//
[2018] QSC 201
General information, not legal advice.
Supreme Court of Queensland
2018-09-12
Flanagan J
Original judgment source is linked above.
As against the first defendant and second defendant
As against the second defendant and the third defendant
As against the first defendant and second defendant
As against the second defendant and the third defendant
As against the first defendant and second defendant
As against the second defendant and the third defendant
As against the first defendant and second defendant
As against the second defendant and the third defendant
(e) First, Second, Third and Fourth Plaintiffs
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATIONS - where the plaintiffs sue in respect of 32 separate matters, the majority of which are radio broadcasts - where the defendants admit that they published, or were responsible for the publication of, the 32 matters complained of - where the plaintiffs allege that these publications give rise to 98 defamatory imputations - where the alleged imputations primarily concern the plaintiffs' role in the Grantham Floods of 2011, and the plaintiffs' construction of Wellcamp Airport - where the action was tried by a judge sitting alone - whether the alleged imputations are conveyed - whether the alleged imputations are of and concerning the plaintiffs - whether the alleged imputations are defamatory of the plaintiffs
DEFAMATION - DEFENCES - JUSTIFICATION - TRUTH - SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH - FAIR REPORT - MATTER OF PUBLIC INTEREST - OTHER DEFENCES - where the defendants seek to establish defences of substantial truth, contextual truth, and fair report of proceedings of public concern - where the defendants prior to trial extended to the plaintiffs a written offer to make amends - where the defendants plead that the plaintiffs' failure to accept that offer constitutes a further defence pursuant to s 18 of the Defamation Act 2005 (Qld) - whether the imputations are defensible on any of the pleaded grounds - whether the defendants' offer to make amends was, in all the circumstances, reasonable
DAMAGES - GENERAL DAMAGES - ASSESSMENT - SPECIAL MATTERS - AGGRAVATION - where the plaintiffs claim an award of damages in a single sum pursuant to s 39 of the Defamation Act 2005 (Qld) - where the plaintiffs seek general and aggravated damages - where the plaintiffs' claim for aggravated damages rests partly on the defendants' publication of 53 additional radio broadcasts, all of which pre-date the broadcasts complained of in the present proceedings - whether the plaintiffs may rely on these prior broadcasts for the purposes of aggravation - whether the prior broadcasts evidence malice on the part of the second defendant
DAMAGES - GENERAL DAMAGES - ASSESSMENT - SPECIAL MATTERS - AGGRAVATION - where s 35 of the Defamation Act 2005 (Qld) places a statutory cap on damages for non-economic loss - where the section further provides that the cap may be exceeded if, and only if, a court finds an award of aggravated damages is warranted - whether, even where such a finding is made, the cap remains a relevant factor in a court's assessment of damages
DAMAGES - GENERAL DAMAGES - ASSESSMENT - SPECIAL MATTERS - MITIGATION - where the plaintiffs have commenced two separate defamation actions in addition to the present proceedings - where the plaintiffs have settled one of those actions - where the other remains on foot - where the defendants plead that the imputations alleged in the two additional proceedings have the same meaning or effect as those forming the subject of the present proceedings - whether the additional proceedings function to mitigate any damages awarded pursuant to s 38 of the Defamation Act 2005 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 428, r 429A
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; [1998] NSWSC 4, followed
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15, applied
Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263, cited
Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154, applied
Bristow v Adams [2012] NSWCA 166, cited
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31, followed
Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89; [2014] QCA 33, applied
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37, applied
Collins Stewart Ltd & Anor v The Financial Times Ltd (No 2) [2005] EWHC 262 (QB), considered
Curistan v Times Newspapers Ltd [2009] 2 WLR 149; [2008] EWCA Civ 432, considered
David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50, cited
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, cited
Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77, cited
Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329, cited
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, applied
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52, applied
Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822, cited
Hallam v Ross (No 2) [2012] QSC 407, cited
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; (2015) 332 ALR 257; [2015] FCA 652, cited
Hough v London Express Newspaper Ltd [1940] 2 KB 507, considered
Howden v Truth & Sportsman Ltd (1937) 58 CLR 416; [1938] ALR 208; [1937] HCA 74, applied
John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364, cited
John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205, applied
John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; [2003] HCA 50, cited
Jones v E Hulton & Co [1909] 2 KB 444, cited
Jones v Skelton (1963) 37 ALJR 324; [1963] 1 WLR 1362; [1963] UKPC 29, cited
Lee v Wilson & Mackinnon (1934) 51 CLR 276; [1935] ALR 51; [1934] HCA 60, cited
Lewis v Daily Telegraph Ltd [1964] AC 234, cited
Ley v Hamilton (1935) 153 LT 384, cited
Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147, cited
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited
McAlpine v Bercow [2013] EWHC 1342 (QB), cited
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; [1982] HCA 50, considered
Morgan v Odhams Press Ltd [1971] 1 WLR 1239, applied
Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19; [2017] QCA 70, applied
Nixon v Slater & Gordon (2000) 175 ALR 15; [2000] FCA 531, cited
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485; [1980] HCA 1, applied
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16, applied
Rayney v The State of Western Australia [No 9] [2017] WASC 367, applied
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52, applied
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, followed
Triggell v Pheeney (1951) 82 CLR 497; [1951] ALR 453; [1951] HCA 23, applied
Universal Communication Network Inc trading as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd & Chan [2008] NSWCA 1, cited
Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50, considered
Wilson v Bauer Media Pty Ltd [2017] VSC 521, considered
Wright v Caan [2011] EWHC 1978 (QB), cited
Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283, applied
TD Blackburn SC with PJ McCafferty for the plaintiffs
[1] The plaintiffs are four brothers from Toowoomba who, since 1989, have built a highly successful business. They sue in defamation in respect of 32 publications. The publications, with one exception,[1] are radio broadcasts which aired between 28 October 2014 and 20 August 2015.
