Harbour Radio Pty Limited & Ors v Wagner & Ors [2019] QCA 221

SUPREME COURT OF QUEENSLAND

CITATION: Harbour Radio Pty Limited & Ors v Wagner & Ors [2019] QCA 221

PARTIES: HARBOUR RADIO PTY LIMITED / ACN 010 853 317 / (first appellant) / ALAN BELFORD JONES / (second appellant) / RADIO 4BC BRISBANE PTY LIMITED / ACN 009 662 784 / (third appellant) / v / DENIS WAGNER / (first respondent) / JOHN WAGNER / (second respondent) / NEILL WAGNER / (third respondent) / JOE WAGNER / (fourth respondent)

FILE NO/S: Appeal No 11072 of 2018 / SC No 10830 of 2015

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane – [2018] QSC 201 (Flanagan J)

DELIVERED ON: 18 October 2019

DELIVERED AT: Brisbane

HEARING DATE: 13 February 2019

JUDGES: Fraser and Morrison JJA and Burns J

ORDERS: The application for leave to adduce fresh evidence is dismissed.The appeal is dismissed with costs.

CATCHWORDS: APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – OTHER MATTERS – where the trial judge found the appellants liable for a total of 80 defamatory imputations made by the second appellant in 29 separate matters broadcast by the first and third appellants – where the trial judge’s findings included that the imputations were of the gravest kind and that publication of the matters complained of constituted part of a campaign of vilification against each of the respondents – where the trial judge found that the second appellant had gratuitously repeated a number of the defamatory assertions in the course of his evidence at trial – where the appellants contend that the second appellant’s answers in the course of evidence were responsive to the questions asked of him, albeit in an expansive manner on some occasions – whether the trial judge erred in finding that the second appellant had gratuitously repeated the defamatory assertions in the course of his evidence / APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING AN ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where the trial judge found that the second appellant had gratuitously repeated a number of the defamatory assertions in the course of his evidence at trial – where the trial judge ordered that the appellants be permanently restrained from publishing the defamatory matter or any defamatory imputation that does not differ in substance from the defamatory imputations conveyed by the publications – where the appellants contend that the trial judge gave insufficient reasons for granting the injunctions – whether the trial judge gave adequate reasons for permanently restraining the appellants / DEFAMATION – INJUNCTIONS – JURISDICTION AND GENERALLY – where the trial judge found that the second appellant had gratuitously repeated a number of the defamatory assertions in the course of his evidence at trial – where the trial judge ordered that the appellants be permanently restrained from publishing the defamatory matter or any defamatory imputation that does not differ in substance from the defamatory imputations conveyed by the publications – where the appellants contend that the evidence and conduct of the appellants did not justify the imposition of permanent injunctions and that there were otherwise no grounds for the making of those orders – whether the trial judge erred in ordering that the appellants be permanently restrained / DEFAMATION – INJUNCTIONS – JURISDICTION AND GENERALLY – where the trial judge ordered that the appellants be permanently restrained from publishing the defamatory matter or any defamatory imputation that does not differ in substance from the defamatory imputations conveyed by the publications – where the injunctions against the first and third appellant operate against each of those appellants by itself and/or its servants or agents – where the appellants contend that the injunctions granted unduly restrain them – whether the trial judge erred in formulating orders that impermissibly or unreasonably restrain the first and third appellants / APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – PROCEDURE – POWERS OF COURT – FURTHER EVIDENCE – where the trial judge ordered that the appellants be permanently restrained from publishing the defamatory matter or any defamatory imputation that does not differ in substance from the defamatory imputations conveyed by the publications – where the respondents applied to adduce a letter from the second appellant to a newspaper 10 days after publication of the trial judge’s decision – where the respondents contend that the letter infers that the second appellant would repeat one or more of the defamatory imputations if he was not permanently restrained – whether the Court should receive the evidence / Civil Proceedings Act 2011 (Qld), s 9 / Defamation Act 2005 (Qld), s 26 / Abella v Anderson [1987] 2 Qd R 1, cited / Al Muderis v Duncan (No 3) [2017] NSWSC 726, cited / Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46, cited / Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351, cited / Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462; [1995] QCA 187, cited / Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; [2009] QCA 66, cited / Hamra v The Queen (2017) 260 CLR 479; [2017] HCA 38, cited / Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127; [2015] FCA 750, cited / Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, cited / Kestrel Coal Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634; [2000] QSC 150, cited / King & Ors v Australian Securities and Investments Commission [2018] QCA 352, cited / Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265, cited / Mifsud v Campbell (1991) 21 NSWLR 725, cited / Sierocki v Klerck (No 2) [2015] QSC 92, cited / Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, cited / Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24, cited

