Wagner v Nine Network Australia Pty Ltd - [2019] QSC 284

SUPREME COURT OF QUEENSLAND

CITATION:

Wagner & Ors v Nine Network Australia & Ors [2019] QSC 284

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:

22 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

6 September 2019 (Brisbane), 14 and 15 October 2019 (Toowoomba)

Supplementary written submissions 28 October and 1 November 2019

JUDGE:

Applegarth J

ORDERS:

Each plaintiff’s damages against the first to fifth defendants are assessed in the sum of $600,000. Interest on damages to awarded in the amount of $63,000.

Each plaintiff’s damages against the sixth defendant are assessed in the sum of $300,000. Interest on damages to awarded in the amount of $31,500.

CATCHWORDS:

DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – IN GENERAL – where a jury found that a 60 Minutes program imputed that the plaintiffs caused a man-made disaster and that the disaster was the result of their failing to take steps that they should have to prevent a quarry wall on property they owned from collapsing, causing a devastating wall of water to destroy Grantham and kill twelve people – where the jury found that the sixth defendant, an experienced journalist who featured in the program, conveyed a similar imputation by his words – where the program also was found to impute that the plaintiffs sought to conceal the truth about the role their quarry played in the flood and that the plaintiffs disgracefully refused to answer to the public for their failure to take steps to prevent the quarry wall they owned from collapsing and causing the flood – what award of damages should be given to each plaintiff against the Nine Network defendants and against Mr Cater

DEFAMATION – DAMAGES – GENERAL DAMAGES - ASSESSMENT – SPECIAL MATTERS – AGGRAVATION – CONDUCT OF THE PARTIES – where the plaintiffs claim aggravated compensatory damages on the basis that the defendants engaged in conduct that was improper, unjustifiable or lacking in bona fides – where the defendants made inadequate attempts to ascertain the truth – where the defendants possessed information which contradicted allegations in the program but did not report it – where the defendants made belated attempts to seek a response from the plaintiffs and did not include in the program any part of a statement issued by the plaintiffs – where, despite the findings of a Commission of Inquiry which in October 2015 discredited the allegations in the program, the defendants pleaded a defence of justification for seven months, withdrawing it in November 2018 – where the defendants have failed to broadcast a correction, retraction or apology in the years following the program – whether the defendants engaged in conduct which was improper, unjustifiable or lacking in bona fides – whether there should be awards of aggravated compensatory damages against the Nine Network defendants and against Mr Cater

DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – SPECIAL MATTERS – MITIGATION – where in September 2018 the plaintiffs received large awards of damages for numerous defamations, including substantially similar imputations, broadcast on a radio show – whether the previous awards and any public vindication achieved by reporting that decision should mitigate damages, and the extent of any such mitigation

Defamation Act 2005 (Qld), s 19, s 35(2), s 36, s 37, s 38(2)
Uniform Civil Procedure Rules 1999 (Qld), s 166(4), s 166(5)

Adelson v Associated Newspapers Ltd [2008] EWHC 278 (QB); [2009] EMLR 10, cited

Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, cited
Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185, cited

Barrow v Bolt [2013] VSC 226, followed
Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674; [2018] VSCA 154, followed

Broomev Cassell & Co Ltd [1972] AC 1027, cited

Cairns v Modi [2013] 1 WLR 1015; [2012] EWCA Civ 1382, cited

Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091, cited

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31, cited

Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89; [2014] QCA 33, cited

Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185, cited

Choudhary v Martins [2008] 1 WLR 617; [2007] EWCA Civ 1379, cited
Clark v Molyneux (1877) 3 QBD 237, cited

Couch v Attorney-General [2010] 3 NZLR 149; [2010] NZSC 27, cited

Crampton v Nugawela (1996) 41 NSWLR 176, cited

Cripps v Vakras [2014] VSC 279, cited
David Syme & Co Ltd v Mather [1977] VR 516, cited

Davis v Nationwide News Pty Ltd [2008] NSWSC 693, cited

Flegg v Hallett [2015] QSC 167, cited

Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838, cited

Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182, cited

Harbour Radio Pty Ltd & Ors v Wagner& Ors [2019] QCA 221, cited

Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161, cited

Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; [2015] FCA 652, cited

Jones v Dunkel (1959) 101 CLR 298, cited
Lafone v Smith (1858) 3 H & N 735, cited

Lewis v Daily Telegraph Ltd [1964] AC 234, cited

Ley v Hamilton (1935) 153 LT 384, cited

Lim Eng Hock Peter v Lin Jian Wei [2010] SGCA 26, cited

Lower Murray Urban and Rural Water Corporation v Di Masi (2014) 43 VR 348; [2014] VSCA 104, cited
Lumba v Secretary of State for the Home Department [2012] 1 AC 245, cited

Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643, cited

Mirror Newspapers v Jools (1985) 5 FCR 507, cited
Nail v News Group Newspapers [2004] EWHC 647 (QB); [2004] EMLR 20, cited
Murray v Raynor [2019] NSWCA 274, cited

New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57, cited

O’Neill v Fairfax Media Publications Pty Ltd (No 2) [2019] NSWSC 655, cited

O’Shane v Fairfax Publications Pty Ltd [2002] NSWSC 807, cited

Pahuja v TCN Channel Nine Pty Ltd (No 3) [2018] NSWSC 893, cited

Pettiona v Nationwide News Pty Ltd [2019] FCA 1690, cited

Praed v Graham (1889) 24 QBD 53, cited

Purnell v Business F1 Magazine Ltd [2008] 1 WLR 1; [2007] EWCA Civ 744, considered

Rayneyv Western Australia (No 9) [2017] WASC 367, cited

Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729, cited

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, cited
Siemer v Stiassny [2011] 2 NZLR 361; [2011] NZCA 106, cited

Singleton v Ffrench (1986) 5 NSWLR 425, cited

State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208, distinguished

Tabbaa v Nine Network Australia Pty Ltd [2019] NSWCA 69, cited

The Gleaner Co Ltd v Abrahams [2004] 1 AC 628; [2003] UKPC 55, cited

The Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254, cited

Thompson v Australian Capital Television Pty Ltd (1997) 129 ACTR 14, cited

Timms v Clift [1998] 2 Qd R 100, cited
Triggell v Pheeney (1951) 82 CLR 497, followed

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, cited
Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201, considered
Wagner & Ors v Nine Network Australia Pty Ltd [2017] QCA 261, cited

Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58, cited

Wilson v Bauer Media Pty Ltd [2017] VSC 521, cited

COUNSEL:

T D Blackburn SC, P J McCafferty QC and D Tay for the plaintiffs
R J Anderson QC and M Richardson for the defendants

SOLICITORS:

Corrs Chambers Westgarth for the plaintiffs
Macpherson Kelley for the defendants

Table of Contents

Introduction

The program

The thrust of the program

The missing hour and the helicopter logs

Nine’s late and inadequate attempts to seek information and a response from the Wagners

Reckless indifference to the truth or falsity of the imputations

The circumstances of Nine’s publication of the defamatory matter

The circumstances of Mr Cater’s publication of the defamatory matter

Post-publication conduct by the defendants

Failure to correct, retract or apologise

Nine’s comment on Media Watch

Mr Cater’s post-publication conduct

Jury address

Plea of justification

Conclusion – post-publication conduct

Damages – legal principles

Aggravated compensatory damages

Should there be a separate award for the additional harm to reputation or injured feelings caused by aggravating conduct?

Mitigation

Appropriate compensation - aggravation and mitigation

The falsity of the imputations

Assessing a single amount and avoiding double compensation

Conclusion – aggravated compensatory damages should be awarded

The cap on damages for non-economic loss in s 35

Does the cap apply to the claim brought by each plaintiff or to their collective claims?

The plaintiffs’ evidence

Denis Wagner

John Wagner

Neill Wagner

Joe Wagner

Effect of the conduct of the Nine Network defendants on the plaintiffs

Effect of the conduct of Mr Cater on the plaintiffs

Plaintiffs’ knowledge of falsity

Failure and refusal to retract and apologise

The Alan Jones radio broadcasts

Assessment of the plaintiffs’ evidence

Circumstances of aggravation

Matters in mitigation

The Harbour Radio proceedings

The settlement of The Spectator proceedings

Separate judgments against the Nine Network defendants and against Mr Cater

Four separate awards

Assessment of damages

The appearance of a punitive award?

Interest and costs

Judgment and orders

Introduction

Decades ago Lord Hoffmann stated:
“What most plaintiffs want is the immediate publication of a correction with or without some modest compensation. What they get is three or four years of anxious and obsessional waiting, followed by a trial which, even if it ends in success, may reopen injuries everyone else had forgotten and stamp them indelibly on the public mind”.[1]
Those words might have been written with plaintiffs like the Wagners in mind. They apply generally to the victims of indefensible defamations.
[1]Quoted in Adam Raphael, My Learned Friends (WH Allen, 1989) at 226.
The Wagners were defamed by a 60 Minutes program which was broadcast to a national audience and made available online. The defamation was broadcast on 24 May 2015.

