantham and the deaths of a number of people, including a baby.
63(a)	18	That each of the first, second, third and fourth plaintiffs is a person who knows only two things: self-interest and bullying.
63(b)	18	That each of the first, second, third and fourth plaintiffs, for his own selfish and greedy purposes, stole airspace above the Oakey Army Base, which will destroy the Oakey Army Base, which trains helicopter pilots, and harm the national defence interest.
63(c)	18	That each of the first, second, third and fourth plaintiffs is a monumental hypocrite, in that he went to Canberra to talk to his mate Ian Macfarlane to stop the destruction of the Borneo Barracks on the ground that they are important for defence, when he is responsible for destroying the Oakey defence base for his own selfish, greedy purposes.
68	19	That each of the first, second, third and fourth plaintiffs built a wall at his quarry by illegally leaving overburden on the site, which broke, causing a tsunami that caused the death of people in the Grantham flood disaster.
71(a)	20	That each of the first, second, third and fourth plaintiffs was running for cover because his liability for the deaths of people in the Grantham flood disaster, after the wall at his quarry broke causing a tsunami, was likely to be exposed by the Grantham inquiry.
71(b)	20	That each of the first, second, third and fourth plaintiffs was trying to cover up the fact that he had either built an illegal wall at his quarry, which burst and caused a tsunami which killed people in the Grantham flood disaster, or had his mates change the rules, which allowed the wall to be built.
73(a)	21	That each of the first, second, third and fourth plaintiffs conspired with Barnaby Joyce and Warren Truss, the National Party Leader, to cover up his culpability for the deaths of people in the Grantham flood disaster.
73(b)	21	That each of the first, second, third and fourth plaintiffs conspired with Warren Truss, the National Party leader, Ian McFarlane, the Energy Minister, and a prominent member of the government, Barnaby Joyce, to cooperate in protecting each other from the exposure of their misappropriations of federal money and illegal deals.
73(c)	21	That each of the first, second, third and fourth plaintiffs illegally obtained a national asset, the airspace over the Oakey military base, for use at his private airport.
80(a)	23	That each of the first, second, third and fourth plaintiffs behaved disgracefully by building an airport in Toowoomba without seeking proper legal approvals and then taking a national asset, the airspace over Oakey, without making any payment for it.
80(b)	23	That each of the first, second, third and fourth plaintiffs in breach of a condition on his right to mine his quarry at Grantham, built a massive wall from stockpiled overburden that collapsed, causing the Grantham flood that killed 12 people.
80(c)	23	That each of the first, second, third and fourth plaintiffs told a disgraceful lie by stating that an embankment at his quarry that collapsed, causing the deaths of 12 people in the 2011 Grantham flood, was part of the natural landscape, when he well knew that he had built it from stockpiled overburden in breach of a condition of his right to mine the quarry.
80(d)	23	That each of the first, second, third and fourth plaintiffs sold his quarry to Boral, in an effort to cover up his culpability for killing 12 people in the Grantham flood disaster.
86(a)	25	That each of the first, second, third and fourth plaintiffs was a disgusting and disgraceful person who had tried to evade his responsibility for the deaths of people in the Grantham flood disaster, but who was now finally being exposed by ordinary tough, brave, courageous Australians.
86(b)	25	That each of the first, second, third and fourth plaintiffs caused the Grantham flood by building a huge wall, three times higher than a truck, around his quarry, which collapsed, causing water to smash houses to bits and a shed to explode.
86(c)	25	That each of the first, second, third and fourth plaintiffs told a disgraceful lie by stating that a wall on his quarry that burst, causing water to smash houses to bits and a shed to explode, was a natural feature of the landscape, when he well knew that it was a man-made structure.
88	26	That the second plaintiff conspired with Warren Truss, the Deputy Prime Minister of Australia, and other federal ministers, that they would cooperate together to cover up his culpability for the deaths of people in the Grantham flood disaster.
91(a)	27	That each of the first, second, third and fourth plaintiffs is a person who thought he could get away with building an airport at Toowoomba without seeking proper approvals, and without having to pay for a national asset, the airspace over Oakey.