COUNSEL: R J Anderson QC, with R De Luchi, for the appellants / T B Blackburn SC, with P J McCafferty QC, for the respondents

SOLICITORS: Bennett & Philp for the appellants / Corrs Chambers Westgarth for the respondents

1. FRASER JA: After a lengthy trial the respondents succeeded in their claim for damages for defamation against the second appellant, Mr Jones, and the first and third appellants, who operate radio stations which broadcast Mr Jones’ programs. The appellants were found liable for a total of 80 defamatory imputations made by Mr Jones in 29 separate matters broadcast by one or both of the first and third appellants during a 10 month period between October 2014 and 20 August 2015. The trial judge ordered that Mr Jones and the first appellant pay each respondent damages for defamation of $750,000 plus interest and that Mr Jones and the third appellant pay each respondent damages for defamation of $100,000 plus interest.

2. The appellants have not appealed against those orders. They appeal only against injunctions ordered by the trial judge which restrain each appellant from again publishing the defamatory matter or any defamatory imputation that does not differ in substance from the defamatory imputations conveyed by the publications.

3. The grounds of appeal contend that the trial judge erred by failing to give adequate reasons for granting the injunctions, by exercising his discretion to grant the injunctions when the evidence and conduct of the appellants did not justify them, in formulating orders that impermissibly or unreasonably restrained the appellants, and in granting injunctions when there were no grounds to do so. In addition to contesting the appellants’ arguments the respondents contend that, in the event that the Court finds that the trial judge’s reasons for granting injunctions are inadequate, this Court should exercise the discretion afresh and find that the injunctions are appropriate. The appellants agree that in that event the Court should exercise the discretion afresh but they argue that the Court should refuse to grant any injunction.

Factual and procedural context

4. The following outline of the context in which the trial judge decided that the injunctions should be granted is drawn from findings expressed by the trial judge which, with one exception identified in these reasons, the appellants do not challenge.

5. Amongst the businesses conducted by the respondents’ company was a quarry at Grantham which the company had acquired in late 1988. The quarry was managed and operated by a Wagner entity until about November 2011. In January 2011 there was disastrous flooding across Queensland. There was an exceptional flood event in the Lockyer Valley. The flooding in and around Grantham was different from previous floods in that area. Eyewitnesses described rapidly rising floodwater. Tragically, the Grantham flood event resulted in the loss of life through drowning of 12 people, including young children.

6. A commission of inquiry into the flood (“the Queensland Flood Inquiry”) was established with the present Chief Justice (then Holmes JA) appointed as Commissioner. The Queensland Flood Inquiry report of 16 March 2012 accepted evidence by a hydrologist that the quarry mitigated the impact of flooding by reducing peak flood levels by between 0.04 and 0.1 metres, it did not affect peak flood velocities at Grantham but attenuated the flows and caused a five-minute delay in the water rise, and at some other locations the existence of the quarry elevated flood levels slightly.

7. The appellants broadcast the defamatory imputations after that report was published. One of the two main topics of those imputations involved assertions by Mr Jones that the quarry aggravated the flood at Grantham. The second main topic involved unrelated assertions by Mr Jones about the legality and the propriety of the approval process undertaken by the respondents in developing an airport on land they own at Wellcamp, which is about 16 kilometres from the Oakey Army Aviation Centre.

8. After the appellants had broadcast some of the defamatory imputations, on 11 May 2015 a second Commission of Inquiry (“the Grantham Flood Inquiry”) was established. Mr Sofronoff QC (the present President of the Court of Appeal) was appointed to investigate particular aspects of the flooding at Grantham, including whether the existence or breach of the Grantham quarry caused or contributed to the flooding or had a material impact on the damage caused by the flooding. There were extensive public hearings. Numerous Grantham residents gave evidence of what they experienced in the course of the Grantham Flood event. Hydrology and hydraulics experts gave evidence. Mr Sofronoff QC concluded in his report of 7 October 2015 that Grantham flooded in the way that it did because of the combination of the volume of water that surged down Lockyer Creek and the natural shape of the land near Grantham; the only effect of the quarry was to slightly delay the commencement of the flood whilst the quarry pit briefly absorbed part of the flow.

