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 2015DIVISION:
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, reversedCOUNSEL:
T D Blackburn SC, with P J McCafferty, for the appellants
R J Anderson QC for the respondentsSOLICITORS:
Corrs Chambers Westgarth for the appellants
Mark O’Brien Legal for the respondents
MORRISON JA: I have read the reasons of Philippides JA and agree with those reasons and the orders her Honour proposes.
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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- Case
- [2017] QCA 261
- Decision Date
CaseChat Overview and Summary
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
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.