(📸 By Timothy – Flickr: Lake Annand 2, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=12650243)
On 6 September 2019 in the Supreme Court of Queensland, under the direction of Justice Applegarth, a jury found that Nine Network Australia & Ors (“Nine”) defamed Toowoomba’s Wagner brothers in a 60 Minutes report on 24 May 2015 about the Grantham floods in 2011. The report insinuated, incorrectly, that the brothers were responsible for a man-made disaster (catastrophic flood) which ultimately lead to the destruction of Grantham and the death of 12 people.
The imputations and defamatory meanings conveyed 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”.
The evidence that the imputations are false were uncontested, and in fact, no substantive defence was presented. In a report handed down by a Commission of Inquiry to the allegations found that the quarry did not materially contribute to the damage caused in Grantham or near the quarry. In light of this, the Commissioner stated 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.”
Since 1 January 2001, uniform defamation laws have made it possible for a plaintiff to use an apology as an admission of liability, however it is not admissible as evidence of liability (section 19 of the Defamation Act 2005 (Qld)). It was therefore possible for Nine to apologise and still have their day in court to convince a jury that the meanings conveyed by the imputations were not in fact conveyed. Despite the findings, Nine maintained that the imputations were true and refused to correct, retract, or apologise for their poor reporting.
Fast forward to 22 November 2019, what was a case of poor journalism and a group of bemoaned individuals looking for someone to blame, has become a costly exercise for the network, and more particularly for Mr Nicholas Cater, the culprit journalist. Justice Applegarth ordered damages for each of the four (4) plaintiffs (Wagner & Ors) against the first to fifth defendants (Nine Network Australia and its associated entities) in the amount of $663,000.00 (inclusive of interest), and $331,500.00 against Mr Cater, the total payout approximately $3.6m.
His honour went on to explain that the main issue was Nine’s “unjustifiable conduct in publishing such a defamatory imputation in the first place”, without a proper basis for broadcasting the imputations. Nine’s reckless indifference to the truth or falsity of the imputations, and failure to put those allegations to the Wagners demonstrates their indifference or lack of remorse.
In relation to Mr Cater’s conduct, his honour was “conscious that malice in the making of a defamatory statement may be inferred by conduct, including malicious conduct, which occurs before or after the publication”. The Wagners relied on the fact that Mr Cater had materials available to him, which suggested that the wave of water did not start with the quarry. Mr Cater disregarded this evidence and further provided no evidence for his beliefs and the basis for them other than “he plainly believed” that he had all the evidence he required to support his case. His honour found that Mr Cater’s conduct in failure to make any inquiries of the Wagners and unexplained disregard for evidence provided to him warranted an award of aggravated compensatory damages.
It is important to note that 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” (Robert Stevens, Torts and Rights (Oxford University Press, 2007) at 59). Compensation is not awarded for a damaged reputation, but rather an injury in reputation as a result of being publicly defamed (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150). It is simply a method of vindication of the plaintiff to the public.
The decision of Justice Applegarth in Wagner & Ors v Nine Network Australia & Ors should operate to deter anyone from engaging in the same or similar conduct, particularly those in the journalism industry.
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