“Category 1: the [respondents] bore some responsibility for the flooding that caused the deaths of residents in Grantham because the levee bank constructed at their quarry collapsed, sending a surge of water into Grantham.

Category 2: the [respondents] engaged in conduct designed to cover up the role played by them (and the quarry) in the flood event;

Category 3: the [respondents] were involved in bullying and intimidation;

Category 4: the [respondents] constructed and operated the Wellcamp Airport in breach of all the rules;

Category 5: the [respondents] are self-interested and greedy.”

11. The trial judge found:(a)The appellants’ failure to prove the category one imputations were substantially true resulted from the appellants’ “stark failure to establish any causal link between the collapse of the bund and the deaths of 12 people”.⁴(b)To the extent that defences were persisted with in respect to the category two to five imputations those defences were of limited scope and they were “weak and unmeritorious”.⁵

12. The trial judge rejected defences that 10 of the matters complained of were fair reports of proceedings of public concern (the Grantham Floods Inquiry), holding that none of those matters amounted to a fair report.⁶

13. The appellants pleaded a defence of contextual truth under s 26 of the Defamation Act 2005 (Qld), but only in relation to four of the matters complained of and only to the extent that those matters were alleged to convey various specific imputations. That defence was rejected for reasons which include the appellants’ failure to establish the substantial truth of the contextual imputations they alleged, that the respondents conducted business on their terms with disregard for the laws that regulated them and they conducted business on their own terms with disregard for the impact their operations had on the broader community.⁷

14. The trial judge’s findings include:(a)the defamatory imputations were of the gravest kind.⁸ They included accusations by Mr Jones that:⁹

“(a) the [respondents] were responsible for the deaths of 12 people at Grantham, including two children;

knowing of their culpability, the [respondents] were knowingly involved in a massive cover-up. This cover-up involved the [respondents] conspiring with prominent members of government, including the then Deputy Prime Minister of Australia, the Bligh and Newman Governments, and Barnaby Joyce. The cover-up involved selling the quarry in order to evade legal liability for causing the deaths of 12 people. It also involved telling lies as to whether the quarry wall was part of the natural landscape or man-made. This cover-up also involved the [respondents] bullying and intimidating persons who sought to expose the truth;

the [respondents] were selfish and greedy in that they had illegally built the Wellcamp Airport which involved the stealing of airspace above the Oakey Army Base, thus harming the national defence interests;

the reason the [respondents] were able to construct the Wellcamp Airport was because of their corrupt relationship with the Coalition in Queensland and Canberra; and

the [respondents] are selfish and [in]sensitive grubs who falsely claimed to have suffered in the Grantham floods.”

(b)Mr Jones was wilfully blind to the truth or falsity of what was broadcast.

(c)He made accusations without any evidence to support them.

(d)He used vicious and spiteful language, some of which was “very savage, particularly in relation to Grantham.”¹⁰

(e)He aired very serious accusations on national radio over a period of 10 months without making any inquiry of the respondents, seeking a response from them, or informing them of the nature of the allegations.¹¹

(f)The appellants refused to retract the defamatory imputations or to apologise. Mr Jones’ refusal to apologise was explained by his evidence that he held to his views, including his views that the respondents were responsible or culpable for the deaths of 12 people at Grantham.¹²

(g)When considered in the context of previous broadcasts¹³ the publication of the matters complained of constituted part of a “campaign of vilification against each of the [respondents]”.¹⁴