[2] The second defendant, Alan Jones, has been a public broadcaster on radio since 1985. He has mainly worked on AM radio, utilising a talkback format as well as broadcasting opinion pieces.[2] He presents a daily program titled "The Alan Jones Breakfast Show" ("the Jones Program"). This program is broadcast and published by the first defendant, Harbour Radio Pty Ltd, on radio station 2GB and the 2GB website. The first defendant is the licensee of 2GB ("2GB").
[3] The third defendant, Radio 4BC Brisbane Pty Ltd, is the licensee of radio station 4BC and the broadcaster and publisher of "The Alan Jones Hour" program on 4BC and the 4BC website ("4BC"). This program is a one-hour edit of the highlights from the Jones Program.[3]
[4] The fourth defendant, Nicholas Cater, is a journalist and an occasional guest of Mr Jones on the Jones Program.
[5] As to the 32 matters complained of, it is not in issue that the defendants published or were responsible for publishing one or more of the matters:
- (a) 2GB admits that it is responsible for the publication of each of the matters with the exception of the Fifth and Sixth Matters, which are the broadcasts of the Alan Jones Hour by 4BC on 24 February 2015 and 26 February 2015;[4]
- (b) Mr Jones admits he published each of the 32 matters complained of;[5]
- (c) 4BC admits that it is responsible for the publication of the Fifth and Sixth Matters;[6] and
- (d) Mr Cater admits publication of the words attributed to him in the Eleventh Matter.[7]
[6] The publication of each of the 32 matters complained of constitutes a separate cause of action[8] requiring independent consideration.[9]
[7] On 10 October 2017, Applegarth J granted the plaintiffs' application for the proceeding to be tried without a jury.[10] As observed by his Honour, that application was "founded upon the multiplicity and complexity of the issues in the proceeding".[11] In order to refine and confine the many issues in this case, the parties were directed to file an agreed list of issues. The final (and shorter)[12] version of this document, entitled "Issues for Determination", was filed on 4 June 2018. The relevant issues are identified in respect of each of the 32 matters complained of. The 32 publications are alleged to give rise to 98 defamatory imputations. While it is possible to group some of the imputations, it is necessary to consider in respect of each matter whether, in its natural and ordinary meaning, it conveyed the pleaded imputations (or any imputation which is not substantially different). In relation to three of the matters complained of,[13] the plaintiffs rely on the extrinsic fact of earlier broadcasts by Mr Jones.
[8] Typically, apart from deciding whether the imputations are conveyed, the issues to be determined include the following:
1. whether the matter is of and concerning the plaintiffs;[14]
2. whether the imputations, if conveyed, are defamatory;[15]
(a) did the relevant matter carry, in addition to the defamatory imputations of which the plaintiffs complain, the following contextual imputations:
(i) the plaintiffs conduct business on their own terms, with disregard for the laws that regulate them; and
(ii) the plaintiffs conduct business on their own terms, with disregard for the impact operations have on the broader community;
(b) are the contextual imputations, if conveyed, substantially true;
(c) did the imputations proved by the plaintiffs to be defamatory not cause further harm to them because of the substantial truth of the contextual imputations;
(a) was the relevant matter a fair report (or contained within a fair report) of a proceeding of public concern; and
(b) if the relevant matter was (or was contained within) a fair report of a proceeding of public concern, was it published honestly for the information of the public.
[9] There are two further issues to be determined:
- whether the defendants are entitled to a defence to the proceeding under s 18 of the Act, on the basis that the plaintiffs failed to accept a reasonable offer to make amends made on 27 November 2015. This gives rise to the following subissues:
(a) did the defendants make an offer to make amends as soon as practicable after becoming aware that the matters were or may be defamatory; and
(b) was the offer reasonable in all the circumstances;
[10] On the first day of trial, the defendants applied for, and were granted leave to file, a fourth further amended defence. The plaintiffs did not oppose this application. The amendments were substantial in that there were changes both to the number and nature of the defences raised and also to some of the facts relied on in relation to the truth defence. First, the defence of fair comment at common law previously pleaded in paragraph 143 was deleted. Also deleted was the qualified privilege defence under s 30 of the Act and at common law including as to government and political matters. To establish a defence of qualified privilege under s 30 of the Act_,_ the defendants would have been required to prove that their conduct in publishing the matters complained of was reasonable in the circumstances.[19] This is no longer an issue in the proceeding.