91(b)	27	That each of the first, second, third and fourth plaintiffs, by reason of his corrupt relationship with the Coalition in Queensland and Canberra, was able to buy the airport at Toowoomba without seeking the required approvals and were then gifted Oakey airspace, which is a valuable national asset.
91(c)	27	That each of the first, second, third and fourth plaintiffs caused the deaths of 12 people by stockpiling overburden at his quarry so as to form a levee bank, in breach of a condition of the right to mine the quarry, which collapsed causing the Grantham flood.
91(d)	27	That each of the first, second, third and fourth plaintiffs told a disgraceful lie by stating that a wall alongside his quarry that collapsed, causing the Grantham flood and killing 12 people, was part of the natural landscape, when he well knew that it had in fact been constructed from a stockpile of overburden in breach of a condition of the right to mine the quarry.
91(e)	27	That each of the first, second, third and fourth plaintiffs sold his quarry to Boral in an effort to cover up his legal culpability for the horrific deaths of 12 people in the Grantham flood disaster.
91(f)	27	That each of the first, second, third and fourth plaintiffs disgracefully instructed the barrister appearing for him at the Grantham flood inquiry to bully a local resident, Ian Pinkerton, while cross-examining him as he gave evidence about the torment he and his family suffered during the fatal floods that hit the Lockyer Valley in 2011.
91(g)	27	That each of the first, second, third and fourth plaintiffs has, for years, bullied and intimidated tough, brave and courageous victims of the 2011 Grantham flood in order to shut them up and cover up his culpability for causing the flood and the deaths of 12 people.
92	27	That the first plaintiff was a selfish coward for not simply admitting to his liability for the deaths of 12 people in the Grantham flood disaster.
93B(a)	28	That each of the first, second, third and fourth plaintiffs attempted to cover up his culpability for causing the deadly Grantham flood by pulling down a wall at his quarry straight after the flood and removing the material, which was full of big chunks of heavy rocks and cement, on the back of trucks.
93B(b)	28	That each of the first, second, third and fourth plaintiffs told a disgraceful lie by stating that the wall at his quarry that caused the deadly Grantham flood was a natural feature of the landscape, when he well knew it was in fact a man-made wall that was built from big chunks of heavy rocks and cement.
94	28	That the first plaintiff engaged in a disgraceful and bizarre attempt to bully and intimidate a victim of the deadly Grantham flood, Ian Pinkerton, and to escape scrutiny for his culpability in causing the flood, by driving to Pinkerton’s house after the flood inquiry had adjourned, getting out of his car, and standing and staring at Pinkerton’s home.
95B(a)	29	That each of the first, second, third and fourth plaintiffs caused the disastrous 2011 Grantham flood by building a massive wall at his quarry that collapsed, sending water cannoning north east and down to Grantham.
95B(b)	29	That each of the first, second, third and fourth plaintiffs told a disgraceful lie by stating that the massive wall at his quarry that caused the disastrous 2011 Grantham flood was already there when he bought the quarry, when he well knew that he had built the wall from rubbish at the quarry over a period of years.
96	29	That the first plaintiff attempted to bully and intimidate a victim of the disastrous 2011 Grantham flood, Ian Pinkerton, by pulling up outside Pinkerton’s house after he had given evidence to the flood inquiry, getting out of his car, and standing and staring at Pinkerton’s home.
99(a)	30	That each of the first, second, third and fourth plaintiffs was a selfish, insensitive grub for having lied about the fact that the collapse of an illegal levee bank at his quarry was the cause of the flood that caused the horrific deaths of 12 people in the Grantham flood disaster.
99(b)	30	That each of the first, second, third and fourth plaintiffs is a selfish, insensitive grub who falsely claimed to have suffered in the Grantham floods in which 12 people died.
99(c)	30	That each of the first, second, third and fourth plaintiffs in concert with politicians, big business and the police, engaged in a cover up of his culpability for the Grantham flood in which 12 people died.
100(a)	30	That the first plaintiff while giving evidence at the Grantham flood inquiry, was forced to admit that he had previously lied about dumping overburden along the side of the creek at his quarry contrary to the conditions allowing him to mine the quarry, about knowing that overburden had been so dumped, and about dumping overburden under power lines.