15. In relation to the harm suffered by the respondents as a result of the publication of the defamatory matter, the trial judge made the following observations:(a)Each respondent became visibly upset and broke down whilst giving evidence.¹⁵(b)The defamatory broadcast caused each respondent to suffer “profound personal hurt”.¹⁶(c)In addition to the presumption of good reputation in favour of the respondents, the respondents called six witnesses to testify to their good reputation. None of those witnesses were cross-examined. It was not suggested that each respondent had anything other than an excellent reputation for honesty and integrity in business and community circles before the appellants published the first matter complained of in the proceeding.¹⁷(d)The publication of the matters complained of was very extensive.¹⁸ Audience numbers for the Brisbane and Sydney metropolitan areas which varied between about 150,000 and about 200,000 considerably underestimated the full extent of the publication.¹⁹(e)The grapevine effect of the defamatory broadcast was considerable.²⁰ In this respect the respondents gave evidence of many adverse comments which were apparently attributable to the broadcasts. For example, on the first day of the trial a message was left on the respondents’ website which accused the respondents of killing the people in the floods at Grantham, referred to them as pigs now suing Mr Jones to cover-up and feel good and “get more cash”, and concluded with a threat.(f)It was “practically impossible to track the scandal and to know what quarters the poison of the broadcast has in fact reached”.²¹(g)Mr Jones, for whose conduct the first and third appellants were liable, “engaged in unjustifiable conduct” and “was motivated by a desire to injure the [respondents’] reputations”, thereby increasing the harm to the respondents’ feelings and their reputations.²²

16. In a finding challenged by the appellants, the trial judge concluded that Mr Jones gratuitously repeated in evidence the following defamatory assertions, often in answers that bore no connection with the questions he was asked:

(a)the respondents were “not remotely concerned” about the deaths of 12 people at Grantham and “that’s the Wagner attitude … they want things done their way”;

(b)the respondents built the bund, the bund collapsed, and 12 people died;

(c)the respondents were responsible or culpable for the deaths of 12 people at Grantham;

(d)the deaths in Grantham were a result of “municipal murder”;

(e)the respondents lied about the natural landscape of the quarry and lied about the cause of the flood;

(f)the respondents “still haven’t been found out” for their responsibility for the deaths of 12 people during the Grantham flood;

(g)the respondents had engaged in a high-level cover-up to hide their responsibility for the deaths in Grantham;

(h)it was true (despite the appellants dropping the truth defence in respect of the allegation the week before the trial commenced²⁴) that the respondents had conspired with the Deputy Prime Minister and Barnaby Joyce to frustrate the flood inquiry and cover up their culpability;

(i)the respondents stole airspace from Defence; and

(j)the respondents were going to destroy the Oakey Defence Base for their own selfish greedy purposes, which Mr Jones described as “the Wagner way”, asserting that “these people do deals”.²⁵

17. That was found to be one aspect of unjustifiable conduct by Mr Jones that increased the harm to the respondents’ feelings and their reputations.²⁶ The trial judge held that three further factors supported the finding that the gratuitous repetition of defamatory assertions, particularly in relation to Grantham, constituted unjustifiable conduct:(i)Mr Jones repeated those defamatory assertions before the Court made any findings as to whether the category one and two imputations were substantially true.(ii)He continued to maintain his allegations in relation to Grantham against the respondents even though he publically praised Mr Sofronoff QC during the Grantham Floods Inquiry and praised him at the conclusion of the Grantham Floods Inquiry.(iii)Despite agitating for a fresh inquiry and despite his praise of Mr Sofronoff QC, Mr Jones refused to accept the findings of the Grantham Floods Inquiry and explained that refusal in a way which “does not withstand any sensible analysis”.²⁷

18. In Mr Jones’ evidence about the last point he accepted what Mr Sofronoff QC “said” but he did not accept “the conclusions”. The trial judge recorded that this was the first time Mr Jones publicly stated that he did not accept the conclusions of the Grantham Flood Inquiry. Mr Jones’ explanation that witnesses “weren’t given a chance to cross-examine the hydrology”²⁸ ignored the fact that those witnesses were represented by Queen’s Counsel who cross-examined the hydrology experts. The trial judge described as “nonsensical” the proposition that it was significant that witnesses represented by Queen’s Counsel were unable personally to cross-examine the experts.²⁹

The claim for injunctive relief

19. The remedies claimed in the respondents’ claim and statement of claim upon which they went to trial were damages and injunctions to restrain the appellants from continuing to publish or further publish the same or similar words claimed to be defamatory of the respondents. The injunctions ordered by the trial judge are in the form proposed by the respondents in a written submission made after the conclusion of evidence at the trial.³⁰ The appellants’ submissions did not raise any issue about the form of the claimed injunctions.

