Wagner v Nine Network Australia (No. 2)

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SUPREME COURT OF QUEENSLAND

CITATION:

Wagner & Ors v Nine Network Australia & Ors (No. 2) [2016] QSC 198

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:

SC No 11789 of 2015

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

1 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2016

JUDGE:

Boddice J

ORDER:

1.    Paragraphs 18(a), 18(c) and 19 of the amended statement of claim are struck out.

2.    The application is otherwise dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – OTHER CASES AND MATTERS – where Channel 9 broadcasted an edition of the programme “60 minutes” about the 2011 Grantham floods– where the plaintiffs allege the broadcast was defamed each of them – where the plaintiffs allege the broadcast, and words spoken by the sixth defendant during the broadcast, imputed the plaintiffs caused the deaths of 12 people by failing to take steps to prevent a quarry wall, located on property owned by the plaintiffs’, from collapsing and causing the flood – where the plaintiffs allege the broadcast also imputed the plaintiffs sought to conceal the truth about the role the quarry played in causing the flood – where the plaintiffs allege the broadcast also imputed they had disgracefully refused to answer to the public for failing to take steps to prevent the quarry wall from collapsing – where the defendants apply to strike out the imputations alleged by the plaintiffs – where the defendants argue each of the alleged imputations are incapable of arising and constitute strained, forced or unreasonable interpretations of the broadcast – whether each of the alleged imputations is reasonably capable of arising

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

COUNSEL:

TD Blackburn SC, with 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 imputations pleaded in paragraphs 18 and 19 of the plaintiffs’ amended statement of claim in a defamation proceeding.  This proceeding relates to material published on Channel 9, as part of an edition of the programme “60 Minutes”. 

  2. At issue is whether the pleaded imputations are so clearly incapable of arising as to warrant an order striking them out, or are pleaded in a form which of itself justifies an order striking out…

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Details
Case
[2016] QSC 198
Decision Date

CaseChat Overview and Summary

In the case of Wagner v Nine Network Australia (No. 2), the plaintiffs brought a defamation claim against the defendants following a broadcast by Channel 9 on the programme "60 Minutes" about the 2011 Grantham floods. The plaintiffs alleged that the broadcast and words spoken during the broadcast defamed them by imputing that they caused the deaths of 12 people by failing to take steps to prevent a quarry wall from collapsing, sought to conceal the truth about their role in causing the flood, and disgracefully refused to answer to the public for their failure to prevent the collapse. The defendants applied to strike out the pleaded imputations, arguing that they were incapable of arising and constituted strained, forced, or unreasonable interpretations of the broadcast.

The court had to determine whether the pleaded imputations were so clearly incapable of arising as to warrant striking them out or were pleaded in a form that justified striking them out. The applicable principles were that the question of whether the words were reasonably capable of conveying the imputation to the ordinary reasonable reader was a question of law, and the ordinary reasonable reader was a person of fair, average intelligence who was neither perverse nor morbid nor suspicious of mind nor avid of scandal.

The court found that the meaning pleaded in paragraph 19 of the amended statement of claim was properly to be struck out. The court found that the imputations pleaded in paragraphs 18(a), 18(c) and 19 of the amended statement of claim were incapable of reasonably being conveyed to the ordinary reasonable viewer. However, the court found that the meaning pleaded in paragraph 18(b) was capable of reasonably being conveyed to the ordinary reasonable viewer. The application was dismissed in all other respects.

The orders of the court were that paragraphs 18(a), 18(c) and 19 of the amended statement of claim were struck out. The application was otherwise dismissed, and the parties were to be heard as to any other orders and costs.