The sting of the program was that the Wagners caused a man-made disaster: the catastrophic flood which killed twelve people and destroyed the town of Grantham. A jury found that the program conveyed this meaning, and imputed that the disaster was the result of their failing to take steps that they should have to prevent a quarry wall on property they owned from collapsing, causing a devastating wall of water to engulf Grantham. The jury found that Mr Nicholas Cater, an experienced journalist who featured in the program, conveyed a similar imputation by his words.
In addition, the jury found that the 60 Minutes program imputed that the Wagners:
·sought to conceal the truth from becoming known about the role their quarry played in causing the catastrophic flood that devastated the town of Grantham; and
·disgracefully refused to answer to the public for their failure to take steps that they should have taken to prevent a quarry wall on property they owned from collapsing and causing the catastrophic flood that devastated the town of Grantham.
Unsurprisingly, the jury found that the meanings the program and Mr Cater’s words conveyed were defamatory. There was no substantive defence. The jury trial was concerned only with whether the defamatory meanings alleged by the Wagners were in fact conveyed.
There was no issue at the trial that the defamatory meanings are true. The uncontested evidence is that they are false. A reasonable inquiry into the facts would have shown this.
The defendants did not attempt to defend their defamatory communications at trial on the basis of a public interest defence to the effect that they acted in good faith and reasonably in airing allegations on a matter of public interest.
Nor did they attempt to defend their defamations at trial on the basis that they were honest, but mistaken, opinions.
The reasons they had no prospect of defending the broadcast on the basis of a public interest or honest opinion defence will become apparent.
The falsity of the allegation that the Wagners and their quarry wall caused the flood that devastated Grantham was established at a Commission of Inquiry. Mr Cater and others were not satisfied with its findings, and pressed for a second inquiry. Its report was handed down on 8 October 2015 and concluded that the quarry did not materially contribute to the damage caused in Grantham or near the quarry on 10 January 2011. The report of the Grantham Flood Commission of Inquiry (“GFCI”) emphasised that “any person with the willingness to read and consider this report carefully and, if necessary to study the evidence of the eyewitnesses and experts that backs it up, must conclude that the flood of 10 January 2011 was a natural disaster and that no human agency caused it or could ever have prevented it.”
In delivering his report, the Commissioner said that the Wagners had been “unjustly blamed by some people” and “viciously blamed by some elements of the media, and they should not have been.”
Despite the findings of two Commissions of Inquiry, and without any apparent foundation in investigations the defendants had undertaken to justify such a serious plea, the defendants pleaded on 11 April 2018 that the imputations were true.
They appear to have simply copied and pasted the truth defences deployed by the defendants in a different action: Wagner & Ors v Harbour Radio Pty Ltd & Ors.[2]
[2][2018] QSC 201 (“Harbour Radio”).
Those defences were ill-founded. A lengthy trial before Flanagan J considered the evidence in detail, and, in essence, found that the expert evidence before the Commission of Inquiry commanded acceptance.
Mr Cater had been in possession of evidence which contradicted the theory he propounded about the source of the wave that engulfed Grantham. He had been told by an observer that the wave had come overland further back from the quarry. Nine was also is possession of that witness’ evidence before the 60 Minutes broadcast, but for reasons which are unexplained by the Nine Network defendants, they either overlooked or chose to disregard it.
On 14 September 2018, the defendants’ then solicitors advised the Wagners’ solicitors that in the light of the judgment of Flanagan J the defendants “no longer press” their truth defences, and those defences were withdrawn by way of amendment on 22 November 2018.
The fact that the defendants wished to contest that their publications conveyed the defamatory meanings contended for by the Wagners was not a good reason to continue to refuse to issue a public correction, retraction or apology. The law has long recognised that a defendant may formulate such a statement while not admitting that the meanings were in fact conveyed.[3]
[3]Gatley on Libel and Slander (Sweet & Maxwell, 12^th ed, 2013) at [29.2] (“Gatley”) notes that an apology such as “If that is how my words were understood, then I apologise” may be sufficient provided it is acknowledged that the defamatory charge is untrue. Past and present editions of Gatley have precedents for the wording of such an apology.
Since 1 January 2006 uniform defamation laws make it impossible for a plaintiff to use an apology as an admission of liability. Evidence of an apology is not admissible as evidence of liability.[4]
[4]Defamation Act 2005 (Qld), s 19.
Therefore, it was possible for the defendants to apologise to the Wagners in case their publications were later shown to have defamed the Wagners, as alleged, and still go to trial and attempt to persuade the jury that those meanings were not in fact conveyed.
Despite the findings of two Commissions of Inquiry and the findings of a Supreme Court Judge (whose findings were not appealed) that the Wagners’ quarry did not cause the flood which devastated Grantham and killed 12 people, no correction or retraction, let alone an apology, has been published on 60 Minutes or any other Nine Network program. Even after a jury found on 6 September 2019 that the Wagners had been defamed, as alleged, there was no correction, retraction or apology on the offending program.
The Wagners seek damages to vindicate their reputations, to provide reparation for the harm done to their reputations and to console them for the personal distress and hurt caused by the broadcast. They say that their damages should take account of the improper and unjustifiable conduct of the defendants which has increased the harm done to them. This conduct includes the unreasonable failure to publish a retraction or apology. They submit that this conduct entitles them to aggravated compensatory damages.
Mr Cater is liable for the republication of his words on 60 Minutes which were found to have conveyed the imputation that the Wagners:
“caused a man-made disaster, a catastrophic flood which destroyed the town of Grantham and killed 12 people, by failing to take steps that they should have taken to prevent a quarry wall on property they owned from collapsing, causing a devastating wall of water to engulf the town of Grantham.”
He is not liable for other parts of the program including those parts which conveyed two other defamatory imputations about the Wagners.
The principal issues are:
1.What award in favour of each plaintiff against the Nine Network defendants is appropriate to compensate him for the three defamatory meanings conveyed about him on the 60 Minutes program?
2. Should the award be for aggravated compensatory damages?
3.What award in favour of each plaintiff against Mr Cater is appropriate to compensate him for the defamatory meaning conveyed by Mr Cater’s words, as broadcast on the 60 Minutes program?
4. Should the award be for aggravated compensatory damages?
The program
Words cannot properly convey the tone or the effect of the program. A transcript is inadequate to convey the seriousness of the imputations or their effects on the plaintiffs. This is because of the emotional force conveyed by images of the victims, including a young mother whose infant was taken from her arms by the force of the floodwater and died.
The story was titled “The Missing Hour” and was presented by the 60 Minutes reporter, Michael Usher. It began:
“Grantham in Queensland was virtually washed off the map when record floods hit the town in 2011. In this small country community 12 people died. Four years on, the grief and trauma from that day remains raw and has been compounded by a cruel injustice. You see the official inquiry into those devastating floods got it wrong. It overlooked a crucial hour in its account of that devastating afternoon. An hour that explains what happened when a quarry wall burst sending a wall of water through Grantham. It is the missing hour and it’s time the truth is finally known.” (emphasis added)
The story starts with the account of a flood victim, Martin Warburton, who describes the flood as a monster and “an enormous wall of water”, and how “Armageddon” had come to town that day. Mr Usher then states:
“A controversial quarry wall.”
The program then contains an excerpt of an interview with the Premier of Queensland, Ms Palaszczuk, who asks:
“What was the impact of the quarry? Where did the large volume of water come from?”
Mr Usher then refers to “the missing hour” and there is an excerpt from an interview with Mr Cater about a document. Later in the program the item is revealed to be a log of the Channel Nine helicopter from the day of the flood. The program continues:
“MICHAEL USHER: Finally, the proof.
NICK CATER: A man-made disaster that should have been avoided but wasn’t.”

After a further harrowing account of the devastation caused by the flood to the residents of Grantham, including Mr Warburton’s experience of having to climb on the roof of the petrol station he operated in the township, the program turns to the tragic case of
Ms Stacey Keep:
“MICHAEL USHER: Marty wasn’t alone. A few submerged streets away, Stacey Keep had tried as long as she could to hold onto her baby Jessica but the force of the water was too strong.
PHOTO OF BABY JESSICA KEEP
STACEY KEEP: I had my baby girl in my arms and then she was taken from me. And I thought it was only me that was left. I thought everybody was gone.
MICHAEL USHER: It’s the force and the source of that wall of water that Stacey, Marty and others in Grantham have always described, which should have been at the centre of the investigations.
But first hand accounts of that terrible afternoon were ignored by the official flood Inquiry. An Inquiry that also didn’t accurately record the timeline of the Grantham flood and dismissed residents’ concerns that a collapsed quarry wall upstream released a devastating wall of water that engulfed the town.” (emphasis added)
The vision of Ms Keep tearfully recounting how her baby died would affect any viewer, and her inconsolable loss, as depicted in the program, proved extremely distressing and hurtful to each of the plaintiffs. Understandably, they felt that the program accused them of being responsible for the wall of water which killed 12 people, including Ms Keep’s baby daughter, and which caused people like Ms Keep incomprehensible grief.
The program then proceeds to explain, largely with the inclusion of Mr Cater’s statements, that the wall of water that killed 12 and devastated the town came from the quarry. Mr Cater said that the Commission of Inquiry report “just got it flat wrong”.
Mr Cater, described in the program as a “tireless campaigner for Grantham” who had focused attention on residents’ accounts of the wall of water, was interviewed for the program. A number of excerpts from his interview appear in the program, including the following:
“Nothing I have seen of that area accounts for why that would happen if there wasn’t some catastrophic event, and the catastrophic event was clearly the collapse of the quarry wall.” (emphasis added)
Mr Usher then says:
“The quarry wall breached like a burst dam. All that water which had built up behind it exploded in a giant wave from the west channelled on one side by a high train line and hitting Grantham head on.”
Mr Cater then says:
“It was man-made intervention, this was no act of God.”
The story then shifts to the following report by Mr Usher:
“Today the disused quarry is owned by Boral and is behind locked gates. This vision was shot in secret and sent to us. It shows the wall central to eyewitness accounts of that devastating day. At the time of the flood, the quarry was owned by one of Australia’s wealthiest families, concrete giants, the Wagners, who declined our request for an interview about the quarry wall.” (emphasis added)
The program then contains Mr Cater’s account of how the quarry wall came to be built and how it formed a barrier that stopped a massive volume of water taking its normal course along the river and, instead, allowed “a massive reservoir” to build up behind it for more than an hour. Mr Usher and Mr Cater critique the findings of the original Commission of Inquiry and how the “consistent story” of eyewitnesses about a wall of water sweeping through the town at around 4 pm was “missed by the Commission”.
Mr Usher says, “In this story, timing is everything”, and says that the Commission was wrong about the timing of the disastrous flood that hit Grantham that afternoon.
Aerial vision from the Channel Nine helicopter and the flight logs are said to “reveal when the inland tsunami was unleashed on Grantham at least an hour after the Commission claimed.” Mr Cater is shown the flight logs by Mr Usher who says that the logs are very important and explains why. When asked:
“What does this do to the accepted timing that the flood, the wall of water, hit at around 3.15?”
Mr Cater responds:
“Well it knocks it out of the water doesn’t it? If you excuse the pun, I mean it’s ludicrous to say that the flood happened at 3 – 3 to 3.30. How can you? You’ve got the evidence here.”
Mr Usher says: “It is the missing hour”.

Importantly, Mr Usher then says:
“And it matters because that’s when a lake of water was building up behind that quarry wall. It matters because this disaster was not just an act of God.” (emphasis added)
An excerpt from Mr Cater’s interview about the cause of 12 people dying then is shown, with him saying:
“If it hadn’t of been held back there would have been a flood but it would not have taken lives in my view. If it hadn’t of been for the quarry wall, I don’t think that 12 people would have died in that town that day.”
The program then reports what is said to have been the findings of an independently commissioned hydrology report, commissioned by Mr Cater for The Australian newspaper, which is said to have been “scathing of the official findings regarding the timing and the size of the inland tsunami”. Mr Cater again appears in the program describing how when the quarry wall burst, it was like a dam bursting, with an enormous volume of water taking everything in its path, with so much water moving through the town that whole houses were demolished and one house exploded. He says “Nothing can survive.”
Then the story returns to Ms Stacey Keep, with Mr Usher referring to “the moment the wall of water took her daughter”. Images of a distressed Ms Keep being interviewed appear and she says:
“It’s a piece of my heart that’s missing. I’ll never get it back.”
The program then reports the new Queensland Premier, “only 12 weeks into the job”, having established a new Commission of Inquiry and the Premier’s intention of “finding the truth”, giving the residents of Grantham “closure” and getting the answers to their questions. The Premier nominates these two questions:
“What was the impact of the quarry? Where did the large volume of water come from?”
Towards the end of the program Mr Usher says that many people in Grantham hold concerns over the “now crumbled quarry wall” and what its current owners, the cement giant Boral, plan to do with it. He says some locals fear that there may be movements very soon to try and dismantle what is left of it, and that this “could prove to be key evidence.” He asks the Premier to give guarantees that the area would not be touched whilst the Inquiry was underway. The Premier says she would be extremely alarmed if that was the case and that under no circumstances should the area be touched. She indicates she would be conveying to the Commissioner the need to ensure that “no evidence is trampled with”.
Mr Usher then says:
“Evidence and answers can’t come soon enough for Grantham. This is a town that deserves to know how an act of God turned deadly due to the failings of men. This town deserves the truth.” (emphasis added)