20. After the conclusion of the evidence at the trial the parties exchanged written submissions. The respondents’ claim for injunctions is discussed in the last paragraph of a written submission more than 250 pages long. The respondents submitted that it was appropriate for any relief to include injunctions, the appellants had maintained their belief in the truth of the allegations for which they were responsible, they had not undertaken not to repeat the allegations, and that “[i]n light of the evidence given on these points” it was probable that the allegations would be repeated unless the appellants were restrained. Preceding submissions included extensive criticisms of evidence given by Mr Jones about his asserted belief in the truth of allegations he had made, including the submission that when giving evidence Mr Jones gratuitously attacked the respondents’ reputations and repeated his many defamatory assertions, often in answers that bore no connection with the question.³¹

21. The appellants’ argument opposing the grant of injunctive relief, in the last paragraph of their written submission in reply,³² contends that injunctions are not warranted for the following reasons: a permanent injunction should not lightly be granted; “there is no evidence publication continued after the commencement of the proceedings… or that there is a current threat of saying anything similar in the future – contrary to the [respondents’] submission that it is “probable that the allegations will be repeated unless the [appellants] are appropriately restrained””; Mr Jones gave evidence in cross-examination [T12-99:39] that he would accept absolutely the Court’s decision; and mere persistence with a truth defence does not justify orders of this kind. Earlier paragraphs in the appellants’ extensive submissions responded to many criticisms made about Mr Jones’ conduct, including the submissions that Mr Jones was not motivated to injure the respondents and his motivation to ask “current questions” and deal with “concerns … in a public discourse” should not be mistaken for eagerness to broadcast information that he knows to be false.

The appellants’ challenge to the finding that Mr Jones chose to continue to attack the respondents’ reputations and repeat many defamatory accusations in the course of his evidence

23. The appellants argue that Mr Jones’ answers were responsive to questions asked of him, albeit “expansively” responsive in some cases, and the evidence reveals only that Mr Jones did not resile from the views he had expressed in the broadcasts.

24. Example (a) in the reasons of the trial judge (see [16] of these reasons) is the defamatory assertion that the respondents were “not remotely concerned” about the deaths of 12 people at Grantham and “that’s the Wagner attitude … they want things done their way”.³⁴ The cross-examiner asked a series of questions designed to establish the fact, ultimately found by the trial judge, that Mr Jones published his very serious accusations on national radio over a period of 10 months without informing the appellants of the nature of the allegations or seeking a response from them. Mr Jones then answered in the negative a question whether his view was that he could say whatever he liked about a person who declined a request from his producer to come on to the program. After answering the question Mr Jones added a statement which occupies seven lines in the transcript and concludes with this defamatory assertion.

25. Example (b) is the defamatory assertion that the respondents built the bund, the bund collapsed, and 12 people died. Mr Jones substantially repeated that defamatory assertion when asked about the different topic whether he agreed that he had made an allegation of a conspiracy between the Deputy Prime Minister, a Minister, and one of the respondents to frustrate the Grantham Floods Inquiry.³⁵ He then twice repeated the defamatory assertion after answering in the affirmative the question whether he still maintained all the allegations he made against the respondents in relation to the bund.³⁶

26. Example (c) is the defamatory assertion that “the [respondents] were responsible or culpable for the deaths of 12 people at Grantham”.³⁷ Mr Jones agreed in evidence that he had regularly and repeatedly made such an assertion.³⁸ When asked whether he had accused the respondents of being responsible for the deaths, he responded that he was not too sure he had used those exact words – but he added that he believed that 12 people had lost their lives as a consequence of the bund “to which there have been no answers, even to this point”. He agreed he had used vituperative terms and said he was angry. When asked whether he had used “vicious terms” he said, “I don’t know about vicious… but I strongly worded my concerns… ”. He then added the assertion, “and I hold them today.” Mr Jones made the imputations upon this topic and repeated them in evidence even though he had no hydrological or scientific evidence of any kind. In relation to Mr Jones’ evidence that the “attacks were based on [his] understanding of the grievous circumstances facing the victims” the trial judge found that his “understanding” was “a wholly inadequate basis for the broadcasting of grave accusations concerning the [respondents]” and Mr Jones’ senior counsel subsequently conceded that the evidence of the eyewitnesses was “insufficient for the purposes of establishing any causal link between the collapse of the bund and the deaths of 12 people”.