[11] The defendants also no longer seek to justify certain alleged defamatory imputations. This includes a serious alleged imputation that the plaintiffs conspired with the then Deputy Prime Minister, Warren Truss, and Barnaby Joyce, to cover up the plaintiffs' culpability for the deaths of people in the Grantham flood disaster.[20]
[12] On the final day of the trial, the defendants also abandoned the defence of honest opinion under s 31 of the Act_._[21]
[13] The plaintiffs were all born and grew up in Toowoomba. Each is married with four children. Their father, Henry Wagner, conducted a concrete quarry, stone masonry and earthmoving business based in Toowoomba. The stone masonry business was established as early as 1896.
[14] In 1989, a business, generally known as Wagners, was established, initially by Denis Wagner, John Wagner, Neill Wagner and their father. Each held a 25 per cent shareholding in the business. Henry Wagner held his shareholding on trust for the fourth plaintiff, Joe Wagner. He has worked in the business since 1991 and became an owner in 2006 when his father retired.
[15] The business commenced in a relatively small way as a concrete transport and quarry business but rapidly grew. The plaintiffs have expanded the business into areas such as composite fibre products, reinforced steel, concrete crushing and a public airport.
[16] As part of the quarry business, the plaintiffs, through Wagner Investments Pty Ltd, purchased a quarry at Grantham in November 1998. Up until about November 2011, the quarry was managed and operated by another Wagner entity. In August/September 2010, the plaintiffs commenced negotiating with Boral Ltd for the sale of Wagners' concrete and quarry business. These negotiations included four quarries, one of which was the Grantham quarry.[22] The sale transaction was completed on 8 December 2011.[23] Denis Wagner was primarily responsible for Wagners' concrete and quarry business.
[17] In 1994, the plaintiffs purchased a large parcel of land (310 hectares) at Toowoomba Cecil Plains Road, Wellcamp. The Wellcamp site is approximately 15 kilometres to the east of Toowoomba. The Oakey Army Aviation Centre is located approximately 16 kilometres to the north-west.[24]
[18] In 2001, Dr David Pascoe and Heather Brown purchased land across the road from the Wellcamp site. Their land is approximately 81 hectares and is operated as a thoroughbred horse stud called Plaintree Farms. Ms Brown formerly worked as a journalist for The Australian. She has known Mr Jones since about 1988. They would socialise together and generally remain in touch.[25]
[19] In 2012, after the sale to Boral Ltd was completed, the plaintiffs decided to seek approval to have the Wellcamp site developed into a public airport. John Wagner was primarily responsible for obtaining town planning consents for the airport. Denis Wagner was responsible for the actual construction of the airport. Construction on the airport commenced in 2013.
[29] The First Matter was broadcast on radio 2GB on 28 October 2014 commencing at approximately 8.12 am.
[30] Attachment 1 to these Reasons is a transcript of the words spoken by Mr Jones.[33]
[31] 2GB and Mr Jones admit that the First Matter was of and concerning each of the plaintiffs.[34]
[32] It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) orchestrated with others a high-level cover-up of involvement in the deaths of people at Grantham, in order to avoid being held to account for those deaths, and to protect his financial interests; and
- (b) had plenty to hide in connection with the deaths of people at Grantham and in concert with others was knowingly involved in a high-level cover-up to ensure that his culpability for those deaths was never investigated.[35]
[33] The parties are agreed as to the principles to be applied in determining the natural and ordinary meaning of the words. These principles are well established. The natural and ordinary meaning of the words complained of is the meaning which an ordinary listener would give to the words. The Court must therefore assume the role of the ordinary reasonable listener. The relevant question is whether the ordinary reasonable listener would have understood the matters complained of in the defamatory sense pleaded.[36] This is not simply the literal meaning of the words, but also extends to any implied or inferred or indirect meanings.[37] No evidence is admissible on the issue of meaning. It is to be determined objectively, by reference to the hypothetical construct of the ordinary reasonable listener, who is taken to glean the single natural and ordinary meaning of each distinct charge conveyed by the broadcast. The meaning that a defendant intended to convey is irrelevant. So too is the manner in which the publication was actually understood.[38] How the ordinary reasonable listener determines meaning is "a matter of impression".[39]
[34] The relevant principles, including the attributes and characteristics of the ordinary reasonable listener, were identified by Hunt CJ at CL in as follows:
"78. First, the ordinary reasonable listener does not give equal weight to every part of a publication. As McHugh J observed (in the context of the ordinary reasonable reader) in John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at [26]:
'But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account.'
79. Second, the meaning an ordinary reasonable listener attributes to a broadcast, that is the impression that person forms, is influenced by other matters. For example, a broadcast may be pregnant with insinuation, or suggestion, and a broadcaster may seek to guide a listener to adopt a suspicious approach but not care to or dare to express matters in direct terms.
80. Indeed, a broadcaster may convey an imputation indirectly or stealthily. As the Privy Council said in Jones v Skelton, supra, at 651, in a passage later applied by Lord Keith of Kinkel (on behalf of himself and Lords Elwyn Jones, Roskill and Griffiths) in Lloyd v David Syme & Co Ltd [1986] AC 350 at 363H-364A:
'The [listener], a jury might conclude, was invited to adopt a suspicious approach and so to be guided to the real explanation of what had taken place - an explanation which the [broadcaster] ... did not care or did not dare to express in direct terms.'
81. Lord Keith characterised this (in the same passage) as being 'anxious to wound but fearful to strike too obviously'.
82. Gleeson CJ observed memorably in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 that:
'It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong.'