The thrust of the program

The program did not suggest that there was any doubt about “the truth” it presented. The so-called “missing hour” evidence was the final proof that the quarry wall burst and sent a wall of water through Grantham, killing 12 people, destroying the town and causing ongoing grief and trauma to people like Mr Warburton and Ms Keep. The first Commission of Inquiry had not found the truth. Its findings amounted to “a cruel injustice”.
The program did not present two competing accounts in the form of allegations articulated by Mr Cater and a response. Instead, Mr Cater and his tireless work had found the truth and Channel Nine’s helicopter logs were the final proof in discrediting the findings of the original Commission of Inquiry.
According to 60 Minutes, the truth was known and the second Commission of Inquiry was expected to confirm it.
The program was not concerned simply with the physical cause of the Grantham disaster in which 12 people died, followed by four years of “grief and trauma”. The flood was a “man-made disaster”. To quote Mr Cater:
“A man-made disaster that should have been avoided but wasn’t.”
To quote Mr Usher, an act of God turned deadly “due to the failings of men.”
The only men identified in the program whose failings an ordinary reasonable viewer would identify were the Wagners.
The missing hour and the helicopter logs
The program placed great reliance upon times recorded in the Nine Network’s Brisbane helicopter logbook. However, the logbook was incorrect. More reliable information was available from data described as “the Skytrack information”. This information was accessible from Skytrack, which retained the data. Channel Nine’s chief pilot retrieved the Skytrack information on 2 June 2015. However, the 60 Minutes program was broadcast on 24 May 2015. The day he received the Skytrack information, Nine’s chief pilot identified the error in the “skids off time” which had been relied upon in the
60 Minutes program. No explanation has been given by the Nine Network defendants as to why the program went to air without first retrieving and considering the Skytrack information. The Skytrack information discredited the program’s “Missing Hour” thesis.
Nine’s late and inadequate attempts to seek information and a response from the Wagners
The program was in the course of preparation for at least several weeks prior to its broadcast on 24 May 2015. Because the defendants chose to not call witnesses or tender any documents on the point, the date when the defendants first began developing the program cannot be stated. However, on 8 April 2015 the program’s producer, Jo Townsend, emailed Mr Cater thanking him “for the chat and your ideas”. A week later Ms Townsend advised Mr Cater that she was heading up to Queensland that week and asked Mr Cater to send through any audio and transcripts of any interviews. The same day, 14 April 2015, Mr Cater apologised for his delay in doing so and told Ms Townsend in an email “I hear 4 Corners are sniffing around”. His email attached a number of statements and other documents.
By 7 May 2015 Ms Townsend was in a position to advise Mr Cater by email that she had “honed our story right down” and would be doing a story “focusing on the quarry embankment as well as the ‘lost’ hour”. She again asked Mr Cater for his help for her forthcoming “research trip” early the next week.
On 8 May 2015 Mr Cater replied and offered Ms Townsend the opportunity to interview him. He said that he had been “digging away on the story for more than two years” and until the end of 2014 even his former colleagues at The Australian “thought I was bonkers.” He felt vindicated by the announcement of a new Inquiry. Mr Cater told Ms Townsend:
“I can give you a good, colourful, descriptive grab if you like. You may have heard the stuff I’ve been saying on Alan Jones’ program.”
It is reasonably apparent from these emails that the producers of 60 Minutes had decided by early May 2015 that the focus of the story was to be on the quarry and its role in the devastating flood.
Because the story’s focus was to be on the Wagners’ quarry and Mr Cater’s contention that the quarry caused the deaths of 12 people and other devastation, one might have expected a responsible media organisation with an interest in ascertaining and reporting the truth to seek a response from the Wagners to Mr Cater’s allegations, and to do so well in advance of the program. This would enable the truth to be ascertained and any doubts surrounding the allegations which Nine intended to broadcast addressed and included in the program. This did not happen.
Instead, the first contact with the Wagners occurred a few days before the broadcast. Ms Townsend spoke to Ms McKinley, a media consultant to the Wagner group, on
20 May 2015. She followed up her phone call with an email sent late on the morning of Thursday, 21 May 2015. It offered the Wagners the opportunity for Denis Wagner to have a “short off-camera and private unrecorded informal chat” with Michael Usher before “our cameras begin rolling on the formal interview.” Ms Townsend said “Time for us is very tight with our story due to air this Sunday.” The on-camera interview would need to take place no later than about 9 am on Friday. She asked whether Denis Wagner could travel to Brisbane or Sydney for the interview. She wrote:
“If Denis decides not to do the interview, 60 Minutes usually notes in our story that the person was contacted for interview but declined. Thanks for your offer of a statement, but given our well-known 60 Minutes format we discussed, an on-camera interview is obviously a preference at this stage.”
In considering the conduct of the Nine Network defendants and the circumstances surrounding the broadcast, it is necessary to distinguish between three matters:
1.The obligation of a responsible or reasonable publisher, acting in good faith, to seek out information which might add to a proposed story, by way of confirmation, qualification or contradiction.
2.The obligation to put adverse allegations or possibly defamatory imputations contained in the proposed story to the subject of those allegations for response, and to do so at a time which allows the subject a reasonable opportunity to consider their position and to adequately respond.
3.The question of whether the proposed subject of the story is offered the chance to participate in a formal interview which is recorded for the purposes of the publication.
Ms Townsend’s approach to the Wagners on 21 May 2015 was not in the nature of a research inquiry seeking out information for a potential story. The story had already been effectively prepared. What was being offered was the opportunity to appear in a recorded interview. Ms Townsend’s email of 21 May 2015 indicated that the scope of the interview would include the building of the quarry wall, including when and why it was built by Wagners and whether the Wagners believed further investigation regarding the impacts of the quarry wall on the flood was warranted. The letter, however, fell short of fairly and squarely putting to the Wagners the serious allegations contained in the proposed story about the supposed building of the quarry wall, how it burst and that the “man-made disaster” could have been avoided but was not due to “the failings of men”. The reasonable inference is open, and can be more easily drawn in the absence of disclosure and evidence from the Nine Network defendants, that as at 21 May 2015 the story was in an advanced state of preparation, including Mr Usher’s damning reference to “the failings of men”. It was going to air that Sunday.
That the producers of 60 Minutes had already made up their minds about what the story was going to contain, and that the Wagners were to be its target, is apparent from the contents of what is said to be Australia’s leading TV blog, TV Tonight. As at Thursday, 21 May 2015, it was previewing the contents of that Sunday night’s
60 Minutes. The apparent source of this information is the Nine Network, which declined to give disclosure of any communications between the defendants and TV Tonight. The TV Tonight blog of 21 May 2015 reads:
“The Missing Hour
12 people died in Grantham, Queensland when devastating floods tore through the town in January 2011. Dozens more people clung to their roofs, or were swept away before being rescued by helicopter. Locals have always maintained that a wall of water, which they describe as a monster, hit them with devastating impact and no warning. The only thing that could have caused that wall of water, was the collapse of a quarry wall, owned by one of Australia’s wealthiest families. But no one has believed the locals, and they were ignored by the first commission of inquiry. This Sunday, reporter Michael Usher goes back to Grantham and 60 Minutes will reveal the key evidence towards solving the mystery of this catastrophic event.
Reporter: Michael Usher
Producer: Jo Townsend” (emphasis added)
No explanation is given by the Nine Network defendants as to why the Wagners were not approached until the eleventh hour. There was no urgency in relation to the program. The program was not required in order to prompt authorities into launching an investigation. A Commission of Inquiry, chaired by a leading QC, was underway.
The Wagners considered the Nine Network’s request for an on-camera interview. Their position, which was a reasonable one, was that respect for the Commission of Inquiry made it appropriate for them to co-operate with that Inquiry and give their evidence to it, rather than appear in a television interview. Nevertheless, the following statement was sent to 60 Minutes at 5.05 pm on Thursday, 21 May 2015:
“This is a very emotional issue for everyone involved. The Grantham flood was a natural disaster and a catastrophic event that no one could have foreseen.
Like everyone in our small community, we have the deepest sympathies for people who lost loved ones in the flood.
Our family has been part of this community for generations. We live and work in the region and our business head office is here. We understand the impact the 2011 floods have had on our community.
In regards to speculation concerning the quarry, which we operated at the time of the Grantham flood, the 2011 inquiry’s findings and the official SKM hydrology report determined the quarry did not cause or contribute to the flood.
We had all relevant government approvals in place during the time we operated the quarry. We did not make any adjustments or changes to the creek banks, they were part of the natural landscape at the time.
It will be up to the new inquiry to determine if there is any change to those findings and we will cooperate and assist wherever possible, particularly if it helps get some closure of these issues.
- Denis Wagner, Director Wagners”
Not a single sentence from this statement found its way into the 60 Minutes program. There was not even a reference to the fact that a statement had been made and the possibility of viewers accessing it online. Instead, the program referred to “one of Australia’s wealthiest families, concrete giants, the Wagners, who declined our request for an interview about the quarry wall.”
Given the tone and content of the program and 60 Minutes’ targeting of the Wagners it is not surprising that the jury found that the program imputed that the Wagners “disgracefully refused to answer to the public for their failure to take steps they should have taken to prevent a quarry wall on property they owned from collapsing and causing the catastrophic flood that devastated the town of Grantham.”
The failure of the Nine Network to explain to viewers the circumstances in which, and the reasons why, the Wagners declined to appear in a recorded interview was unreasonable, unfair and unjustifiable in the circumstances. So too was their omission to include any part of the Wagners’ statement.
The failure to provide the Wagners with a reasonable opportunity to respond to the intended broadcast, and the omission to include any part of the statement which was given by the Wagners on 21 May 2015, coupled with the statement that the Wagners “declined our request for an interview about the quarry wall”, occurred in circumstances in which the Nine Network is not shown to have had any reasonable belief that the Wagners were attempting to conceal the truth from the public or to not cooperate with the Commission of Inquiry. During his interview with the Queensland Premier, Mr Usher asked:
“Do you believe the past owners of that site or the current owners should be on notice now to be open, to be truthful and to co-operate?”
to which the Premier responded:
“I believe from the public comments that I’ve seen from the past owners that they are more than willing to co-operate with the inquiry.

