Wagner v Nine Network Australia

Case [2016] QSC 87

SUPREME COURT OF QUEENSLAND

CITATION:

Wagner & Ors v Nine Network Australia & Ors [2016] QSC 87

PARTIES:

DENIS WAGNER

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

v
NINE NETWORK AUSTRALIA
(ACN 008 685 407)
(first defendant)
TCN CHANNEL NINE PTY LTD
(ACN 001 549 560)
(second defendant)
QUEENSLAND TELEVISION LIMITED
(ACN 009 674 373)
(third defendant)
WIN TELEVISION QLD PTY LTD
(ACN 009 697 198)
(fourth defendant)
NINEMSN PTY LTD
(ACN 077 753 461)
(fifth defendant)
NICHOLAS CHARLES CATER)

(sixth defendant)

FILE NO/S:

Brisbane No 11789 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

14 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2016

JUDGE:

Boddice J

ORDER:

I shall hear the parties as to the form of the orders, and as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – OTHER CASES AND MATTERS – where the plaintiffs claim damages for defamation arising out of a programme broadcast by the defendants regarding the 2011 Grantham floods – where the plaintiffs allege that the defendants’ broadcast included imputations that the plaintiffs were “responsible” for the 2011 Grantham flood – where defendants seek to have the imputations struck out – whether “responsible” is ambiguous in the circumstances – whether the imputations are so clearly incapable of arising as to warrant an order striking them out

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – PARTICULARS – FURTHER AND BETTER – where the plaintiffs allege that they are each part of the “Wagners” business and are well-known within the “community” – where the plaintiffs allege that the defendants’ broadcast was reasonably understood to refer to each of them – where the plaintiffs allege that the sixth defendant had a certain state of mind in giving an interview that formed part of the broadcast – where the defendants seek further better and better particulars of these allegations contained in the statement of claim – whether the particulars requested are necessary in order to apprise the defendants of the case they are to meet at trial

Favell v Queensland Newspapers Pty Ltd [2004] QCA 135, cited
Harvey v Commonwealth Scientific and Industrial Research Organisations [2000] 2 Qd R 594; [1999] QSC 191, applied
Hughes v Mirror Newspapers Pty Ltd (1985) 3 NSWLR 504, distinguished
Palmer v Nationwide News Pty Ltd [2014] QSC 174, cited

Queensland Newspapers Pty Ltd v Palmer[2012] 2 Qd R 139; [2011] QCA 286, cited

Uniform Civil Procedure Rules 1999 (Qld), rr 150, 157

COUNSEL:

PJ McCafferty for the plaintiffs

RJ Anderson QC for the defendants

SOLICITORS:

Corrs Chambers Westgarth for the plaintiffs

Mark O’Brien Legal for the defendants

  1. The defendants apply to strike out the pleaded imputations in paragraphs 18 and 19 of the plaintiffs’ statement of claim in respect of a claim for damages for defamation.  The defendants also seek particulars of paragraphs…

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AGLC
Wagner v Nine Network Australia [2016] QSC 87
Case
[2016] QSC 87
Decision Date

CaseChat Overview and Summary

The case of Wagner v Nine Network Australia involves a defamation claim brought by the plaintiffs against the defendants, who are media organisations and a journalist, arising from a broadcast concerning the 2011 Grantham floods. The plaintiffs, who are brothers and members of the Wagner family business, allege that the broadcast defamed them by implying they were responsible for the flood. The defendants sought to strike out certain imputations and requested further particulars regarding various allegations in the plaintiffs' statement of claim.

The legal issues before the court were whether the imputations in the broadcast were so clearly incapable of arising as to warrant striking them out, and whether the particulars requested by the defendants were necessary for them to understand the case they need to meet at trial. The court had to determine if the broadcast, in its natural and ordinary meaning, meant that each plaintiff was responsible for the flood and attempted to hide that responsibility, and if the particulars requested were necessary to apprise the defendants of the case to be met at trial.