Orders

Orders of the court

1. Paragraphs 18(a), 18(c) and 19 of the amended statement of claim are struck out.

2. The application is otherwise dismissed.

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, or are pleaded in a form which of itself justifies an order striking out those imputations.Background This is the second application brought by the defendants to strike out pleaded imputations. The first application resulted in an order striking out the previously pleaded imputations with liberty to apply. As a consequence of those orders, the pleaded imputations were altered significantly. In my earlier decision I set out in detail the background to the proceeding and the contents of the broadcast in issue. [1] I will not repeat those matters in these Reasons. However, I rely upon them for my decision.[1] Wagner & Ors v Nine Network Australia & Ors [2016] QSC 87 at [3] – [8].The application to strike out Paragraph 18 of the amended 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 of his quarry burst, unleashing an unprecedented inland tsunami into the town;caused the deaths of 12 people, including an infant, as well as incomprehensible grief, trauma and devastation, by not taking steps that he should have taken to prevent a quarry wall on property he owned from collapsing and causing the catastrophic flood that devastated the town of Grantham;(b) despite being responsible for the catastrophic flood which devastated the town of Grantham and killed 12 people, tried to hide his responsibility. has sought to conceal the truth from becoming known about the role his quarry played in causing the catastrophic flood that devastated the town of Grantham;(c) has disgracefully refused to answer to the public for his failure to take steps that he should have taken to prevent a quarry wall on property he owned from collapsing and causing the catastrophic flood that devastated the town of Grantham.” Paragraph 19 of the amended statement of claim alleges:“By reason of the matters pleaded at paragraphs 17 to 5, the words spoken by the sixth defendant referred to in paragraph 11(c) meant and were understood to mean (as separate imputations arising in respect to each plaintiff) that each of the first, second, third and fourth 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.caused the catastrophic flood which destroyed the town of Grantham and killed 12 people, by not taking steps that he should have taken to prevent a quarry wall on property he owned from collapsing.”Applicable principles The applicable principles are not in dispute between the plaintiffs and the defendants. They were summarised in my earlier Reasons thus:[2]“[11] The question for determination is “whether the words are reasonably capable of conveying the imputation to the ordinary reasonable reader”.[3] The relevant principles for determining capability were summarised in Queensland Newspapers Pty Ltd v Palmer:[4]‘[19] Whether words complained of are capable of conveying a defamatory meaning is a question of law. The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. In deciding whether a particular imputation is capable of being conveyed in the natural ordinary meaning of the words complained of, the question is whether it is reasonably so capable to the ordinary reasonable reader. The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it. However, any strained, or forced, or utterly unreasonable interpretation must be rejected.[20] The ordinary reasonable reader is a person of fair, average intelligence who is neither perverse nor morbid nor suspicious of mind nor avid of scandal. However, that person does not live in an ivory tower but can, and does, read between the lines in light of that person’s general knowledge and experience of worldly affairs. The ordinary reasonable reader considers the publication as a whole, and tends to strike a balance between the most extreme meaning that the publication could have and the most innocent meaning. That person has regard to the content of the publication. Emphasis given by conspicuous headlines or captions is a legitimate matter the ordinary reasonable reader takes into account.[21] Whilst the test of reasonableness guides a determination of whether the matter complained of is capable of conveying any of the pleaded imputations, a distinction must be drawn between what the ordinary reasonable reader (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of, and the conclusion which the reader could reach by taking into account his or her own belief which has been excited by what was said. The approach to be taken must be the former, not the latter.…[23] Ultimately, a determination of the meaning conveyed to the ordinary reasonable reader is, as the appellant accepted, a matter of impression, allowing for the fact that that reader is likely to have read the publication only once.’(footnotes omitted)”[2] Wagner & Ors v Nine Network Australia & Ors [2016] QSC 87. [3] Palmer v Nationwide News Pty Ltd [2014] QSC 174 at [13].[4] [2012] 2 Qd R 139; [2011] QCA 286.Defendants’ submissions

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The meaning pleaded in paragraph 19 of the amended statement of claim is properly to be struck out.Conclusion The defendants have established that the imputations pleaded in paragraphs 18(a), 18(c) and 19 of the amended statement of claim are incapable of reasonably being conveyed to the ordinary reasonable viewer. The defendants have not, however, established that the meaning pleaded in paragraph 18(b) is incapable of reasonably being conveyed to the ordinary reasonable viewer.Orders1. Paragraphs 18(a), 18(c) and 19 of the amended statement of claim are struck out.2. The application is otherwise dismissed. I shall hear the parties as to any other orders and costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.