The Wagners complain about the omission of this exchange from the program. They contend that the premise of Mr Usher’s question was that they had not previously been open, truthful and cooperative, and that the Premier’s response demonstrated that she rejected that premise. The failure by the Nine Network defendants to include this exchange in the program is submitted to have been grossly unfair and disgraceful, indeed dishonest.
The Nine Network defendants respond that where the program only once referred to the Wagners as the owners of the quarry at the time of the flood, including the Premier’s words would only have tended to increase the prominence of the Wagners in the broadcast and would have increased the possibility that viewers would infer that the Wagners had something to hide. According to the defendants, including the Premier’s comments “is akin to including a denial, when the defendants did not intend to make an allegation”. They contend that including the denial “would be more likely to convey the defamatory imputation”. Finally, they contend that the failure to include the Premier’s statement in a broadcast of about 15 minutes’ length does not amount to evidence of improper or unjustifiable conduct.
The first thing to observe about the defendants’ submissions on this matter is that they are not supported by any evidence from the Nine Network defendants about the meanings they intended to convey about the Wagners or their reasons for not including the Premier’s statement.
It is invidious to reach a conclusion about the reasons the Nine Network defendants did not include the Premier’s words, or at least refer to them, in circumstances in which the defendants’ have not given evidence explaining their omission. It is sufficient to observe that the Premier’s remarks placed Nine on notice that the Premier considered that the Wagners were cooperative with inquiries into the Grantham flood. In the circumstances, care was required if Nine was to suggest that the Wagners were seeking to conceal the truth.
The program was capable of imputing that the Wagners were seeking to conceal the truth from becoming known about the role their quarry played in causing the catastrophic flood that devastated the town of Grantham. This meaning was in fact conveyed.
In my view, the issue is not so much the Nine Network defendants’ omission of the Premier’s exculpatory remarks. The issue is their unjustifiable conduct in publishing such a defamatory imputation in the first place, in circumstances in which they had no proper basis for broadcasting the imputation and had the Premier’s statement about the Wagners’ co-operation.
If, however, the issue is regarded as one about the conduct of the Nine Network defendants in not including the Premier’s exculpatory remarks, then the Nine Network defendants’ arguments are unconvincing. As noted, the program’s reference to the Wagners was capable of imputing that they were seeking to conceal the truth. If, as is suggested, the defendants did not intend to convey this allegation, then they should have taken steps to avoid it, for example by including the Premier’s words which contradicted such a suggestion, and disclaiming such an intention. If, however, the defendants did intend to convey such a meaning (and Mr Usher’s question to the Premier indicates that he believed that the Wagners had not been open, truthful and co-operative), then fairness dictated that the program include the Premier’s statement. This is so where the allegation was not put to the Wagners prior to the broadcast and their statement said they would
co-operate and assist the new inquiry. The inclusion of the Premier’s words would have added a few seconds to the program. The decision of the Nine Network defendants to omit them was unfair and unjustifiable.
Reckless indifference to the truth or falsity of the imputations
The foregoing shows that the Nine Network defendants were at least careless as to the truth or falsity of the imputations that the Wagners:
·sought to conceal the truth from becoming known about the role their quarry played in causing the catastrophic flood that devastated the town of Grantham; and
·disgracefully refused to answer to the public for their failure to take steps they should have taken to prevent a quarry wall on property they owned from collapsing and causing the catastrophic flood that devastated the town of Grantham.
Nine’s knowledge of the Wagners’ past co-operation with official inquiries and their preparedness to co-operate with the new Commission of Inquiry made it improper or unjustifiable to convey those imputations.
I also find that the Nine Network defendants were recklessly indifferent as to the truth or falsity of those imputations. Their failure to put those allegations to the Wagners is some evidence of that indifference.
The Nine Network defendants did not call any evidence about their belief or lack of belief in the first defamatory imputation which was conveyed by the program. This is the imputation to the effect that the Wagners failed to take steps that they should have to prevent the “controversial quarry wall they owned from collapsing”, which caused the catastrophic flood that devastated Grantham and killed 12 people.
None of the defendants gave evidence or tendered documents about their pre-broadcast inquiries and the information they had in their possession which either supported or contradicted the allegations made in the program about the source of the wave of water that the program alleged emanated from the quarry, devastated the town of Grantham and killed 12 people.
The evidence tendered by the Wagners includes a transcript of an interview between Mr Cater and Mr Graham Besley, who lived near the quarry and who, with his wife, was caught in the flood. This interview was conducted prior to 7 March 2015 because
Mr Cater included a quote from Mr Besley, which is recorded in the transcript, in an article published in The Australian on 7 March 2015. In the interview, Mr Besley said that he “saw a wave of water coming overland”, and then turned and ran. Importantly, the following exchange had occurred in the interview:
“Nick:                  A wave of water coming overland?
Graham:           Yep.
Nick:                  From the Helidon direction behind the quarry?
Graham:           Yes. From the Helidon direction behind the quarry.”
Soon afterwards, the further exchange clarifies Mr Besley’s evidence:
“Nick:                  Water from the bend in the river?
Graham:           When I saw it, it was coming overland.
Nick:                  The bend by the quarry?
Graham:           No, further back.”
In short, Mr Besley’s evidence contradicted the allegations contained in the 60 Minutes program, including Mr Cater’s allegation, that water steadily built up behind the quarry wall, which then burst, causing a wall of water to escape and engulf Grantham. The wave of water that Mr Besley saw came overland from the direction of Helidon behind the quarry.
The producers of 60 Minutes were in possession of the transcript of Mr Cater’s interview with Mr Besley. They received a copy of the interview by email from Mr Cater on
14 April 2015, more than a month before the broadcast. The Nine Network defendants give no explanation as to why they did not refer in the program to Mr Besley’s eyewitness account, which contradicted the Cater theory. In oral submissions, senior counsel for the defendants invited me to consider the transcript of an interview which Mr Cater conducted with Mr Thomas Friend. The relevant part of it refers to a lot of water coming from the mountains, that water was rising quickly, particularly in the vicinity of a bridge on the Flagstone Creek Road, but that Mr Friend did not see “a wall of water hit it”. Instead, the water there rose steadily.
I am unable to understand how this interview with Mr Friend assists the Nine Network defendants to justify the omission of Mr Besley’s eyewitness account. It seems to establish little more than that Mr Friend did not see the wall of water which Mr Besley did and about which he told Mr Cater. If, however, Mr Friend’s observations contradicted the observations of Mr Besley, then the proper thing for the Nine Network defendants to do was to include the competing versions in the program or simply wait for the Commission of Inquiry to examine the evidence of eyewitnesses and to ascertain the truth of the matter.
During the trial before me, senior counsel for the defendants put to Mr John Wagner that Mr Cater gave evidence at the Harbour Radio trial about his reasons for not including the contents of Mr Besley’s interview in another publication. I do not regard this as satisfactory evidence to explain the Nine Network defendants’ omission of the Besley evidence. First, it is not admissible evidence at this trial of Mr Cater’s reasons. As noted, Mr Cater gave no evidence and nor did any other witness give evidence on behalf of the defendants. Next, Flanagan J in the Harbour Radio proceeding was not required to make findings in relation to Mr Cater’s conduct in ignoring, overlooking or discounting
Mr Besley’s evidence and, in any event, those findings would not be admissible in this proceeding. Although Mr Cater was a defendant in the Harbour Radio proceeding, he was sued only in respect of one cause of action. The Wagners in that case failed to establish that Mr Cater was liable for that imputation. Justice Flanagan found that
Mr Cater neither expressly nor impliedly agreed with or adopted Mr Jones’ words which conveyed that imputation, and that he did not “conduce to the publication of the words spoken by Mr Jones” which conveyed that imputation.[5] As Mr Cater was only sought to be made liable for a single imputation in relation to one broadcast, the Wagners’ claims against him were dismissed.[6] Therefore, no occasion arose for Flanagan J to consider
[5]Harbour Radio at [192].
[6]At [172]–[193].
Mr Cater’s conduct in general or in relation to the Besley interview in particular.
Incidentally, to the extent that the defendants in this matter rely upon the eyewitness account of Mr Friend, he was not among the 15 eyewitnesses who gave evidence before Flanagan J. Further, Flanagan J concluded that the evidence of the eyewitnesses did not support “the existence of a devastating surge caused by the breaching of the bund”. Their evidence was said to be consistent with “an unprecedented volume of floodwater flowing down the Lockyer Valley, across the flood plain at Grantham.”[7]
[7]At [599].
In summary, Mr Besley’s evidence, which was available to both the Nine Network defendants and to Mr Cater, did not support the allegation made by the 60 Minutes program and the allegation made by Mr Cater in that program that a wall of water which engulfed Grantham and killed 12 people was caused when the Wagners’ quarry wall burst. The failure of the Nine Network defendants to refer to this evidence in the 60 Minutes program was unreasonable. It was unreasonable, improper and unjustifiable to report that eyewitnesses told a “consistent” story which supported the allegation made in the program and by Mr Cater that the quarry wall breached like a burst dam, causing a giant wave or wall of water to hit Grantham.
In the absence of any evidence from Mr Cater to explain himself, it also was unreasonable for him to not acknowledge in his interview with 60 Minutes that his version of events was not supported by Mr Besley’s eyewitness account.
On a related topic, the defendants did not seek to rely upon any expert evidence that was in their possession at the time of the 60 Minutes program (or, indeed, any expert evidence). This includes the hydrology report which the 60 Minutes program said Mr Cater commissioned for The Australian newspaper. Part of the Wagners’ case in support of their claim for aggravated damages is that the defendants were recklessly indifferent to the truth or falsity of the imputations. Part of the pleaded case is that the defendants had in their possession material, including the hydrology report of DHI Water and Environment Pty Ltd dated February 2015, obtained by Nationwide News Pty Ltd. It is sufficient for present purposes to note that the defendants do not suggest that the report supported the allegations made by them and the imputations which were published about the Wagners. If that report had supported their position then one might have expected their evidence to rely upon it. No attempt was made by the defendants to rely on it or on any other evidence which supported the imputations they conveyed. No attempt was even made to cross-examine the Wagners about the contents of that report.
As to the Nine Network defendants, there is no evidence of proper inquiries being undertaken by them, or on their behalf, before the broadcast. There is no evidence of their undertaking inquiries which were reasonably required to support the making of the serious allegation that the Wagners’ quarry caused the disaster in Grantham, let alone that the quarry wall breached because of “the failings of men” who were unnamed at that precise point in the broadcast but reasonably identifiable by viewers as the Wagners.
The carelessness of the Nine Network defendants in not verifying the truth of the central and serious allegation made in the program about the Wagners’ quarry is extreme. It is compounded by their possession of the evidence of Mr Besley which undermined their story about the source of the wave of water. Their carelessness is evidenced by the lateness of any approach to the Wagners, and the fact that the central allegation in the story had already been adopted and publicised by the time that approach was made. Even when the Wagners were approached, they were not given a reasonable opportunity to respond to the specific allegations contained in the story.
The Nine Network defendants were careless with respect to the truth or falsity of the key allegation in the 60 Minutes story that the quarry wall burst, sending a wall of water through Grantham. This allegation was an extremely serious one. It was inconsistent with independent expert evidence given to the previous Commission of Inquiry and its findings. The contention that the first Commission of Inquiry was wrong and that there was a “missing hour” was not supported by information which was available to the Nine Network, but not retrieved by it prior to the broadcast, being the Skytrack information. The correctness or otherwise of the key allegation made in the 60 Minutes story about the Wagners’ quarry was about to be forensically tested by a second, independent Commission of Inquiry, chaired by a highly-regarded QC. It would have been prudent and reasonable to await the public hearings of that Commission of Inquiry, including its examination of eyewitnesses and experts.
I conclude that the Nine Network defendants’ lack of care in ascertaining the truth before publishing such a serious allegation about the Wagners’ quarry was unjustifiable or improper.
Should it be necessary to additionally find that the Nine Network defendants were recklessly indifferent as to the truth or falsity of the imputation concerning the cause of the Grantham disaster, then I would do so. As noted, the Nine Network defendants’ conduct was careless in the extreme. The relevant imputation was not simply one about the physical cause of the flood. The disaster was said to be due to the “failings of men”. An ordinary reasonable viewer of the program might readily conclude that it meant that the Wagners’ quarry caused the flood and that the Wagners failed to take steps that they should have to prevent their quarry wall from collapsing. The Wagners and their quarry wall were the target of the program. The terms of the preview published in TV Tonight is some evidence of this.
The inference that the defendants, including the Nine Network defendants, were recklessly indifferent as to the truth of the imputations which their publications conveyed about the Wagners and their quarry wall can more readily be drawn from the fact that none of the defendants has given evidence to refute the inference.[8] No explanation has been given as to why relevant witnesses were not called by the defendants. I infer, in the circumstances, that their evidence would not assist them to explain or defend their conduct in relation to the broadcast (or their post-publication conduct).
[8]Jones v Dunkel (1959) 101 CLR 298.
I conclude that the Nine Network defendants were recklessly indifferent to the truth or falsity of the defamatory imputations which were conveyed by the 60 Minutes program.
The Wagners’ submissions invited me to also conclude that the defendants intended to convey those imputations or substantially similar imputations. The defendants resist this and note that such an intention was not specifically pleaded. Whereas the Wagners asserted in their pleadings that the defendants were recklessly indifferent to the truth or falsity of the imputations, they did not specifically plead that the defendants intended to convey those imputations. The fact that the Wagners intended to allege at the quantum trial before me that the defendants intended to convey the imputations was apparent from their preliminary written submissions which were provided to the defendants the week before the trial. However, the relevant intention was not specifically pleaded and therefore I do not consider it appropriate to make a finding on that matter.
The Wagners did, however, plead that the defendants were recklessly indifferent to the truth or falsity of the imputations. This allegation was pleaded in their reply filed 6 September 2018. It was relied upon both in answer to substantive defences which were then pleaded and in further support of their claim for aggravated damages on the basis that the conduct was improper, unjustifiable or lacked bona fides. The appropriate course would have been to incorporate, if necessary by cross-reference, the same allegations in the plaintiffs’ statement of claim. However, the defendants themselves pleaded in general terms that “the circumstances in which it is proved that the publication of the matters complained of was made” were relevant to damages. The Wagners’ allegations concerning the circumstances of the publication were raised both in their statement of claim and by way of reply. These include the defendants’ alleged recklessness, that the defendants failed to attempt to ascertain the true position with respect to the matter complained of and had no material which supported the allegations. Those allegations are relevant to the defendants’ claim that the circumstances in which the publication complained of was made were relevant to damages and in fact mitigated damages. The trial was conducted on the basis that the Wagners sought findings consistent with their pleadings in support of aggravated damages, which included the alleged recklessness of the defendants as to the truth or falsity of the imputations. The Wagners tendered, without objection, documents relating to the defendants’ pre-publication conduct and the information in their possession. The defendants did not apply at any stage to strike out any parts of the reply. In the circumstances, I have concluded that the Nine Network defendants were recklessly indifferent as to the truth or falsity of the imputations conveyed by the 60 Minutes program.
The circumstances of Nine’s publication of the defamatory matter
I turn to the broader question of whether the circumstances in which the Nine Network defendants published the matter complained of mitigated damages (as the defendants contend) or aggravated damages (as the Wagners contend).
For the reasons which I have given, I conclude that the Nine Network defendants’ conduct in publishing the matters complained of was unjustifiable or improper. The relevant circumstances include:
1.Their inadequate attempts to ascertain the true position with respect to the matters complained of, one example being their failure to retrieve and consider the Skytrack information prior to the broadcast.
2.Their possession of information which contradicted allegations contained in the program. This includes their possession of Mr Besley’s evidence, the statement from the Premier about the Wagners’ co-operation and the Wagners’ own statement issued on 21 May 2015 which confirmed their co-operation with the new Inquiry, that hydrological evidence was that their quarry did not cause or contribute to the flood and that they had not made any changes to creek banks. This information was not broadcast.
3.The fact that the defendants apparently did not have any hydrological evidence which supported their allegations at the time of the broadcast.
4.The Nine Network defendants’ belated and inadequate attempts to seek a response from the Wagners and their omission to include any part of the statement that was issued by the Wagners.
5.The content and tone of the program. As noted, the program did not purport to report allegations and responses to them. It asserted that the truth was as stated by Mr Cater and Mr Usher in the program. The tone of the program added to the seriousness of the allegations levelled against the Wagners. It included images of traumatised victims. The program included sombre music which added a sinister tone. It included an image of a Wagners hard hat which had been left at the abandoned quarry.
6.The program as a whole was apt to arouse understandable sympathy for the countless victims of the Grantham disaster, including Mr Warburton and Ms Keep. It also was apt to arouse animosity towards those who had caused that loss and the devastation of Grantham. That loss and devastation was said to be due to the “failings of men”, and the program unjustifiably implicated the Wagners in that allegation.