Sufficiency of the trial judge’s reasons for granting injunctions

38. The appellants argue that an injunction against a media organisation is exceptional and must be based upon careful reasoning and that on such an important issue they were entitled to more than three paragraphs. They argue that the trial judge did not find that there was a risk of repetition of the defamatory imputations; the trial judge’s reasons contain only the single reason for the injunctions that Mr Jones chose to continue to attack the respondents’ reputations and to repeat many of the defamatory imputations. That is submitted to be incapable of justifying the injunctions. They argue that the trial judge ignored important evidence that militated against granting injunctions, particularly, Mr Jones’ unchallenged evidence that he would “absolutely” accept the outcome of the proceedings.⁶⁷ The appellants criticise the absence from the reasons of a restatement of relevant principles or cases. They contend that the reasons should have articulated a consideration of the necessary balancing exercise, including reference to the nature of the defamation, the damage to the respondents, and the value of free speech associated with the appellants’ capacity to continue to publish;⁶⁸ or the existence and degree of the threat or risk of repetition of publication of the defamatory matter.⁶⁹ The reasons are said to be deficient also because they do not explain why it is necessary to permanently restrain the first and third appellants rather than merely Mr Jones, an injunction against whom would prevent any further publication by the first and third appellants, and for the absence of consideration of the effect and scope of the injunctions against the first and third appellants.

39. The only substantial issue raised by the parties in relation to the claimed injunctions at the trial was whether there was a risk that Mr Jones would repeat the defamatory imputations on air. The appellants’ proposition that the trial judge did not find that there was such a risk is premised upon the last paragraph of the trial judge’s reasons being read in isolation from all that precedes it, including the two preceding paragraphs which summarise the parties’ submissions. That is not an appropriate way of reading the reasons. The language used in the last section of the reasons, which concerns only the appropriateness of a remedial response to the findings about the appellants’ wrongs in preceding reasons, suggests the unsurprising conclusion that it draws upon the preceding reasons. If it be thought that this involves some “truncation of reference and expression”, so much was appropriate in order to produce “coherent and tolerably workable reasons” in the context of the numerous issues and very lengthy written submissions the trial judge was required to consider.

The appropriateness of injunctive relief

49. Under this heading I will discuss the grounds of appeal which contend that the trial judge erred by exercising his discretion to grant the injunctions when the evidence and conduct of the appellants did not justify it and there were no grounds to do so. The main focus of the appellants’ arguments in support of these grounds is their contention that the respondents did not prove that there was a real risk that the appellants would re-publish the defamatory matter or the defamatory imputations after judgment was given against the appellants.

50. Section 9 of the Civil Proceedings Act 2011 (derived from s 66 of the Supreme Court Act 1970 (NSW)) provides in sub-section (1) that a court that has jurisdiction to hear an application for an injunction “may, at any stage of a proceeding by injunction, restrain a threatened or apprehended breach of contract or other wrongful conduct.” The original source of that provision, and earlier Queensland enactments to similar effect,⁷⁹ is s 79 of the English Common Law Procedure Act 1854. That section conferred a power to grant injunctions only upon the common law courts. In Australian Broadcasting Corporation v O'Neill,⁸⁰ Gleeson CJ and Crennan J, and Heydon J, refer to the unwillingness of courts of equity to issue an injunction to restrain a threatened libel. Gummow and Hayne JJ conclude that a court exercising equitable jurisdiction would restrain only the repetition of what has been found to be libellous and then only if it threatened damage to a plaintiff’s proprietary interest.⁸¹ Nevertheless, final injunctions to restrain a threatened defamation or the repetition of what has been found to be defamatory under s 9(1) of the Civil Proceedings Act 2011 and similar provisions ordinarily have been granted or refused with reference to the general principles applied by a court of equity in its auxiliary jurisdiction to restrain the repetition of a legal wrong.⁸²

51. The relevant principles concern the exercise of the Court’s discretion. In Kestrel Coal Ltd v Construction Forestry, Mining and Energy Union⁸³ Chesterman J discussed authorities upon the topic and concluded that they supported the general principle articulated by Dr Spry:⁸⁴ the plaintiff must satisfy the court that there is “a sufficient risk that [the] act will take place to render it just, in all the circumstances that an injunction should be granted”; the fundamental enquiry “relates to the extent of hardship that would be caused by leaving the plaintiff to resort to damages or to renew [the plaintiff’s] application subsequently if the threat of injury … should become greater, and this consideration in turn depends not merely on the precise probability that the acts to be enjoined will take place, but also on the gravity of those acts and on the degree of damage or inconvenience that they would cause if they took place”. Account also must be taken of “such considerations as the degree of any hardship that might be caused [to] the defendant if an injunction were granted, any inequitable conduct on the part of the plaintiff and other discretionary matters”.