83. Third, these matters have a significant bearing on meaning for this reason: if a broadcaster invites the listener to adopt a suspicious approach or invites conjecture, then the broadcaster is liable for conclusions that an ordinary reasonable listener may reach as a result of that invitation. Similarly, as the majority observed in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 at [11]:
'Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd, that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges.'
84. These three further matters are of critical importance to the present case. The reasons why are apparent when the audio of each of the broadcasts are considered. The vast majority of Mr Jones' broadcasts are sensationalist in tone, are pregnant with insinuation and suggestion. In many instances Mr Jones, by his tone, invites his listeners to adopt a suspicious approach, and he repeatedly invites conjecture."[42]
[36] In determining whether the imputations are conveyed, I have listened to each of the relevant broadcasts. In the course of the trial a number of the broadcasts were played, and I have listened to some of them a number of times. Both parties filed written submissions as to whether the imputations are conveyed. These submissions make extensive reference to the transcript of each broadcast. It is, of course, the sounds I hear from the audio of each broadcast that constitute the evidence. A danger is created by listening to a broadcast more than once and reading the transcripts. This danger was identified by Chaney J in Rayney v The State of Western Australia [No 9] where his Honour, similar to the present case, was conducting a judge-only trial:
"I am mindful that that process of analysis creates a real danger of departing from the task of assessing the meaning of the words in a way that a reasonable person, receiving the information for the first time, would understand them according to their ordinary and natural meaning. It also tends to lead to the risk of analysis as a lawyer and of overlooking the 'important reminder for judges' that ordinary readers and listeners draw implications much more freely, especially when they are derogatory."[43]
[37] In determining whether the imputations are conveyed I have remained mindful of this danger.
[38] Both parties accept that the Court is not bound by the imputations pleaded by the plaintiffs. As stated in Chakravarti v Advertiser Newspapers Ltd:[44]
"As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focusses on some different factual basis."
[39] It is for the Court to determine the actual meaning of the words broadcast.[45] If the Court finds a defamatory meaning that is a mere nuance or variation of the pleaded meaning, or a less serious meaning that does not cause any prejudice to the defendants, the plaintiffs are entitled to succeed on that issue.
[40] The plaintiffs do not rely on any extrinsic fact of previous broadcasts in submitting that the First Matter carried the two pleaded imputations. The first broadcast is quite short. It begins by Mr Jones announcing "A very significant day in Queensland today", capturing the listeners' attention. He then refers to a speech to be given in the Queensland Parliament by Dr Alex Douglas in relation to Grantham. Mr Jones identifies the significance of his reference to Grantham by stating, "Of course the deaths of people which have never been investigated". He then emphasises that "Big things are said to come out of Queensland this week". Having already referred to Grantham in the context of peoples' deaths, he makes note of a recent speech by Lachlan Murdoch in which Mr Murdoch referenced his grandfather's belief that journalism should be dedicated to the truth. Mr Jones places a vocal emphasis on the word "truth". It is in this context that Mr Jones describes Grantham as "one of the most corrupt metaphors in Australia". He then asks the listener, "Why was a Grantham cover-up orchestrated? Who was being protected?" The first question as posed by Mr Jones does not ask whether there was a cover-up, but rather assumes the existence of a cover-up and asks why such a cover-up was orchestrated. He then suggests to the listener that "this is all tied up with mining". He also provides the listener with an answer as to who was being protected; he refers to "Wagners" as owning the "Grantham Quarry". Reference is then made to the Wagners already being in partnership with entities that work with British Gas. Mr Jones then poses the question whether this makes the Wagners "untouchable". He concludes:
"Well may we ask in Queensland why the Grantham cover-up? The answer in both is the same; those doing the covering-up have got plenty to hide."
Again Mr Jones poses a question and provides the answer. The defendants submit that there is no direct suggestion that the Wagners are involved in a cover-up. The meanings can only arise by inference. Although the Wagners are referred to as owning the quarry, there is, according to the defendants, no link between the quarry and the flood and nor, for that matter, the quarry, the flood and the deaths of people in Grantham.[46] The defendants submit:
"The listener - whom we are not told to expect as having any particular background knowledge - would not be able to conclude anything from this broadcast about how people died, let alone that the Wagners were involved, or even worse, 'culpable' and thereby had something to hide or a financial interest to protect."[47]
[41] The import of the defendants' submissions is that the Wagners were, at most, the beneficiaries of a cover-up but that does not make them, as the meanings would have it, persons who "orchestrated with others" or who were "knowingly involved in" a "high level cover-up". I do not accept these submissions. The ordinary reasonable listener would have been left with the impression that the deaths of people at Grantham had not been investigated and that the truth had been suppressed. This was because of an orchestrated cover-up by those who had "plenty to hide". They included the owner of the Grantham quarry, Wagners. I accept the plaintiffs' submission that the matter invites the listener to speculate and adopt a suspicious approach.[48] The suspicious approach is invited by Mr Jones' use of the words "cover-up" and "corrupt metaphor", and by his reference to Wagner being "untouchable". The broadcast having invited the listener to adopt a suspicious approach and speculate, the two pleaded imputations would be conveyed to an ordinary reasonable listener.