I conclude that the circumstances of the publication by the Nine Network defendants of the 60 Minutes program and the defamatory matter conveyed by it were unjustifiable or improper. They are such as to warrant an award of aggravated compensatory damages.[9]
[9]Defamation Act 2005 (Qld), s 35(2).
In addition, insofar as the findings with respect to the Nine Network defendants concern those defendants’ state of mind at the time of publication, including a reckless indifference to the truth or falsity of the imputations it conveyed about the Wagners, that state of mind affects the harm sustained by each plaintiff. The Wagners were aware at the time of the broadcast of Nine’s inadequate inquiries, of 60 Minutes’ adoption of the ill-founded Cater theory and that the allegations were inconsistent with independent, reliable expert evidence presented at the first Commission of Inquiry. The Wagners knew of the falsity of the imputations. The recklessness of the Nine Network defendants in making the allegations which they did was known to the Wagners at the time of the publication, and they continue to know of it.
The harm, including the hurt and distress suffered by the Wagners, has been aggravated by conduct which unfairly and recklessly conveyed the three imputations. The reckless indifference of the Nine Network defendants to the truth or falsity of the defamatory imputations at the time of the broadcast has affected the harm sustained by each plaintiff.[10]
[10]Defamation Act 2005 (Qld), s 36.
The circumstances of Mr Cater’s publication of the defamatory matter
The Wagners rely upon the conduct of Mr Cater before, at the time of and after the 60 Minutes program in support of an award of aggravated compensatory damages against him. They rely on what is pleaded to be Mr Cater’s “relentless campaign of vilification” against them. They dispute that Mr Cater honestly held any opinions contained in the matter complained of, and say that he was actuated by malice in publishing the defamatory matter.
It is convenient to deal at this point with the conduct of Mr Cater with respect to the matter complained of and to defer consideration of his and the other defendants’ post-publication conduct. In doing so, I am conscious that malice in the making of a defamatory statement may be inferred by conduct, including malicious conduct, which occurs before and after the publication. My present concern, however, is not so much with Mr Cater’s alleged malice as with whether the circumstances of his publication of the defamatory matter is such as to warrant an award of aggravated damages.[11]
[11]Defamation Act 2005 (Qld), s 35(2). In doing so I do not intend to take an unduly narrow view of what is meant by the word “circumstances” in s 35(2). It is not limited to the precise time of publication.
The Wagners’ pleading in support of their claims for aggravated compensatory damages include allegations about Mr Cater’s alleged “relentless campaign of vilification” against each of them. It relies on earlier stories written by him which referred to the Wagners and had as their central theme that the cause of the deadly and catastrophic flood that destroyed Grantham and killed 12 people was the breaching of the wall at the Wagners’ quarry. The Wagners’ pleading also refers to “the vicious and gratuitous words” used by Mr Cater in asserting, promoting and publicising this theme in the 60 Minutes broadcast, and the assistance which he offered and provided to the Nine Network defendants in producing the program. In addition to the allegations in paragraph 24 of their further amended statement of claim, the Wagners unconventionally supplement their case for aggravated damages in their reply. In that context they plead a number of matters against Mr Cater, including his campaign against them, his failure to make adequate inquiries of them or other persons who could have informed him of the falsity of the defamatory imputation which his words conveyed and his failure to make contact with the Wagners to ascertain their responses to the allegations made by him.
The defendants’ pleaded response to the matters contained in paragraph 24 of the further amended statement of claim is as follows:
“24. As to paragraph 24 of the Statement of Claim, the Defendants deny the allegations therein and deny that the Plaintiffs are entitled to the relief claimed for the reasons set out in paragraphs 18 and 19 of this Defence and by which liability to the Plaintiffs is denied and further, because to the extent there are allegations against the conduct of the defendants set out therein, their conduct was not such as to have aggravated the harm suffered (which is denied in any event) and to give rise to a claim for aggravated damages.”
Paragraphs 18 and 19 of the defence contained denials that the matters complained of conveyed the imputations pleaded about the Wagners.
While paragraph 24 of the second further amended defence filed on 1 August 2019 purported to deny the allegations contained in paragraph 24 of the Wagners’ pleading, contrary to the Uniform Civil Procedure Rules 1999, it contained no explanation for that denial. As a result, the allegations are deemed to have been admitted.[12] In their reply the Wagners adopted the deemed admissions contained in the defence.
[12]Uniform Civil Procedure Rules 1999 (Qld), ss 166(4)-(5).
The failure of the defendants to engage in their pleading with the specific allegations contained in paragraph 24 of the Wagners’ pleading is unexplained. The defendants’ senior counsel was unable to explain why the allegations against the defendants in paragraph 24 were not the subject of appropriately pleaded denials. The failure to comply with the pleading rules was not said to have been a mistake or oversight. The defendants did not apply to withdraw any deemed admissions. The defendants seemingly were content to proceed to trial on the basis that the conduct alleged against them in paragraph 24 was the subject of deemed admissions which would not arise for consideration if they persuaded the jury that the defamatory imputations were not in fact conveyed. Otherwise, their defence was that their alleged conduct was not such as to have aggravated the harm suffered by the Wagners and to give rise to a claim for aggravated damages. Their pleaded defence is to the effect that their conduct (which is deemed to be admitted) did not meet the legal threshold of being conduct which is improper, unjustifiable or lacking in bona fides.[13]
[13]Triggell v Pheeney (1951) 82 CLR 497 at 514.
Despite this, the defendants’ submissions contest some of the factual assertions contained in paragraph 24 of the Wagners’ pleadings, for example, that Mr Cater engaged in a “campaign of vilification”. I am prepared to consider the parties’ competing arguments about Mr Cater’s conduct in connection with the 60 Minutes program and his other conduct rather than hold him and the other defendants to their deemed admissions. The Wagners did not rely simply upon the making of deemed admissions. The defendants’ plea in mitigation referred in general terms to the circumstances of the publication. I have allowed the Wagners some latitude in unconventionally pleading part of their case on aggravated damages in their reply without an amendment to incorporate those matters in paragraph 24.
The Wagners rely upon what is said to be Mr Cater’s “relentless campaign of vilification” of them prior to and after the 60 Minutes broadcast. They contend that his involvement in the 60 Minutes program was not a “once-off occurrence”, but was part of a malicious agenda. They place particular reliance on the fact that Mr Cater has never approached or contacted any of the Wagners about any of the publications he has made about them or their quarry.
The Wagners point to stories published on different dates, authored by Mr Cater, in
The Weekend Australian, The Australian and The Spectator Australia. It is unnecessary to survey their contents. In short, they assert, in one form or another, that a breach of the wall at the Wagners’ quarry caused the flood which resulted in the deaths of 12 people. The article in The Spectator Australia was the subject of proceedings which were settled.
The defendants submit in response that these previous articles do not provide a basis for an award of aggravated damages. I do not agree with their submission that the previous articles are “moderate in tone”. However, I would not regard them as prior conduct which would justify an award of aggravated compensatory damages. They simply show that Mr Cater’s participation in 60 Minutes was part of a campaign by him.
Next, and despite the deemed admission that Mr Cater used “vicious and gratuitous words” in his interview with 60 Minutes, I would not regard his language as so excessive as to exhibit malice. His language is consistent with an honest belief in the truth of what he said. That said, there is no direct evidence that Mr Cater had an honest belief that this was a “man-made disaster that should have been avoided but wasn’t”, or a belief in the truth of the imputation which his words conveyed about the Wagners.
The defendants make no submission in response to the Wagners’ case that, throughout his public campaign of publishing articles about their quarry and its role in the Grantham flood, Mr Cater failed to make any contact with them to ascertain their responses to his allegations. That Mr Cater did not contact any of the plaintiffs about the matters he wrote and spoke about is extraordinary, given his role as a journalist. In one article he wrote that the newspaper which he wrote for had been investigating the cause of the Grantham flood for more than 18 months. In the context of malice, a failure to inquire as to the truth of a statement or to try to verify it may be so extreme that the defendant cannot be regarded as believing his statement to be true. Where a party deliberately stops short in his inquiries in order not to ascertain the truth, a court may infer malice. In the present context, Mr Cater’s unexplained failure at any time prior to the 60 Minutes broadcast to inquire of the Wagners is some evidence of “wilful blindness, or of an obstinate adherence to an opinion”.[14] A reckless indifference to the truth or falsity of defamatory statements may evidence malice.[15] In addition, and relevantly for present purposes, it may be improper or unjustifiable conduct for the purpose of awarding aggravated compensatory damages.
[14]Clark v Molyneux (1877) 3 QBD 237 at 248.
[15]Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 209-210.
The Wagners also rely in their case for aggravated damages against Mr Cater on the fact that he had material available to him, particularly the interview with Mr and Mrs Besley, which suggested that the wave of water did not start at the quarry. I have earlier remarked upon the fact that this interview was in the possession of 60 Minutes and that its contents undermined the assertions made by Mr Cater and the Nine Network defendants in the program. The defendants make three responses to the criticism levelled at Mr Cater in respect of his knowledge of the evidence of Mr Besley.
The first response is that Mr Besley’s interview was one of a number of transcripts provided to the Nine Network and that it is apparent that Mr Cater had spoken to a number of flood survivors. The submission is made that he “plainly believed” that the totality of the evidence supported the conclusion that the collapse of the quarry wall substantially affected the flood. In the absence of evidence from Mr Cater about his beliefs and the basis for them and, in particular, his reasons for disregarding the evidence of Mr Besley which conflicted with the thesis Mr Cater advanced, I decline to find that he “plainly believed” that the evidence supported his case. His interview on 60 Minutes suggested that all of the eyewitness accounts were consistent and supported his thesis, when he must have known that Mr Besley’s evidence did not. Even if Mr Cater sincerely believed in the things he said in the 60 Minutes interview, his unexplained failure to account for
Mr Besley’s evidence supports the view that he was wilfully blind or unjustifiably obstinate in his opinion.
The second response in the defendants’ submissions is that the fact that Mr Besley saw a wall of water coming from “behind the quarry” does not, by itself, mean that the quarry did not play a role, even a critical role, in the flood. However, for the reasons previously canvassed, Mr Besley’s evidence that a wall of water came from behind the quarry is inconsistent with the Cater thesis that the wall of water only emerged once the quarry wall burst.
The third argument is that if Mr Cater had wished to bury Mr Besley’s account, then he could simply have not included it with the statements he provided to 60 Minutes. The fact that he did include it is submitted to be inconsistent with behaviour that is improper, unjustifiable or lacking in bona fides. In my view, the proposition that Mr Cater could have acted very badly in not providing Mr Besley’s statement to 60 Minutes does not mean that his conduct with respect to Mr Besley’s evidence was proper. There is no evidence that Mr Cater pointed out to 60 Minutes that Mr Besley’s statement did not support, and in fact contradicted, his argument. The defendants disclosed a version of the interview which had been annotated with handwriting. No witness gave evidence about the circumstances in which that part of the document came to be circled. There is no evidence about what Mr Cater said to the producers of 60 Minutes, if anything, about
Mr Besley and his statement. As far as I can discern, the other transcripts of interviews do not contradict Mr Besley’s evidence.
The Wagners rely upon the Besley interview to submit that it is apparent that Mr Cater was willing to selectively deploy material from an interview which suited his theory and to completely disregard material from the same interview which contradicted it. They point to a passage from Mr Cater’s article in The Australian dated 7 March 2015 which includes the part of Mr Besley’s interview in which he refers to “a wave of water coming overland”, but omits the fact that the wave of water was coming from behind the quarry. Mr Cater’s selective reporting in the face of contradictory statements is submitted to be “wholly improper and entirely unjustifiable”. Mr Cater did not suggest in the 60 Minutes interview, or elsewhere, the alternative theory, supported by Mr Besley’s evidence, that a wave of water came from behind the quarry and from a source other than the quarry.
The Wagners also rely upon Mr Cater’s pre-publication conduct in advancing himself to be interviewed on the program and his offer to give “a good, colourful, descriptive grab”. The Wagners submit that this is evidence of his malice. I do not agree. Mr Cater’s enthusiasm to appear on 60 Minutes is consistent with a continuation of his campaign and is not necessarily evidence of malice towards the Wagners.
The defendants’ submissions point to parts of Mr Cater’s interview with 60 Minutes which were not aired. He declines to answer Mr Usher’s question “What liability should Wagners wear for the collapse of that quarry wall?” saying that Mr Usher would need to ask a lawyer. The defendants submit that his reluctance to give an opinion about whether the Wagners were either criminally or civilly responsible for the problems with the quarry wall might be contrasted with the conduct of Mr Jones in the Harbour Radio case that was identified as aggravating. I consider it unhelpful to compare Mr Cater’s conduct in connection with the 60 Minutes interview with Mr Jones’ conduct in another medium. In my view, the exchange between Mr Usher and Mr Cater, which was not aired in the 60 Minutes program, simply shows Mr Cater to be astute to not express a view about the Wagners’ legal liability, saying that was a question for lawyers.
The substantial point remains that Mr Cater was prepared to write in articles and to be interviewed by 60 Minutes about the wall at the Wagners’ quarry and to attribute its collapse as the cause of the death and destruction which occurred in Grantham. In the 60 Minutes interview he referred to a “man-made disaster that should have been avoided but wasn’t”. He must have understood that the program was to be about the Wagners’ quarry and that many viewers of the program would know, or would be told by the program, that the quarry wall was owned by the Wagners and that they operated the quarry. It is untenable to suggest that his words could not be interpreted as attributing responsibility to the Wagners for a disaster that should have been avoided.
Mr Cater asserted on 60 Minutes that the quarry wall:
“…was built to stop the quarry flooding because the quarry was in the bend in the river, so if the river flooded, the quarry would get flooded”.
This statement was not true. The evidence is that the wall was built as a safety bund and never served the purpose of retaining water.
Mr Cater’s failure to make any inquiry of the Wagners in the course of publishing articles about the quarry and before being interviewed by 60 Minutes about the quarry wall was unreasonable and unjustifiable. It led to him making a factual error about the building of the quarry wall and, more seriously, statements which imputed that the Wagners failed to take steps that they should have to prevent their quarry wall from collapsing, causing a devastating wall of water to destroy the town of Grantham.
In summary, Mr Cater’s interview with 60 Minutes was part of a campaign by him to implicate the Wagners’ quarry as the cause of a man-made disaster which killed 12 people and devastated the town of Grantham in a wall of water. The conclusions which Mr Cater expressed on 60 Minutes were presented as being the results of extensive investigation, supported by the testimony of eyewitnesses. However, without any apparent justification, Mr Cater did not contact any of the Wagners about the allegations he made about their quarry (and by implication about them). He disregarded Mr Besley’s evidence which undermined his theory. Mr Cater knew that the focus of the 60 Minutes program was to be on the Wagners’ quarry wall. His assertion that this was a “man-made disaster that should have been avoided but wasn’t” and the other assertions which he made about the quarry wall in the 60 Minutes interview were likely to implicate the Wagners and their quarry as the cause of the disaster. Mr Cater’s failure to make any inquiry of the Wagners and his unexplained disregard of Mr Besley’s evidence were unjustifiable or improper. I conclude that the circumstances of the publication of the defamatory matter by Mr Cater involved unjustifiable or improper conduct by him. They are such as to warrant an award of aggravated compensatory damages.
Post-publication conduct by the defendants
Failure to correct, retract or apologise
A correction typically relates to a factual assertion, express or implied. It may correct an assertion of a specific kind, for example, that the Channel Nine helicopter records proved that there was a “missing hour”. The correction may relate to an assertion of a more general kind, for example, that a wall of water or a tsunami was released when the quarry wall burst, or that the quarry wall was responsible for the flood that devastated Grantham and killed 12 people. In the four and a half years following the 60 Minutes broadcast, no correction has been published by the Nine Network defendants on their network in which they correct any factual assertion of any kind. Instead, an “apology” was stated in Court by their senior counsel shortly after the jury verdict was returned. I will return to that “apology”.