The court found that paragraphs 18 and 19 of the statement of claim should be struck out, with liberty to replead. The court held that the imputations were ambiguous in the circumstances, and therefore, not so clearly incapable of arising as to warrant striking them out. However, the defendants were entitled to particulars of paragraphs 1, 2, 3, 4, 5, 20, and 21 of the statement of claim, as it was necessary for them to understand the case they needed to meet at trial. The court concluded that the defendants were entitled to know the facts, matters, and circumstances relied upon by the plaintiffs to establish the pleaded states of mind.

The court will hear the parties as to the form of orders and costs.

Orders

Orders of the court

I shall hear the parties as to the form of the orders, and as to costs.

Background

Background to the litigation

At issue is whether: the pleaded imputations are so clearly incapable of arising as to warrant an order striking them out; and the particulars requested are necessary in order to apprise the defendants of the case they are to meet at trial. Background On 24 May 2015, there was broadcast an edition of the 60 Minutes television programme. That broadcast was also uploaded to the internet. Five of the defendants are media organisations alleged to have published that broadcast. The sixth defendant is a journalist whose interview formed part of that broadcast. The 60 Minutes programme dealt with events surrounding the flooding of the township of Grantham in January 2011. Some 12 lives were lost. The circumstances of that flood had been the subject of a Commission of Inquiry. The broadcast raised criticisms of the findings of that Inquiry and allegations that the circumstances of the flooding of Grantham had not been the subject of a proper investigation. A feature of the broadcast was the effect a wall in a quarry near the township had had on the amount of water that struck Grantham. The broadcast alleged the quarry was owned, at the time of the flood, by “one of Australia’s wealthiest families, concrete giants, the Wagners”. The plaintiffs, who are brothers, allege “Wagners” was and is a family business, owned and operated by each of the plaintiffs. The plaintiffs plead their respective positions in the “Wagners” business and allege each were well known within the community as being associated with the Wagners’ name and business. The plaintiffs allege the inclusion in the broadcast of the words “at the time of the flood the quarry was owned by one of Australia’s wealthiest families, concrete giants, the Wagners” whilst imposing an image of a helmet displaying the logo “Wagners” meant the broadcast was reasonably understood to refer to each plaintiff, and was published of and concerning each plaintiff. The plaintiffs further allege the broadcast, in its natural and ordinary meaning, was defamatory of each of them. Broadcast The broadcast comprised the following words: Paragraph 18 of the statement of claim alleges:“In its natural and ordinary meaning, the Broadcast and the Internet publication meant and were understood to mean (as separate imputations arising in respect of each plaintiff) that each of the first, second, third and fourth plaintiffs:(a) was responsible for the catastrophic flood which devastated the town of Grantham and killed 12 people, including an infant child, in that the enormous wall at his quarry burst, unleashing an unprecedented inland tsunami into the town;(b) despite being responsible for the catastrophic flood which devastated the town of Grantham and killed 12 people, tried to hide his responsibility.” Paragraph 19 of the statement of claim alleges:“By reason of the matters pleaded at paragraphs 1 to 5, the words spoken by the sixth defendant … meant and were understood to mean (as separate imputations arising in respect of each plaintiff) that each of the … plaintiffs:(a) was responsible for the catastrophic flood which destroyed the town of Grantham and killed 12 people, in that the enormous wall at his quarry burst, unleashing the flood.”Applicable principles

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Whilst it may be that better particulars would be provided after disclosure, the defendants are entitled to know, at this stage of the proceeding, the facts matters and circumstances relied upon by the plaintiffs to establish those pleaded states of mind. This is particularly so as it does not follow those facts are facts solely within the knowledge of the sixth defendant.[9] [9] cf. Harvey v Commonwealth Scientific and Industrial Research Organisation [2000] 2 Qd R 594 at [23].Conclusions Paragraphs 18 and 19 of the statement of claim should be struck out, with liberty to replead. The defendants are entitled to particulars of paragraphs 1, 2, 3, 4, 5, 20 and 21 of the statement of claim. I shall hear the parties as to the form of orders and costs.

Ratio Decidendi

Legal Principle Established

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