100(b)	30	That the first plaintiff disgracefully claimed that victims of the Grantham flood had told false stories under oath at the flood inquiry.
100A	30	That the second plaintiff hosted a dinner for the state conference of Agforce in Queensland, with the intention of getting into bed with farmers and getting Agforce to sell out so that he can plunder the agricultural resources that Agforce is meant to be defending.
102	31	That each of the first, second, third and fourth plaintiffs was knowingly involved in a scandalous cover-up of the role that his quarry played in the deaths of people in the Grantham flood disaster, a cover-up that resulted in an appalling injustice.
102A	31	That the first plaintiff, while giving evidence at the Grantham flood inquiry, was forced to admit that he had previously lied about overburden having been dumped on the western side of his quarry near Lockyer Creek.
105(a)	32	That each of the first, second, third and fourth plaintiffs caused the Grantham flood that killed 13 people on 10 January 2011 by constructing a massive wall at his quarry, which enabled a huge build-up of flood water upstream of the wall, which in turn destroyed the wall, sending a wall of water at a speed and rate of rise that was phenomenal through the flood plain area of Grantham.
105(b) as amended in these reasons	32	That each of the first, second, third and fourth plaintiffs attempted to cover up his culpability for causing the Grantham flood that killed 13 people on 10 January 2011 by removing large sections of an embankment on the northern side of his quarry in May 2011.
105(c)	32	That each of the first, second, third and fourth plaintiffs engaged in a sinister cover up of his culpability for causing the Grantham flood that killed 13 people on 10 January 2011, by attempting to intimidate a journalist and confiscate photographic evidence.
105A	32	That the first plaintiff, while giving evidence at the Grantham flood inquiry, was forced to admit that he had previously lied about the embankment at his quarry that exacerbated the 2011 Grantham flood being part of the natural landscape.
108(a)	33	That each of the first, second, third and fourth plaintiffs caused the lethal Grantham flood by constructing a massive, illegally built, wall at his quarry which burst, sending billions of litres of water into Grantham.
111(a)	34	That each of the first, second, third and fourth plaintiffs illegally constructed a massive levee bank at his quarry.
111(b)	34	That each of the first, second, third and fourth plaintiffs caused the deaths of 12 people in the Grantham flood, by constructing an illegal, massive levee bank at his quarry that created or exacerbated a devastating and fatal four to six metre surge of flood water.

CITATION:	Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201
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/S:	No 10830 of 2015
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 September 2018
DELIVERED AT:	Brisbane
HEARING DATES:	30 April-4 May, 8-11 May, 14-15 May, 17-18 May, 21‑25 May, 28-30 May, 13-14 June 2018. Further written submissions 15 June 2018.
JUDGE:	Flanagan J
ORDERS:	*(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 $78,102.74 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 2018. *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 $10,643.84 for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April 2018. *Injunction* 3. The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published: (a) 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 (b) 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) 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 (b) 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: (a) 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 (b) 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. *(b) Second Plaintiff* *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 $78,102.74 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 2018. *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 $10,643.84 for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April 2018. *Injunction* 8. The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published: (a) 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 (b) 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. 9. The second defendant is permanently restrained, by himself and/or his servants or agents, from publishing or causing to be published: (a) 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 (b) 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) 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 (b) 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. *(c) Third Plaintiff* *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 $78,102.74 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 2018. *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 $10,643.84 for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April 2018. *Injunction* 13. The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published: (a) 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 (b) 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) 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 (b) 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) 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 (b) 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. *(d) Fourth Plaintiff* *As against the first defendant and second defendant* 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 $78,102.74 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 2018. *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 $10,643.84 for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April 2018. *Injunction* 18. The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published: (a) 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 (b) 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) 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 (b) 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. 20. The third defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published: (a) 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 (b) 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.
CATCHWORDS:	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 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] 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 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:	TD Blackburn SC with PJ McCafferty for the plaintiffs RJ Anderson QC with R De Luchi for the defendants
SOLICITORS:	Corrs Chambers Westgarth for the plaintiffs Banki Haddock Fiora for the defendants