[42] The first imputation identifies two reasons for the orchestrated cover-up. The first is to allow the plaintiffs to avoid being held to account for the deaths of people at Grantham, and the second is to protect the plaintiffs' financial interests. The first reason arises from Mr Jones' use of the words "the deaths of people which have never been investigated", "Grantham is one of the most corrupt metaphors in Australia", "there are many people appalled and angered at what happened", and his reference to the Grantham quarry being owned by Wagners. The second reason arises from Mr Jones' reference to the cover-up being "all tied up with mining" and Wagners being in partnership with entities that work with British Gas.
[43] The defendants' submission that the Wagners, at most, are the beneficiaries of a coverup reveals, in my view, an incorrect application of the principles discussed above. The plaintiffs make the following general criticism of the defendants' approach to the issue of whether each matter conveys the pleaded imputations:
"The plaintiffs apprehend that the defendants' arguments on this and each of the other matters will be based on a close parsing and analysis of the words rather than on an impression created by the actual broadcast, which includes the words, the tone, the delivery - the broadcast itself."[49]
[44] The imputations complained of by the plaintiffs are carried by the First Matter complained of.
[45] The Second Matter was broadcast on radio 2GB on 29 October 2014 commencing at approximately 7.13 am. Attachment 2 to these Reasons is a transcript of the words spoken by Mr Jones.
[46] The defendants dispute that the Second Matter is of and concerning the plaintiffs. The basis of the dispute, which is also relevant to six other matters complained of,[50] is that the Second Matter makes no reference to individuals. The defendants submit that the Second Matter is of and concerning the Wagner business, or corporate entity, rather than the plaintiffs.[51]
[47] The test for identification is an objective one, namely whether the words published might reasonably be understood to those to whom they were published to refer to the plaintiffs.[52] In Steele v Mirror Newspapers Ltd, Hutley JA observed: "The standards of reasonableness required of an identifying reader are not high."[53] Whether the Second Matter is of and concerning the plaintiffs is a question of fact.[54] This question of fact does not depend simply upon the words used but upon all the circumstances of the broadcast, including tone, emphasis, insinuation and the fact that the broadcast is a transient publication.[55]
[48] The defendants submit that the Second Matter makes no reference to individuals and is not about the activities of, or a reflection upon the conduct of, individuals. The reference in the broadcast to "Wagners" would, according to the defendants, readily be understood by listeners to be a reference to the business.[56] I do not accept this submission. Mr Jones in the course of the broadcast makes reference to the following:
- "the quarry was owned by Wagners";
- "they were already in partnership with the Wood Group, the British coal seam gas supply group that works with British Gas";
- "Does that make Wagner untouchable?";
- "the Wagners Sand Plant";
- "Wagners dam";
- "the Wagner airport".
[49] These references, in my view, would identify each of the plaintiffs to an ordinary reasonable listener. As observed by Lord Morris in "the average reader does not read a sensational article with cautious and critical analytical care". An ordinary reasonable listener would not necessarily understand the words used by Mr Jones as a reference to a business only and not to individuals. Mr Jones, for example, in referring to "Wagners" uses the personal third person pronoun "they". Similarly he refers to "the Wagners Sand Plant", not "Wagners Sand Plant". In posing the rhetorical question "Does that make Wagner untouchable?" Mr Jones uses the name "Wagner" rather than "Wagners".
(i) each of the plaintiffs were known in the community as brothers, as members of the Wagner family and as being involved in a family business known as 'Wagners';
(ii) the 'community' referred to in particular (i) comprises people throughout Australia, Queensland and the Toowoomba region;
(iii) the plaintiffs were known in the community in the sense described in particular (i) above by reason of [numerous publications]".
These publications extend from May 2002 through to May 2015. For the purposes of the notorious facts pleaded, the plaintiffs may only rely on those publications identifying the plaintiffs as connected to the Wagners' business prior to the date of the second broadcast, being 29 October 2014. The publications from 2002 to October 2014 were tendered.[58] The plaintiffs submit and I accept that the numerous articles from mainstream press and other periodicals are consistent with Wagners being a family-owned company, with each of the plaintiffs as brothers owning and operating the company.[59] This evidence, according to the plaintiffs, is also consistent with the proposition that each of the plaintiffs are the Wagners, the owners of the quarry, to whom the Second Matter refers.[60] While I accept this submission, in determining the issue of identification it is unnecessary to go beyond the natural and ordinary meaning of the words spoken by Mr Jones, as I have already observed. I accept that the reasonable and ordinary listener would not understand that anyone other than the Wagners were referred to.[61]
[51] It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) Orchestrated a disgusting cover-up of his role in the deaths of 19 poor, marginalised people in the Grantham flood disaster, in order to protect his own financial interests; and
- (b) was involved in orchestrating a disgusting campaign of vilification, bullying and intimidation, to prevent the truth coming out at the Grantham Floods Inquiry and prevent being held accountable for the deaths of 19 poor, marginalised people in the Grantham flood disaster.[62]
[52] The plaintiffs do not rely on any extrinsic fact of previous broadcasts in submitting that the Second Matter carried the two pleaded imputations.
