Wagner v Nine Network Australia - [2019] QSC 61

SUPREME COURT OF QUEENSLAND

CITATION:

Wagner & Ors v Nine Network Australia & Ors [2019] QSC 61

PARTIES:

DENIS WAGNER

(first plaintiff)
JOHN WAGNER
(second plaintiff)
NEILL WAGNER
(third plaintiff)
JOE WAGNER
(fourth plaintiff)

v
NINE NETWORK AUSTRALIA PTY LTD
(ACN 008 685 407)

TCN CHANNEL NINE PTY LTD
(ACN 001 549 560)(first defendant)

QUEENSLAND TELEVISION LIMITED
(ACN 009 674 373)(second defendant)

WIN TELEVISION QLD PTY LTD
(ACN 009 697 198)(third defendant)

NINEMSN PTY LTD
(ACN 077 753 461)(fourth defendant)

NICHOLAS CHARLES CATER(fifth defendant)

(sixth defendant)

FILE NO:

11789 of 2015

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

15 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2019 (Supervised Case Review)

JUDGE:

Applegarth J

ORDER:

The jury trial proceed generally in accordance with the defendants’ trial plan

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – TRIAL – FUNCTIONS OF JUDGE AND JURY – IN GENERAL – where the plaintiffs brought a defamation action – where the only issue for the jury is whether the broadcast conveyed the imputations pleaded by the plaintiff – where the plaintiffs and defendants propose competing trial plans - where the plaintiffs propose that the jury be present for all the evidence in the plaintiffs’ case – where the defendants propose that the jury be present for only a directed opening to the jury, the playing of the broadcast and the parties’ submissions about whether or not the pleaded imputations were conveyed – whether the plaintiffs’ or the defendants’ trial plan should be adopted

Defamation Act 2005 (Qld) s 22
Defamation Act 1974 (NSW) s 7A

Evans v Davies [1991] 2 Qd R 498 cited
John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291; [2007] HCA 28 cited
John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; (2003) 201 ALR 77; [2003] HCA 50 cited
Watney v Kencian [2018] 1 Qd R 407; [2017] QCA 116 cited

COUNSEL:

T D Blackburn SC with P J McCafferty QC for the plaintiffs
R J Anderson QC for the defendants

SOLICITORS:

Corrs Chambers Westgarth for the plaintiffs
Mark O’Brien Legal for the defendants

The parties have asked me to decide a procedural issue about the course of evidence at a jury trial over which I will preside in September.
The issues in the proceeding
The plaintiffs sue for defamation over a 60 Minutes broadcast and a related internet publication. The only issue for the jury is whether the broadcast (and the identical internet publication) conveyed one or more of the three pleaded imputations, or an imputation which is not substantially different. If it did, then there is no issue that the imputation was defamatory. There are no substantive defences. Once the jury decides whether or not one or more of the imputations was conveyed, its task will be complete. The assessment of damages is the function of the trial judge, not the jury.[1]
[1] Defamation Act 2005 (Qld), s…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Wagner v Nine Network Australia

Details

AGLC: Wagner v Nine Network Australia [2019] QSC 61
Case: [2019] QSC 61
Decision Date: 15 March 2019

CaseChat Overview and Summary

The matter in Wagner v Nine Network Australia involved a defamation action brought by the plaintiffs against the defendants. The only issue for the jury was whether the broadcast conveyed the imputations pleaded by the plaintiff. Both parties proposed competing trial plans, with the plaintiffs suggesting that the jury be present for all the evidence in their case and the defendants proposing that the jury be present for only a directed opening, the playing of the broadcast, and the parties' submissions about whether or not the pleaded imputations were conveyed.

The court was required to decide which trial plan should be adopted, considering the risk of the jury being distracted by irrelevant evidence and the efficiency of the trial. The court determined that the preferable course was for the jury to not hear irrelevant evidence, rather than hear irrelevant evidence and then be directed in the summing up to disregard it. The court favoured the defendants' trial plan, as it simplified and expedited the jury's determination and avoided the jury having to hear evidence that was irrelevant and distracting.

The court directed that the parties prepare an agreed statement to be read to the jury at the start of the trial and that the parties confer about the way in which the evidence, particularly the broadcast and the internet publication, is prepared for presentation to the jury. The jury trial was to proceed generally in accordance with the defendants' trial plan.