I note that the parties’ submissions on these points did not seek to argue that the issue should be considered in the context of s 38 of the Act as involving a matter of “mitigation of damages”. They might have framed the issue in terms of s 38(1)(d) on the basis that each plaintiff had brought a proceeding against, for example, Mr Cater, for damages for defamation “in relation to any other publication of matter having the same meaning or effect as the defamatory matter” for which damages were sought against the Nine Network defendants. However, s 38(1)(d) simply makes evidence of the bringing of that proceeding admissible “in mitigation of damages”. It does not suggest how account should be taken of it.
I also note that s 38(1)(c) is concerned with a case in which the plaintiff “has already recovered damages” for defamation in relation to another publication having the same meaning or effect as the defamatory matter. This section is not engaged, or at least is not clearly engaged, by a case in which damages are awarded, but have not been “recovered”, and may not be recovered in whole or in part. The use of the word “recovered” suggests that the section is concerned to avoid double recovery of compensation for the same loss.
The parties accept that this is not a case in which the Wagners sued the defendants as joint tortfeasors. They sued the Nine Network defendants over the whole of the 60 Minutes program, and sued Mr Cater for the republication of his words in part of that program. They sue Mr Cater in respect of a different cause of action. The first imputation which the 60 Minutes program as a whole conveyed was not only conveyed by Mr Cater’s words. It was conveyed by things that Mr Usher said in the program and other things broadcast in the program, such as the images of and the report of the death of Ms Keep’s baby daughter. Nevertheless, all defendants are being held liable for the broadcast of Mr Cater’s words on 60 Minutes. Those words conveyed a serious imputation which has a substantial overlap with the first imputation upon which the Wagners succeeded against the Nine Network defendants.
The defendants did not seek contribution or indemnity against each other. They did not seek an apportionment by way of contribution pursuant to statute[128] for what they might have contended to be the same damage sustained by a plaintiff by the broadcasting of Mr Cater’s words. This is not a case in which the defendants, recognising that there should be separate judgments against the Nine Network defendants and against Mr Cater, have sought orders for the apportionment between them of compensation for a common loss. Had they done so, and separate judgments been awarded in favour of the plaintiffs in respect of damages which included the same loss, then it would have been possible to frame consequential orders of a kind commonly made where there is an apportionment. Orders may provide that a defendant who has paid the judgment in full is entitled to be paid a stated contribution by the other defendants so as to apportion damages for the same loss. The orders allow the plaintiff to attempt to recover, if he or she can, the separate judgments that have been awarded, but are worded to avoid double recovery by the plaintiff of the same loss.
[128]Law Reform Act 1995 (Qld), ss 6(1)(c), 7.
I am not persuaded by the Wagners’ submissions that the notional “overlap” in respect of the Cater words is a matter of small significance in the assessment of damages. It is a matter which creates a potential problem of double recovery. It cannot be downplayed, even in circumstances in which the defendants have not sought an order provided for by statute for apportionment as between them of an identified part of the damages awarded which involve the same damage.
Also, I am not persuaded by the defendants’ submissions that I can and should make an “apportionment” in the way they suggest. The hypothetical example was given in oral submissions of a global award of $400,000 (leaving aside aggravated damages) with $200,000 of it relating to the deaths in Grantham. Of that $200,000, $100,000 would be awarded against the Nine Network defendants and $100,000 against Mr Cater. The result, before awarding aggravated damages, would be judgments for $300,000 against Nine and for $100,000 against Mr Cater.
The defendants do not identify a statutory or other legal basis for that kind of apportionment. This is not a case in which the legislature has taken the significant step of introducing a scheme of proportionate liability amongst defamation defendants.[129] The effect of the suggested apportionment would be to reduce the liability of the Nine Network defendants for damages for which they are legally liable. It also would reduce Mr Cater’s liability for the damages assessed in respect of the broadcasting of his words.
[129]Compare the proportionate liability scheme for certain kinds of proceedings in the Civil Liability Act 2003 (Qld).
Absent an identified legal basis to do so, an apportionment of the kind suggested by the defendants would have the same effect as proportionate liability legislation. It would shift from a defendant to the plaintiff the risk of another defendant’s insolvency, or the inability of another defendant to pay. It would displace the position whereby a defendant must pay the damages awarded against it and then attempt to recover a proportion of them from another defendant pursuant to an order for indemnity or contribution. There is no statutory mandate for such a displacement. I consider that it would be inappropriate to apportion damages in the way suggested.
The starting point is that the damages awarded against a defendant should reflect the amount necessary to vindicate reputation, repair harm to reputation and give consolation for personal distress and hurt in respect of the defendant’s wrongdoing. Reducing that sum so as to effect an informal apportionment between defendants has the potential to result in a plaintiff not being fully compensated.
In my view, the potential for double recovery with respect to loss caused by the broadcasting of Mr Cater’s words is not a sufficient reason to discount the amount which is properly awarded against each defendant for the damage caused by the publication for which that defendant is liable. It is not a sufficient reason to not award damages against the Nine Network defendants in an amount appropriate to vindicate reputation and compensate for loss caused by their broadcasting of the program and conduct by them which warrants an award of aggravated compensatory damages.
There is no evidence of any agreement between the Nine Network defendants and Mr Cater to contribute or indemnify for the amount of damages attributable to republication of his words on 60 Minutes. Also, there is no evidence that if I was, in effect, to split the amount of damages which might be assessed in relation to the broadcasting of Mr Cater’s words and, for example, order the Nine Network defendants to pay half of the relevant amount and Mr Cater the other half, that each plaintiff would be able to recover the amount awarded against Mr Cater.
To discount the amount to be awarded has the potential to:
(a)diminish the vindication achieved by a damages award against the Nine Network defendants for their reckless publication of the first imputation; and
(b) result in under-compensation.
There is a similar problem associated with, in effect, discounting what should be an appropriate award of damages against Mr Cater for his defamatory words.
I should not assume that there will be double recovery of some part of the respective judgments which involves the same loss.
Therefore, I propose to adopt the conventional approach to the awarding of damages against separate defendants who are sued over separate causes of action for different conduct which is alleged to have caused different harm, but which may involve some overlap. The approach is to award separate judgments. Each judgment will be for an amount which compensates the plaintiff for the damage caused to him by that defendant’s conduct, including conduct which has aggravated damages.
Four separate awards
I expect that some reporting of the awards given to each plaintiff will report the total amount of the four awards. The defendants do not argue that this feature should result in a reduction of the award made to each plaintiff because their collective reputations will be vindicated by reporting of the total amount, and such a large amount is more than necessary to vindicate each plaintiff’s damaged reputation. The defendants may not have argued this point because, arguably as a matter of principle, each plaintiff is entitled to be awarded what he would be awarded in a separate proceeding to vindicate his reputation and to compensate.
I am not constrained by the Harbour Radio decision to award more or less than the sums awarded by Flanagan J to each plaintiff. Other defamation awards in other cases do not set a benchmark. I must award an amount to vindicate each plaintiff’s reputation and to compensate him in an appropriate amount. If the total of their awards serves to vindicate their individual reputations and compensate them for the harms they have collectively suffered, then this is a function of four claims being joined in the one proceeding.
Assessment of damages
The 60 Minutes program and Mr Cater’s statements on it were extremely serious defamations of the Wagners. Those indefensible defamations were broadcast to a large viewing audience across Australia by an influential program. The story purported to be the product of investigative journalism and to reveal the truth.
The imputations which the program and Mr Cater’s statements conveyed about how the Wagners’ failings caused the death of 12 people and devastated the town of Grantham struck at the heart of the Wagners’ hard-earned reputations. So did the two other defamatory imputations conveyed by the program.
The defamations caused great harm to the Wagners. This includes the distress of fearing what people around the nation, including the thousands of people who they had met in business and in the general community, were thinking about them. It included the hurt and outrage at being the subject of reckless journalism and an apparent vendetta against them by Mr Cater.
The program must have caused substantial injury to the Wagners’ reputations for integrity and competence.
Some friends or close acquaintances of the Wagners were able to personally ask them after the 60 Minutes program questions like “How did you let this happen?”, and to receive whatever assurances the Wagners could give that the program and Mr Cater were wrong. The overwhelming majority of 60 Minutes viewers, both in the Wagners’ local community and across the nation, were not in that position.
The defendants have allowed the effects of their indefensible defamations of the Wagners to last for four and a half years.
The Wagners were not truly vindicated, and the violations of their legal rights by the defendants were not remedied, by the GFCI. There is no evidence that most viewers of the 60 Minutes program on 24 May 2015 received a report of the GFCI’s findings. There certainly was no report on 60 Minutes about the GFCI and how it discredited the Missing Hour program. After the GFCI, Mr Cater did not acknowledge that his allegations on 60 Minutes about the Wagners’ quarry had been proven to be wrong.
The Wagners were not properly vindicated in respect of the harm done by 60 Minutes and Mr Cater by media reporting of the Harbour Radio judgment. That judgment might have vindicated their reputations somewhat in respect of the damage done by the Alan Jones radio program. There was no report on 60 Minutes of the findings in the Harbour Radio judgment, coupled with a correction, retraction or apology.
Reporting of the GFCI findings in October 2015 (the extent of which is unproven by the defendants) and reporting of the Harbour Radio decision in September 2018 may have indirectly and incompletely vindicated the reputations of the Wagners in respect of allegations which were made by both the Alan Jones radio program and by 60 Minutes. However, Mr Jones did not publicly accept the correctness of the judge’s findings. On the day the Harbour Radio judgment was delivered a statement by Macquarie Radio canvassing the possibility of an appeal by Mr Jones against the judgment was reported in some media, including Nine News.
Whatever the Harbour Radio award did to vindicate reputation and mitigate harm, the award was for the injury caused by Mr Jones on his radio program, not the injury done by the Nine Network defendants and by Mr Cater on the 60 Minutes program. It did not compensate for the combined harm caused by the radio program and 60 Minutes. The overlap between listeners to Mr Jones’ program and viewers of 60 Minutes is unproven, and, given their respective audiences, only a small percentage of the viewers of 60 Minutes would have heard Mr Jones’ defamations of the Wagners.
I have admitted into evidence media reporting of the Harbour Radio decision. I will take account of the effect of the Harbour Radio decision in improving the Wagners’ reputations somewhat in the eyes of some 60 Minutes viewers. However, that effect is limited, particularly in circumstances in which 60 Minutes has not publicly accepted the correctness of the findings in the Harbour Radio decision and none of the defendants have publicly and clearly acknowledged the falsity of the allegations made about the Wagners on the 60 Minutes program and retracted the imputations they conveyed.
To this day, 60 Minutes has not carried even a brief correction, retraction or apology. Mr Cater’s post-publication conduct towards the Wagners also has been miserable.
Despite the recommendations of the New South Wales Law Reform Commission in 1995,[130] Australian statute law does not provide a remedy in the form of a declaration of falsity as a remedy for indefensible defamations. Damages are the remedy provided by law to “nail the lie”. Damages are intended to compensate for injury to reputation and to provide consolation for personal hurt and distress. The respective conduct of the Nine Network defendants and of Mr Cater in connection with the 60 Minutes broadcast and their respective post-publication conduct warrants awards of aggravated compensatory damages.
[130]New South Wales Law Reform Commission, Report No 75, Defamation, September 1995, Chapter 6.
The fact that the Wagners continue in business and seem to enjoy a good reputation in the circles in which they move on the Darling Downs is not a reason to make only a moderate award. The Wagners have the reputations which they enjoy, particularly on the Darling Downs, despite the damage done by the 60 Minutes program and the defendants’ conduct over the last four and a half years. The nature of the defamatory imputations conveyed about them and the extent to which they were broadcast must have injured their reputations around the nation.
The Wagners’ knowledge that families sit down on Sunday night to watch 60 Minutes and believe what it says added to their continuing hurt. The Wagners naturally feared what people would think about them after 60 Minutes and Mr Cater imputed that their failings caused the death of 12 people and devastated the town of Grantham. In addition, the 60 Minutes program imputed that the Wagners sought to conceal the truth from becoming known, and disgracefully refused to answer to the public for their failure to prevent their quarry wall from collapsing and causing the catastrophic flood.
Reputations for integrity and competence are hard earned. 60 Minutes and Mr Cater’s grave defamations struck at the heart of the Wagners’ good reputations and caused each of them enormous grief, anxiety and loss of self-esteem.
The defendants’ respective unjustifiable or improper conduct has aggravated the harm their defamations caused.
By any measure, the defamation of the Wagners by 60 Minutes and by Mr Cater ranks as an extraordinarily serious defamation. Being falsely accused of having failed to take steps that should have been taken to prevent their quarry wall from collapsing, causing the deaths of 12 people and the destruction of a town, is an extraordinarily serious defamation.
The program included vision of the inconsolable grief of a mother whose infant was taken from her arms in the flood. The deaths of that child and 11 others were attributed to the failings of the Wagners.
Each plaintiff is deserving of a substantial award of aggravated compensatory damages against the Nine Network defendants. He also is deserving of a substantial award of aggravated compensatory damages against Mr Cater.
I must ensure that there is an appropriate and rational relationship between the harm sustained by each plaintiff and the amount of damages awarded. In circumstances in which the defendants have not properly apologised and withdrawn the defamation allegations, the award must be sufficient to publicly proclaim that the defendants inflicted a serious injury. It must be sufficient to demonstrate to the public that each plaintiff’s reputation has been vindicated.
To reflect the gravity of the defamations, the extent of their publication and the distress and other harm caused to each plaintiff by the 60 Minutes program and the Nine Network defendants’ unjustifiable or improper conduct, I award each plaintiff aggravated compensatory damages against the first to fifth defendants in the sum of $600,000.
I should add that if I had accepted the defendants’ submissions about the effect of the cap and adopted the unconventional approach of separately assessing “pure compensatory damages” and “aggravated compensatory damages”, then the award against the Nine Network defendants would have been $400,000 (reflecting the most serious kind of defamation, and to approximate the statutory cap) for “pure compensatory damages”, with an additional $200,000 for aggravated compensatory damages.
Mr Cater is not responsible for the damage done by the second and third defamatory imputations broadcast by the 60 Minutes program or by any words other than the words which he spoke and which were broadcast on the program. His statements were gravely defamatory of the Wagners and were broadcast around the nation, as he must have expected. The injury to reputation and other harm caused by his statements have been aggravated by his unjustifiable or improper conduct. I award each plaintiff aggravated compensatory damages against Mr Cater in the sum of $300,000.
The appearance of a punitive award?
In the context of a submission as to why the statutory cap should operate as a “partial restraint” where an award of aggravated compensatory damages is to be made, the defendants made the following submission:
“The disproportionately high awards of damages in some recent cases where features of aggravation have been present (Harbour Radio; Rayney; Rush and Wilson), when compared to more moderate awards each bearing some comparability, create the appearance, it is respectfully submitted, of an exercise in punishing the defendants, and not just compensating the plaintiffs for the harm (even aggravated harm) suffered.”
The defendants’ submissions cite four media cases as involving “more moderate awards”.[131] In those cases there were awards of $300,000, $385,000, $300,000 and $300,000 respectively. It is unnecessary for me to canvass the detail of those four cases, none of which involved imputations comparable to those in the present case. Also, it is unnecessary to canvass the detail of the cases which the defendants submit involved “disproportionately high awards of damages”. A few things, however, should be said about them.
[131]Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091; O’Neill v Fairfax Media Publications Pty Ltd (No 2) [2019] NSWSC 655; Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838 and Pahuja v TCN Channel Nine Pty Ltd (No 3) [2018] NSWSC 893.