[53] The Second and Third Matters complained of were part of the same broadcast on 29 October 2014. The first part of the broadcast consists of a lengthy commentary by Mr Jones in the context of a speech given by Dr Alex Douglas to the Queensland Parliament. In this speech, Dr Douglas called for the establishment of a Royal Commission into what occurred in Grantham in 2011. The second part of the broadcast, which follows on from this commentary and commences at 7.22 am, is an interview conducted by Mr Jones with Mr Cater.
[54] As to imputation (a), this is in similar terms to the imputation which was conveyed by the First Matter. This is unsurprising, as Mr Jones commences the second broadcast by repeating the substance of the first broadcast. The sting of the second imputation is that the plaintiffs were involved in orchestrating a campaign of vilification, bullying and intimidation (as opposed to orchestrating a cover-up).
[55] These imputations are, in my view, conveyed with two insignificant changes. Nowhere is the orchestration of a cover-up referred to in the broadcast as being "disgusting". The word "disgusting" is used once in the broadcast and only in the context of bullying and intimidation. The words "are disgusting" should be removed from the first imputation. I deal with the second change below.
[56] As to imputation (a), the same reasoning in relation to the First Matter applies. The imputation that the plaintiffs orchestrated a cover-up is even more plainly conveyed by this broadcast than the First Matter. Mr Jones makes numerous references to the fact of a cover-up. He asks "Why was the Grantham cover up orchestrated? Who was being protected?" In this broadcast, however, Mr Jones was more specific as to what is being covered up:
"And I say again, this is all part of the mining invasion. Was this cover up to protect Queensland Gas and its major owner, British Gas? After all, the Grantham quarry which accumulated the water and then the banks burst and a tsunami claimed 19 lives. 17 lost, two other persons never found - presumed dead - on the 10th January 2011."
[57] Inexplicably Mr Jones is quite mistaken as to the number of lives lost. Mr Jones then refers to the fact there was no investigation. He again asks, "Why a cover up?" He immediately follows this question with the following statement:
"Well as I said, the quarry was owned by Wagners; they were already in partnership with the Wood Group, the British coal seam gas supply group that works with British Gas. Does that make Wagner untouchable? We've been talking about an ARU cover up of the truth in relation to Kurtley Beale, here's a cover up in relation to the Grantham catastrophe. Why? The answer to both issues is the same: those doing the covering up have a lot to hide."
[58] As to imputation (b), in the course of the broadcast Mr Jones describes the victims at Grantham by adopting the words of Dr Douglas, who identified the victims as "marginalised" and "mostly poor". Mr Jones then provides information from a study that found that 90 per cent of all flood deaths in Australia had, in substance, been the result of risk-taking behaviours. He contrasts this statistic with the flood in Grantham, where 70 per cent of those who lost their lives were at home. This difference in the Grantham Flood event is then explained by Mr Jones by reference to an account of Martin Warburton and the opinion of Mr Cater. He quotes Mr Warburton as saying, "...the water was diverted out of Lockyer Creek at the Wagners Sand Plant site right where a dam wall had been constructed across the creek." It is in this context that Mr Warburton refers to bullying and intimidation which was disgusting when local residents tried to raise the issue regarding "Wagners dam" and its effect. Mr Cater's opinion, which Mr Jones quotes, is that "there is no doubt in my mind that this was man-made disaster".
[59] The broadcast concludes with the story of an encounter between Dr Douglas and the local member, Mr Ian Rickuss. This encounter occurred after Dr Douglas had given his speech to Parliament calling for a Royal Commission:
"He was confronted by the local state member, a member of Newman's team, Ian Rickuss. He came rushing up to Dr Douglas, red-faced and flustered, carrying a pile of books and folders and notes all dog-eared and sticky pads everywhere and he said to Alex Douglas: you need to read this, you didn't read the Flood Report properly, it was all the Council's fault - this is the local Council. Dr Douglas said: Ian, I did read the Flood Report very carefully and I do know whose fault it was. Rickuss then changed tack, going from flustered and desperate to hostile. This is a member of the Newman Government, demanding that Alex Douglas withdraw his call for a Royal Commission because some of Rickuss' best mates may well have been involved in the cover up."
[60] Mr Jones, in speaking of Mr Warburton's experiences, makes a number of references to bullying and intimidation:
- "[Mr Warburton] said: the bullying and intimidation I witnessed - he said to me in a letter - and experienced towards those who stood up and asked questions about the event or made comments during the recovery that authorities didn't agree with, the bullying and the intimidation was disgusting to say the least."
- "He said: Many locals raised the issue regarding Wagners dam and its effect and several community meetings after the event but the issue was always dismissed by authorities."
- "He said: I even raised it with several submissions to the Flood Inquiry; it never got a mention. I was never asked about it when I was on the stand giving evidence at the Flood Inquiry."
[61] The defendants submit that the imputations are not conveyed because the broadcast does not contend that the plaintiffs are responsible for, or knowingly involved in, the orchestration of a cover-up or in a campaign of vilification, bullying and intimidation to prevent the truth of their responsibility for the deaths of people at Grantham from coming out.[63] The defendants further submit in relation to imputation (b) that the reference to the "Grantham Inquiry" is incorrect. I accept that the broadcast in terms refers to the "Flood Inquiry" and imputation (b) should be read as containing a reference to the Queensland Floods Inquiry, rather than the Grantham Floods Inquiry.
