Wagner v Nine Network Australia Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Wagner & Ors v Nine Network Australia Pty Ltd & Ors [2017] QCA 261

PARTIES:

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

FILE NO/S:

Appeal No 9199 of 2016
SC No 11789 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2016] QSC 198 (Boddice J)

DELIVERED ON:

3 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2017

JUDGES:

Morrison and Philippides and McMurdo JJA

ORDERS:

1.   The appeal is allowed.

2.   The orders of the primary judge striking out paras 18(a), 18(c) and 19(a) of the amended statement of claim are set aside.

3.   Unless the parties file submissions as to costs in accordance with Practice Direction 3 of 2013, paragraph 52(4), within 14 days of the publication of these reasons, the respondents are to pay the appellants’ costs of and incidental to the appeal and the application below.

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – PLEADING – QUEENSLAND – where the appellants brought a defamation action in relation to a 60 Minutes broadcast and a subsequent internet publication about the 2011 Grantham Floods – where the primary judge ordered that certain paragraphs of the appellants’ amended statement of claim be struck out on the basis that the imputations pleaded therein were incapable of arising – whether the pleaded imputations were capable of arising as a matter of law – whether the primary judge erred in exercising the discretion to strike out the paragraphs

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; [1998] NSWSC 4, applied
Favell & Anor v Queensland Newspapers Pty Ltd & Anor[2004] QCA 135, applied
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52, cited
John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; [2003] HCA 50, considered
Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 139; [2011] QCA 286, applied
Wagner & Ors v Nine Network Australia & Ors [2016] QSC 87, related
Wagner & Ors v Nine Network Australia & Ors (No 2) [2016] QSC 198, reversed

COUNSEL:

T D Blackburn SC, with P J McCafferty, for the appellants
R J Anderson QC for the respondents

SOLICITORS:

Corrs Chambers Westgarth for the appellants
Mark O’Brien Legal for the respondents

  1. MORRISON JA:  I have read the reasons of Philippides JA and agree with those reasons and the orders her Honour proposes.

  2. PHILIPPIDES JA:

    Background

    The appellants (the Wagners) have brought a defamation action against five media companies which form part of the…

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Details
Case
[2017] QCA 261
Decision Date

CaseChat Overview and Summary

Wagner and others brought a defamation action against Nine Network Australia and others in relation to a 60 Minutes broadcast and a subsequent internet publication about the 2011 Grantham Floods. The primary judge ordered that certain paragraphs of the appellants’ amended statement of claim be struck out on the basis that the imputations pleaded therein were incapable of arising. The appellants appealed this decision. The legal issues before the court were whether the pleaded imputations were capable of arising as a matter of law and whether the primary judge erred in exercising the discretion to strike out the paragraphs. The court found that the broadcast was capable of giving rise to imputations beyond that concerning the cause of the flood being attributable to the collapse of the quarry wall. It was also capable of conveying that the collapse of the wall which caused the flood was due to “man-made interventions and failings.” The statements that the deadly flood was a “man-made” intervention and that what occurred was “not just a freak flood but a man-made catastrophe that should have been avoided but wasn’t” were capable of being understood as conveying that someone was responsible and at fault for failing to ensure that the quarry wall did not collapse. Therefore, the court allowed the appeal and set aside the orders of the primary judge striking out the relevant paragraphs of the amended statement of claim. Unless the parties filed submissions as to costs in accordance with Practice Direction 3 of 2013, paragraph 52(4), within 14 days of the publication of these reasons, the respondents were to pay the appellants’ costs of and incidental to the appeal and the application below.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders of the primary judge striking out paras 18(a), 18(c) and 19(a) of the amended statement of claim are set aside.

3. Unless the parties file submissions as to costs in accordance with Practice Direction 3 of 2013, paragraph 52(4), within 14 days of the publication of these reasons, the respondents are to pay the appellants’ costs of and incidental to the appeal and the application below.