The appropriateness of injunctions against the first and third appellants and the form of the injunctions

62. The appellants contend that the trial judge erred in formulating orders that impermissibly or unreasonably restrain the appellants. They also argue that if the injunctions are maintained against Mr Jones that will practically preclude any republication, there being no suggestion that any person other than Mr Jones was responsible for the publication of defamatory matter. Injunctions against the first and third appellants are submitted to be inappropriate because equity limits itself to that which is truly necessary.⁹⁷

63. These arguments are a significant departure from the way in which the appellants’ case was conducted at trial. The first and third appellants did not make any submission to this effect before the trial judge. The appellants were represented by the same solicitors and counsel and advanced one set of arguments throughout, with no discrimination amongst the appellants of the kind now advocated. Nor did the appellants criticise the form of the orders sought by the respondents in any respect.

64. Mr Jones gave evidence to the effect that the first and third appellants did not exercise any editorial oversight over him, he was largely given a free rein in his program,⁹⁸ and employees of “Macquarie Media”, which was regarded as being the owner of the two radio stations, worked with Mr Jones on programme content and in compilation and distribution to syndicated stations.⁹⁹ No evidence was adduced at trial and nor was it submitted that this way of conducting radio broadcasts of Mr Jones’ programmes changed or might change as a result of Mr Jones’ lengthy “campaign of vilification” against the respondents and the prosecution or result of the defamation claim.

65. The combination of the judge’s findings and the absence of any editorial oversight by the first and third appellants of its presenter’s regular broadcasts sets this case apart from the numerous cases in which injunctions have either not been sought by plaintiffs against media organisations or, where sought, they have not been granted.

66. The appellants criticise the scope of that part of the injunctions against the first and third appellants which restrain each company by itself “and/or its servants or agents, from publishing…” The appellants contend that even employees or agents who are not involved in broadcasting will be subject to the restraints and that there is a question whether a guest on a radio programme broadcast by the first and/or third appellants is an agent for the purpose of the injunctions. They complain that the injunctions require the first and third appellants to make their employees and agents aware of the terms of the orders.

Application to adduce fresh evidence

69. The respondents applied to adduce as evidence in the appeal a letter from Mr Jones to a newspaper published 10 days after the trial judge’s decision. The letter suggests that it was written to enable the readers of the newspaper to understand Mr Jones’ situation. The respondents rely upon the statements that the newspaper’s readers “should know that part of the judgment involved an injunction that prevents me and all staff at 4BC and 2GB from discussing most aspects of the decision or a defence of the case in any detail” and “the other side can go open slather”. The respondents submit that, given that the injunctions merely prevent the appellants from repeating the defamatory matter and the defamatory imputations, the inference should be drawn that Mr Jones would repeat one or more of the defamatory imputations if there were no injunctions. Upon that footing the respondents seek to rely upon the letter as additional evidence of a risk that the appellants will again publish some of the defamatory matter or the defamatory imputations unless restrained by injunctions. A competing inference is that Mr Jones is intent upon complying with the letter and the spirit of the injunctions and, if they were set aside, would comment only to the extent that to do so would not involve any repetition of the defamatory matter or imputations currently restrained by the injunctions. I would refuse the application upon the ground that the letter does not clearly justify the inference advocated by the respondents.

Proposed orders

70. The application for leave to adduce fresh evidence should be dismissed. The appeal should be dismissed with costs.

71. MORRISON JA: I have read the reasons of Fraser JA and agree with those reasons and the orders his Honour proposes.

72. BURNS J: I agree with the reasons of Fraser JA and the orders proposed by his Honour.

Footnotes

1. Reasons [436]. ↩

2. Reasons [435]. ↩

3. Reasons [437]. ↩

4. Reasons [849]. ↩

5. Reasons [849] – [850]. ↩

6. Reasons [698] – [708]. ↩

7. Reasons [709] – [714]. ↩

8. Reasons [788]. ↩

9. Reasons [787]. ↩

10. Reasons [840]. ↩

11. Reasons [845]. ↩

12. Reasons [846]. ↩

13. See Reasons [859] – [867]. ↩

14. Reasons [858]. ↩

15. Reasons [791], explained with reference to the evidence discussed at [792] – [812]. ↩