[62] The defendants submit that the allegations of bullying and intimidation are not directed at the Wagners but rather at the "authorities". This is said to arise from the words used by Mr Jones that "bullying and intimidation was experienced by those who asked questions or made comments that authorities didn't agree with" and that the issue (regarding the Wagners' dam) was always dismissed "by authorities". This, according to the defendants, makes clear that bullying and intimidation was experienced by those who challenged "the authorities".[64] This submission, however, ignores the primary thrust of the broadcast in which Mr Jones, using an accusatory tone, alleges that the true cause of the deaths from the Grantham Flood event has been covered up and the truth suppressed, and further, that when residents sought to raise their concerns about the Wagners' dam, they were bullied and intimidated. These accusations are conveyed as relating to the Wagners, because Mr Jones explains the need for a cover-up by reference to the quarry being owned by Wagners and the bursting of the banks of the quarry as creating a tsunami which claimed 19 lives. He also questions whether Wagner is untouchable. Mr Jones refers to the persons behind the covering-up as those who have a lot to hide. This conveys to the listeners that the Wagners are the persons who have a lot to hide.
[65] It is in issue whether the Third Matter is of and concerning the plaintiffs.
[66] As I have already observed, the Second and Third Matters complained of are part of the one broadcast on 29 October 2014. The words spoken in the Second Matter are therefore relevant to the question of identification in respect of the Third Matter. As well as the references to the Wagners in the Second Matter, the Third Matter refers to the Wagners as follows:
- "People who were heavily involved in working with Wagners on the Wellcamp Industrial Estate"
- "Wagners quarry"
- "Wagners dam influence"
For the same reasons given in relation to the Second Matter, the Third Matter was of and concerning the plaintiffs.
[67] It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
(a) caused the deaths of 10 adults and two children by crudely constructing an unauthorised levee on the western boundary of his quarry which burst in two places, resulting in lethal waves of millions of tonnes of water flooding into and devastating the rural town of Grantham;
(bb) in the alternative to (a), caused the deaths of 10 adults and two children when a crudely constructed and unauthorised levee on the western boundary of his quarry burst in two places, resulting in lethal waves of millions of tonnes of water flooding into and devastating the rural town of Grantham; and
(b) conspired with Sinclair Knight Merz to cover up the true cause of the Grantham flood which killed 12 people including two children, namely the collapse of a crudely constructed and unauthorised levee bank at his quarry, resulting in lethal waves of millions of tonnes of water flooding into and devastating the rural town of Grantham.[65]
The first two imputations are in the alternative. The only difference between them is whether the plaintiffs constructed the unauthorised levee. These alternative imputations are alleged to be conveyed by a number of the matters complained of.
[68] The plaintiffs rely on the following statements by Mr Jones as conveying the first imputation:
- "... the lethal waves that devastated the rural town of Grantham and drowned ten adults and two children originated in a nearby quarry where an artificial levee, less than ten years old, held back millions of tonnes of storm water before bursting in two places."
- "... since the last significant flood in 1996, an obstacle had been placed in the timeworn path. A crudely constructed levee, three to five metres in height, now stretched for 380 metres, on the western boundary of Wagners quarry. As the deluge hit the bend at a velocity of some five metres per second the kink in the river acted as a pressure valve while the levee held the water back."
- "... if a levee bank constructed without official sanction had not collapsed at the Grantham quarry, ten adults and two children who drowned that afternoon would have had a fighting chance."[66]
[69] The thrust of the interview is a criticism of the findings of the Queensland Floods Inquiry, which Mr Jones notes "found that Grantham was flooded by the natural overflow from Lockyer Creek". It is evident from the broadcast that neither Mr Jones nor Mr Cater accepts this conclusion. Mr Cater states:
"We have the video, the photographic evidence and, of course, hours and hours of eye witness evidence which I've recorded. All points to one thing; it points to a sudden catastrophic influx of water about two metres high which swept through a narrow part of the town - the most densely occupied area. It did not come up from the creek, that was a separate flood earlier."
[70] Mr Jones endorses this approach having earlier stated:
"Now as you have written, and people have written to me, eye witness accounts supported by several hours of video footage and hundreds of photographs paint a picture completely at odds with the Commission's finding that Grantham was flooded by the natural overflow from Lockyer Creek."
[71] In making this statement, Mr Jones gives considerable vocal emphasis to the words "eye witness accounts", "hours" of video footage, and "hundreds of photographs". For the ordinary reasonable listener, the alternative scenario to that found by the Queensland Floods Inquiry, namely lethal waves from the collapse of the levee at the Wagners' quarry, is presented by Mr Jones not as a possible scenario, but rather as a factual assertion of what caused the catastrophic influx of water.