The submission that the awards in Harbour Radio were “disproportionately high” is interesting. The appellants in that case, represented by the senior counsel making the submission I have just quoted, did not appeal the quantum of those awards but appealed, unsuccessfully, another point. This does not tend to suggest that the awards were disproportionately high.
In any case, and to be clear, in making the assessments which I have, I did not use the awards made by Flanagan J as a starting point. I did not use them as a starting point and then adjust upwards because of the evidence of the greater influence of 60 Minutes, its higher audience numbers and its impact on the Wagners, before reducing that amount by way of mitigation pursuant to s 38 and taking account of the partial vindication of the Wagners’ reputations through publicity associated with the Harbour Radio decision. Instead, I arrived at what I consider is an appropriate figure for compensation which took account of both aggravating and mitigating factors.
Rayney involved a publication at a media conference by a senior police officer about the murder of the plaintiff’s wife. It involved an extremely serious defamation and there were circumstances of aggravation.
As for the defendants’ reference to the award in Rush, it would be inappropriate, indeed impertinent, to express a view as to whether the general damages awarded in that case were disproportionately high when the matter is the subject of a reserved appeal decision. It was an entirely different defamation. Wilson also was a very different case involving multiple publications to the effect that the plaintiff was a serial liar. Aggravated compensatory damages of $600,000 were awarded on appeal.
I put aside the defendants’ descriptions of “disproportionately high” and “more moderate” awards.
Any case in which a substantial award of aggravated compensatory damages is made may give the appearance of being an exercise in punishing the defendants. It is understandable that a defendant which is required to pay more than it otherwise would because its improper or unjustifiable conduct has increased the harm for which compensation is awarded might perceive that it is being punished for bad behaviour. Punishment is, however, not the function of an award of aggravated compensatory damages, even if the perception may exist that a punitive element lurks in many cases in which damages are aggravated by the defendant’s conduct.[132]
[132]Uren at 151-152; Carson at 107-108.
The awards which I have made are not an exercise in punishing the defendants. They seek to compensate for infringement of a legally protected right. In simple terms, it is the right to a reputation. However, that term does not recognise the variety of interests protected by the law of defamation, including by available defences. The right might be described as the right to a reputation not being infringed by an indefensible defamation. This means a reputation which deserves legal protection because the defamatory imputation is untrue and because the publication was not made in circumstances where the law allows a reputation to be harmed, without compensation, because of the public interest in freedom of communication.
Damages for an indefensible defamation are “substitutive for the right to a reputation infringed and are awarded even where no loss consequent upon the libel is proven”.[133] As Professor Stevens states, compensation can make good or eradicate a consequential economic loss, but it cannot eradicate certain other losses. Such damages are not therefore awarded “to eradicate such harm, but rather as the closest response the law can give to the wrong not having been committed in the first place”.[134] This reflects what was said by Windeyer J in Uren more than 50 years ago that:
“…a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed.”[135]
[133]Robert Stevens, Torts and Rights (Oxford University Press, 2007) at 62 (“Stevens”) citing Kiam v MGN Ltd [2003] QB 281 and Uren at 151.
[134]Stevens at 59.
[135]Uren at 150.
Compensation operates “as a vindication of the plaintiff to the public”.[136] This should not be confused with the controversial notion of vindicatory damages as a category of damages for certain rights or rights in general.[137] In a sense, any award of damages, including an award of nominal damages, may be said to vindicate a right which has been infringed. However, the tort of defamation purposively awards compensatory damages as a vindication of reputation and as consolation for a wrong done. It is a pocket of law in which vindicatory damages are awarded, even if they “have yet to be fully rationalised.[138]
[136]Ibid.
[137]Lumba v Secretary of State for the Home Department [2012] 1 AC 245; McGregor on Damages, ch 17; Kit Barker, ‘Private and Public: The Mixed Concept of Vindication in Torts and Private Law’ in Stephen G A Pitel, Jason W Neyers and Erika Chamberlain (eds), Tort Law: Challenging Orthodoxy (Bloomsbury, 2013) at 59-93.
[138]McGregor on Damages at [17-001], [17-011], [46,034] – [46,036].
The awards of aggravated compensatory damages which I have made are intended to operate in this conventional way, not to punish the defendants.
An award of compensatory damages may operate to deter the defendant and others from engaging in the same or similar conduct. An award of compensatory damages for defamation may deter irresponsible journalism. This is not its purpose. It may be a beneficial consequence.
Arguments by media organisations and others about large defamation awards having a deterrent effect and encouraging excessive self-censorship would seem to recognise that damages often serve not only as compensation, but also as an effective deterrent. This may have some validity.[139] Also, in jurisdictions in which exemplary damages may be awarded in order to punish and deter, the deterrent effect of a substantial award of aggravated compensatory damages is taken into account in an assessment of exemplary damages. Still, there are problems with seeking to justify the law of defamation or the law of torts in general as a means of deterring injury-causing conduct.[140]
[139]The Gleaner Co Ltd v Abrahams [2004] 1 AC 628 at 646 [53].
[140]Stevens at 321-322.
That an award of aggravated compensatory damages may deter irresponsible journalism and other bad conduct does not mean that this is its purpose. The awards of aggravated compensatory damages which I have made are not designed to provide some deterrent effect, even if this may be their consequence.
To conclude, the awarding of substantial aggravated compensatory damages to each plaintiff is not an exercise in punishing the defendants. It is an exercise in compensation for the unjustified infringement of a legal right. Damages in a case such as this operate as a vindication of the plaintiff’s reputation to the public and as consolation for a wrong done. This includes compensating for an increase in the harm suffered by the plaintiff because of improper or unjustifiable conduct by the defendants in defaming him and an increase in harm because of improper or unjustifiable post-publication conduct. The extent to which the awards of aggravated compensatory damages deter the defendants and others from engaging in such improper or unjustifiable conduct is a matter for others to debate.
The awards of damages are to compensate for the defendants’ indefensible infringement of each plaintiff’s legal rights and, in doing so, to publicly proclaim that the defendants’ conduct inflicted serious injuries. The injuries inflicted by the defendants’ defamations were made worse by their failure to properly apologise and withdraw the defamatory imputations. That unjustifiable conduct, which has aggravated harm, has continued to the date of this judgment. The sums awarded are intended to convince members of the public, who saw the 60 Minutes program or heard about it on the grapevine, that the defamatory imputations conveyed by it and by Mr Cater’s statements on it are baseless. They seek to compensate the Wagners, to the extent that money can, for the great harm that these indefensible defamations have caused.
Interest and costs
Each plaintiff seeks interest on the award of damages at three percent from 24 May 2015.[141] This is a period of four and a half years. The defendants do not make any submission about interest. Some part of each damages award arises from post-publication aggravating conduct, for example, the failure to correct, retract or apologise, particularly after the GFCI and after the Harbour Radio decision. Therefore, I am disinclined to award interest on the whole sum for the whole of the period. The main damage was done on 24 May 2015. Components of the judgment sum have not been awarded for specific aggravating conduct. Therefore, it is not possible to adopt a precise, mathematical approach. In exercising my discretion to award interest, I will award damages at three percent on the whole amount over a period of three and a half years.
[141]Cerutti at 120 [89], 121 [92].
I will hear the parties, if necessary, on the question of costs. Subject to any submissions, costs should follow the event. The defendants will be ordered to pay the plaintiffs’ costs of and incidental to the proceeding, including any reserved costs.
Judgment and orders
Judgment was entered by me on 6 September 2019 for damages to be assessed. I assess each plaintiff’s damages as follows.
Each plaintiff’s damages against the first to fifth defendants are assessed in the sum of $600,000. I award interest in the amount of $63,000.
Each plaintiff’s damages against the sixth defendant are assessed in the sum of $300,000. I award interest in the amount of $31,500.