Background

Background to the litigation

The amended statement of claim filed contained the following paragraphs:“18.In its natural and ordinary meaning, the Broadcast and the Internet publication meant and were understood to mean (as separate imputations arising in respect of each plaintiff) that each of the first, second, third and fourth plaintiffs:(a)was responsible for the catastrophic flood which devastated the town of Grantham and killed 12 people, including an infant child, in that the enormous wall of his quarry burst, unleashing an unprecedented inland tsunami into the town;caused the deaths of 12 people, including an infant, as well as incomprehensible grief, trauma and devastation, by not taking steps that he should have taken to prevent a quarry wall on property he owned from collapsing and causing the catastrophic flood that devastated the town of Grantham;(b)despite being responsible for the catastrophic flood which devastated the town of Grantham and killed 12 people, tried to hide his responsibility.has sought to conceal the truth from becoming known about the role his quarry played in causing the catastrophic flood that devastated the town of Grantham;(c)has disgracefully refused to answer to the public for his failure to take steps that he should have taken to prevent a quarry wall on property he owned from collapsing and causing the catastrophic flood that devastated the town of Grantham.19.By reason of the matters pleaded at paragraphs 17 to 5, the words spoken by the sixth defendant referred to in paragraph 11(c) meant and were understood to mean (as separate imputations arising in respect to each plaintiff) that each of the first, second, third and fourth plaintiffs:(a)was responsible for the catastrophic flood which destroyed the town of Grantham and killed 12 people, in that the enormous wall at his quarry burst, unleashing the flood.caused the catastrophic flood which destroyed the town of Grantham and killed 12 people, by not taking steps that he should have taken to prevent a quarry wall on property he owned from collapsing.”Background facts The primary judge made the following observations concerning the broadcast as a whole:[3]“[24] A consideration of the broadcast as a whole supports a conclusion that the thrust of the broadcast was that the original Commission of Inquiry into the flood in Grantham failed to properly investigate the cause of the ‘torrent of water’ that swept through the town, resulting in its destruction and the loss of 12 lives. The broadcast posited that the torrent of water occurred as a consequence of the collapse of a quarry wall upstream from the town and that the flood was ‘a man-made catastrophe … that should have been avoided’”.[3]Wagner & Ors v Nine Network Australia & Ors (No 2) [2016] QSC 198 at [24]. The primary judge further stated:[4]“[25] Consistent with the thrust of the broadcast, the reporter asserted that whilst the source of the torrent of water should have been at the centre of the investigation, the Commission of Inquiry ignored first-hand accounts of the flooding and did not accurately record the timeline. The reporter asserted the Commission ‘got it flat wrong’. The broadcast posited the floodwaters had built up behind the quarry wall, which breached like a burst dam. The giant wave of water was a ‘man made intervention’.[26]The broadcast identified the quarry as being owned by the ‘Wagners’ at the time of the flood. Whilst the broadcast asserted the quarry wall was built to stop the quarry flooding, the broadcast did not assert the quarry wall had been constructed by the Wagners or during the time of the Wagners’ ownership. The broadcast did not attribute as a reason for the collapse of the quarry wall that it had been built inappropriately, deficiently or illegally. The broadcast gave no reason for the collapse of the wall, other than the build-up of flood water behind it.[27]Finally, the broadcast dealt with challenges to the findings of the original Commission of Inquiry and the establishment of a new Commission of Inquiry. The broadcast spoke of the questions to be answered, including the impact of the quarry. In this context, concerns were raised over the plans of Boral, the current owner of the quarry. Around this time the reporter said the ‘Wagners’ had declined to be interviewed for the programme. The broadcast also referred to fears steps may be taken to dismantle the remnants of the quarry wall which ‘could prove to be key evidence’.”The reasons of the primary judge[4]Wagner & Ors v Nine Network Australia & Ors (No 2) [2016] QSC 198 at [25]-[27].Paras 18(a) and 19(a) of the amended statement of claim:

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

As to the meaning at para 19(a) of the amended statement of claim, it was directed only at the words in the broadcast said by the sixth respondent. The respondents relied on the matters already mentioned relating to the use of the word “caused”. In addition, a meaning that the appellants caused the flood had to arise from only those words,[19] the height of which was, to the effect, that the collapse of the quarry wall caused the devastating flood. A fair consideration of them could not give rise to the conclusion that the sixth respondent was saying that the appellants caused the collapse of the wall and its after-effects. There was no doubt that the broadcast contended that it was the result of the collapse of the quarry wall that released the flood of water that was the cause of the devastation. That, however, as noted above, was a proposition quite different from the meanings alleged, which were to the effect that the deaths of 12 people in Grantham were the fault of the appellants.[19]Commencing at lines (leaving out immaterial passages) 52, 102, 121, 130, 141 and 205: see AB at 67-70.Consideration There is no dispute that the thrust of the broadcast was that the flood that devastated Grantham was not a natural consequence of the rain that had fallen in the previous 24 hours in the catchment area northwest of Grantham but was due to the collapse of the wall of a quarry owned by the appellants to the west of the town. Nor is it disputed that, in that regard, the broadcast asserted that the Inquiry overlooked “a crucial hour” that “explained what happened when the quarry wall burst sending a wall of water through Grantham” of a “force” that was “devastating, destroying”. The broadcast stated that the inquiry did not accurately record the timeline and dismissed concerns that a collapsed wall released a devastating wall of water. It was said that the “force and source of that wall of water” was not but should have been the centre of the investigations. A new Flood Enquiry to find out the truth about what happened would get answers to what the impact of the quarry was and where the large volume of water came from. The broadcast also asserted that the quarry wall was “controversial” and posed the question of why the wall was built, to which it provided the answer that it was built to stop the quarry, which was in a bend of the river, from flooding. It was asserted that the quarry wall was “an enormous dam wall that burst”. The wall was said to be 260 metres (not 55 metres as the Inquiry found) and to have breached in four places not one. In my view, the broadcast was also capable of giving rise to imputations beyond that concerning the cause of the flood being attributable to the collapse of the quarry wall. It was also capable of conveying that the collapse of the wall which caused the flood was due to “man-made interventions and failings”. The statements that the deadly flood was a “man­‑made” intervention and that what occurred was “not just a freak flood but a man‑made catastrophe that should have been avoided but wasn’t” were capable of being understood as conveying that someone was responsible and at fault for failing to ensure that the quarry wall did not collapse.