Orders

Orders of the court

The jury trial proceed generally in accordance with the defendants’ trial plan

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The course proposed by the plaintiffs carries the risk of the jury being distracted by irrelevant evidence, for example, evidence given by a plaintiff about how he reacted to the broadcast, being evidence which would at least implicitly communicate the meaning which the plaintiff attributed to the broadcast. Of course, the meaning or meanings which the plaintiffs attributed to the broadcast is irrelevant to the issue of the meaning which an ordinary, reasonable listener would have understood the broadcast to convey. The risk of the jury being distracted by irrelevant evidence should be avoided. The preferable course is for the jury to not hear irrelevant evidence, rather than hear irrelevant evidence and then to be directed in the summing up to disregard it.Conclusion If the defendants’ proposed trial plan is adopted, and if the jury finds that the pleaded imputations (or substantially similar imputations) were not conveyed, then the trial will finish in about a day. There will be savings to the administration of justice. Members of the jury will not be required to spend longer than they should in court. The concerns advanced by the plaintiffs about the jury misunderstanding its task and arriving at a perverse verdict can be addressed by informing the jury about the issues in the trial and that it is only required to decide the threshold issue of meaning. The course which the plaintiffs propose carries the real risk of the jury wondering why it is required to spend days hearing evidence that is irrelevant to the sole issue it has to decide. The jury should not be unnecessarily distracted by evidence that is irrelevant to its function. The course proposed by the defendants simplifies and expedites the jury’s determination. It has obvious advantages and avoids the jury having to hear evidence which is irrelevant and distracting. For these reasons I favour the defendants’ trial plan.Other matters In accordance with Practice Direction No 1 of 2012, the parties should prepare an agreed statement to be read to the jury at the start of the trial. The Practice Direction contemplates the agreed statement being submitted to the trial judge at least three working days before the commencement of the trial. However, there is no reason why the statement should not be prepared and settled by me, if necessary, much sooner than that because the identity of the trial judge is known. I direct that the agreed statement be submitted to my Associate by 4 pm on 1 May 2019. If the parties are unable to agree on the statement then their drafts should be submitted to my Associate by the same date and the matter will be reviewed on a date to be fixed. I also direct, consistent with the Practice Direction and my observations at the last review, that the parties confer about the way in which the evidence, particularly the broadcast and the internet publication, is prepared for presentation to the jury. The parties’ legal representatives should confer with court officers about the necessary technology for the evidence to be presented in Court and considered by the jury during its deliberations.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wagner & Ors v Nine Network Australia & Ors [2019] QSC 61
PARTIES:	DENIS WAGNER (first plaintiff) JOHN WAGNER (second plaintiff) NEILL WAGNER (third plaintiff) JOE WAGNER (fourth plaintiff) v NINE NETWORK AUSTRALIA PTY LTD (ACN 008 685 407) TCN CHANNEL NINE PTY LTD (ACN 001 549 560)(first defendant) QUEENSLAND TELEVISION LIMITED (ACN 009 674 373)(second defendant) WIN TELEVISION QLD PTY LTD (ACN 009 697 198)(third defendant) NINEMSN PTY LTD (ACN 077 753 461)(fourth defendant) NICHOLAS CHARLES CATER(fifth defendant) (sixth defendant)
FILE NO:	11789 of 2015
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	15 March 2019
DELIVERED AT:	Brisbane
HEARING DATE:	13 February 2019 (Supervised Case Review)
JUDGE:	Applegarth J
ORDER:	The jury trial proceed generally in accordance with the defendants’ trial plan
CATCHWORDS:	DEFAMATION – ACTIONS FOR DEFAMATION – TRIAL – FUNCTIONS OF JUDGE AND JURY – IN GENERAL – where the plaintiffs brought a defamation action – where the only issue for the jury is whether the broadcast conveyed the imputations pleaded by the plaintiff – where the plaintiffs and defendants propose competing trial plans - where the plaintiffs propose that the jury be present for all the evidence in the plaintiffs’ case – where the defendants propose that the jury be present for only a directed opening to the jury, the playing of the broadcast and the parties’ submissions about whether or not the pleaded imputations were conveyed – whether the plaintiffs’ or the defendants’ trial plan should be adopted Defamation Act 2005 (Qld) s 22 Defamation Act 1974 (NSW) s 7A Evans v Davies [1991] 2 Qd R 498 cited John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291; [2007] HCA 28 cited John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; (2003) 201 ALR 77; [2003] HCA 50 cited Watney v Kencian [2018] 1 Qd R 407; [2017] QCA 116 cited
COUNSEL:	T D Blackburn SC with P J McCafferty QC for the plaintiffs R J Anderson QC for the defendants
SOLICITORS:	Corrs Chambers Westgarth for the plaintiffs Mark O’Brien Legal for the defendants