CITATION:	Wagner & Ors v Nine Network Australia & Ors [2019] QSC 284
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:	22 November 2019
DELIVERED AT:	Brisbane
HEARING DATE:	6 September 2019 (Brisbane), 14 and 15 October 2019 (Toowoomba) Supplementary written submissions 28 October and 1 November 2019
JUDGE:	Applegarth J
ORDERS:	Each plaintiff’s damages against the first to fifth defendants are assessed in the sum of $600,000. Interest on damages to awarded in the amount of $63,000. Each plaintiff’s damages against the sixth defendant are assessed in the sum of $300,000. Interest on damages to awarded in the amount of $31,500.
CATCHWORDS:	DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – IN GENERAL – where a jury found that a 60 Minutes program imputed that the plaintiffs caused a man-made disaster and that the disaster was the result of their failing to take steps that they should have to prevent a quarry wall on property they owned from collapsing, causing a devastating wall of water to destroy Grantham and kill twelve people – where the jury found that the sixth defendant, an experienced journalist who featured in the program, conveyed a similar imputation by his words – where the program also was found to impute that the plaintiffs sought to conceal the truth about the role their quarry played in the flood and that the plaintiffs disgracefully refused to answer to the public for their failure to take steps to prevent the quarry wall they owned from collapsing and causing the flood – what award of damages should be given to each plaintiff against the Nine Network defendants and against Mr Cater DEFAMATION – DAMAGES – GENERAL DAMAGES - ASSESSMENT – SPECIAL MATTERS – AGGRAVATION – CONDUCT OF THE PARTIES – where the plaintiffs claim aggravated compensatory damages on the basis that the defendants engaged in conduct that was improper, unjustifiable or lacking in bona fides – where the defendants made inadequate attempts to ascertain the truth – where the defendants possessed information which contradicted allegations in the program but did not report it – where the defendants made belated attempts to seek a response from the plaintiffs and did not include in the program any part of a statement issued by the plaintiffs – where, despite the findings of a Commission of Inquiry which in October 2015 discredited the allegations in the program, the defendants pleaded a defence of justification for seven months, withdrawing it in November 2018 – where the defendants have failed to broadcast a correction, retraction or apology in the years following the program – whether the defendants engaged in conduct which was improper, unjustifiable or lacking in bona fides – whether there should be awards of aggravated compensatory damages against the Nine Network defendants and against Mr Cater DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – SPECIAL MATTERS – MITIGATION – where in September 2018 the plaintiffs received large awards of damages for numerous defamations, including substantially similar imputations, broadcast on a radio show – whether the previous awards and any public vindication achieved by reporting that decision should mitigate damages, and the extent of any such mitigation Defamation Act 2005 (Qld), s 19, s 35(2), s 36, s 37, s 38(2) Uniform Civil Procedure Rules 1999 (Qld), s 166(4), s 166(5) Adelson v Associated Newspapers Ltd [2008] EWHC 278 (QB); [2009] EMLR 10, cited Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, cited Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185, cited Barrow v Bolt [2013] VSC 226, followed Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674; [2018] VSCA 154, followed Broomev Cassell & Co Ltd [1972] AC 1027, cited Cairns v Modi [2013] 1 WLR 1015; [2012] EWCA Civ 1382, cited Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091, cited Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31, cited Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89; [2014] QCA 33, cited Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185, cited Choudhary v Martins [2008] 1 WLR 617; [2007] EWCA Civ 1379, cited Clark v Molyneux (1877) 3 QBD 237, cited Couch v Attorney-General [2010] 3 NZLR 149; [2010] NZSC 27, cited Crampton v Nugawela (1996) 41 NSWLR 176, cited Cripps v Vakras [2014] VSC 279, cited David Syme & Co Ltd v Mather [1977] VR 516, cited Davis v Nationwide News Pty Ltd [2008] NSWSC 693, cited Flegg v Hallett [2015] QSC 167, cited Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838, cited Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182, cited Harbour Radio Pty Ltd & Ors v Wagner& Ors [2019] QCA 221, cited Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161, cited Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; [2015] FCA 652, cited Jones v Dunkel (1959) 101 CLR 298, cited Lafone v Smith (1858) 3 H & N 735, cited Lewis v Daily Telegraph Ltd [1964] AC 234, cited Ley v Hamilton (1935) 153 LT 384, cited Lim Eng Hock Peter v Lin Jian Wei [2010] SGCA 26, cited Lower Murray Urban and Rural Water Corporation v Di Masi (2014) 43 VR 348; [2014] VSCA 104, cited Lumba v Secretary of State for the Home Department [2012] 1 AC 245, cited Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643, cited Mirror Newspapers v Jools (1985) 5 FCR 507, cited Nail v News Group Newspapers [2004] EWHC 647 (QB); [2004] EMLR 20, cited Murray v Raynor [2019] NSWCA 274, cited New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57, cited O’Neill v Fairfax Media Publications Pty Ltd (No 2) [2019] NSWSC 655, cited O’Shane v Fairfax Publications Pty Ltd [2002] NSWSC 807, cited Pahuja v TCN Channel Nine Pty Ltd (No 3) [2018] NSWSC 893, cited Pettiona v Nationwide News Pty Ltd [2019] FCA 1690, cited Praed v Graham (1889) 24 QBD 53, cited Purnell v Business F1 Magazine Ltd [2008] 1 WLR 1; [2007] EWCA Civ 744, considered Rayneyv Western Australia (No 9) [2017] WASC 367, cited Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729, cited Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, cited Siemer v Stiassny [2011] 2 NZLR 361; [2011] NZCA 106, cited Singleton v Ffrench (1986) 5 NSWLR 425, cited State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208, distinguished Tabbaa v Nine Network Australia Pty Ltd [2019] NSWCA 69, cited The Gleaner Co Ltd v Abrahams [2004] 1 AC 628; [2003] UKPC 55, cited The Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254, cited Thompson v Australian Capital Television Pty Ltd (1997) 129 ACTR 14, cited Timms v Clift [1998] 2 Qd R 100, cited Triggell v Pheeney (1951) 82 CLR 497, followed Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, cited Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201, considered Wagner & Ors v Nine Network Australia Pty Ltd [2017] QCA 261, cited Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58, cited Wilson v Bauer Media Pty Ltd [2017] VSC 521, cited
COUNSEL:	T D Blackburn SC, P J McCafferty QC and D Tay for the plaintiffs R J Anderson QC and M Richardson for the defendants
SOLICITORS:	Corrs Chambers Westgarth for the plaintiffs Macpherson Kelley for the defendants