[72] The plaintiffs submit that the ordinary reasonable listener would have understood that it was the Wagners who constructed the levee. While Mr Jones does not explicitly say it, he says the levee is "less than ten years old", and there is no suggestion that the quarry was owned by anyone other than Wagners. This omission, according to the plaintiffs, would have left the ordinary reasonable listener with the impression that it was the Wagners who constructed the levee. Mr Jones does not suggest in the broadcast that anyone else was responsible for the construction of the levee.[67] The defendants' primary criticism of the plaintiffs' pleaded imputations is as follows:
"The listener to a broadcast, particularly a long broadcast covering a number of topics, is likely to pick up on either the general gist of what was said, or alternatively, to become fixed on a short phrase or a few words. It is highly unlikely ... that a listener is able to pick apart all of what is said, and reconstruct a complex and composite meaning from it. The plaintiffs have elected not to plead a general meaning and have instead chosen long and, it seems, carefully planned meanings, almost all of which require a piecing together of different aspects of it over time."[68]
[73] According to the defendants, the true story being told by this broadcast focusses not on the owners of the quarry, but on the failure of the Queensland Floods Inquiry to adequately investigate the cause of the deaths of people in Grantham. These alleged failures of the Queensland Floods Inquiry are used by Mr Jones, however, to lead the listener to a different conclusion than that reached by the Inquiry as to what caused the deaths at Grantham. It is apparent from listening to the broadcast that, based on the evidence of eyewitnesses, hours of video, and hundreds of photographs, it was the breach of the levee at the Wagners' quarry which resulted in "the lethal waves that devastated the rural town of Grantham and drowned ten adults and two children". While the broadcast does not refer to the levee being "unauthorised", reference is made to the levee being constructed "without official sanction". I accept the plaintiffs' submissions that an ordinary reasonable listener would have gained the impression from the broadcast that it was the Wagners who had constructed the levee.
[74] I therefore find that imputation (a) rather than the alternative imputation (bb) was conveyed.
[75] I have, however, formed a different view in respect of imputation (b), which alleges that the plaintiffs conspired with Sinclair Knight Merz to cover up the true cause of the Grantham flood. This imputation is said to arise from the following exchange between Mr Cater and Mr Jones:
"NICK CATER: ... Three people died in that house. So this was an extraordinary event and you'd think that a Flood Commission would go to enormous lengths to find out what happened. But what they did was commission one single hydrology report; that was all. It was by Sinclair Knight Merz, the scientist was Dr Phillip Jordon, he produced his interim report without even visiting Grantham.
ALAN JONES: I'm sorry to interrupt you, but Sinclair Knight Merz have got their hands over everything in Queensland, haven't they? Aren't they the people who were heavily involved in working with Wagners on the Wellcamp Industrial Estate - they're the same people.
NICK CATER: And I think, Alan, we've gotta be very careful with this story, how far we go. There may be cover ups, things that have undoubtedly been covered up - I don't know by who or why. My real concern is just to say let's start by saying what happened on the day and then we'll see what flows from that."
[76] This exchange would not, in my view, have conveyed to an ordinary reasonable listener the pleaded imputation. The exchange makes it clear that it was the Queensland Floods Inquiry that engaged Sinclair Knight Merz. The mere fact that Mr Jones identifies that Sinclair Knight Merz were heavily involved in working with the Wagners on the Wellcamp Industrial Estate does not convey, from a layman's perspective, any sort of agreement or understanding as between the plaintiffs and Sinclair Knight Merz to cover up the true cause of the Grantham Flood event. A listener would have to be avid for scandal to draw such a long bow.
[77] I therefore find that the Third Matter conveyed imputation (a).
[78] There is no issue that, if conveyed, imputation (a) is defamatory of each of the plaintiffs.
[79] The Fifth Matter complained of was broadcast on radio 4BC on 24 February 2015 at approximately 12.52 pm. Attachment 5 to these Reasons is a transcript of the words spoken by Mr Jones.
[80] It is not in dispute that the matter is of and concerning each of the plaintiffs.
[81] It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) knowing that his culpability for the deaths of people in the Grantham flood disaster had been covered up, tried to persuade the Premier that allegations about a coverup were a conspiracy theory; and
- (b) knowing that his culpability for the deaths of people in the Grantham flood disaster had been covered up, persuaded the Premier that she should put her own selfinterest ahead of assisting the truth to come out, and refuse to appear before a Senate inquiry into the disaster.[69]
[82] The plaintiffs' pleaded case is that each of the imputations are conveyed by the natural and ordinary meaning of the words. Alternatively, they allege that the imputations arise by reason of an innuendo meaning, because the audience to whom the broadcast was made would have known of certain facts and thereby would have interpreted the words consistent with the imputations. The facts relied upon are that:[70]
- (a) the town of Grantham experienced a flood disaster which resulted in the deaths of many people;
- (b) Mr Jones had made frequent and repeated allegations that the plaintiffs were responsible for the Grantham flood disaster and the deaths of many people as a result of the disaster and had attempted to cover up their responsibility for the Grantham flood disaster and the deaths of many people as a result of the disaster;
- (c) Mr Jones' previous allegations were made:
- (i) in the First, Second and Third Matters complained of; and
- (ii) by him on his program on 13 October 2014 (commencing at about 7.16 am) and on the "Alan Jones Comments of the Day Program" on radio 4GR on 16 October 2014 (commencing at about 1:51pm); and
- (d) a further inquiry into the Grantham flood disaster had been announced by the Queensland Government.
"So in July/August last year Alex Douglas met with Palaszczuk re- grant them [Grantham] and gave support to Clive Palmer's federal parliamentary inquiry into Queensland. Palaszczuk reportedly told Dr Douglas she knew all about Grantham, knew it was a cover up but quoted; it didn't happen on my watch and she wanted to move on. When the Palmer inquiry was passed by the Senate in September last year Palaszczuk told the media yes she'd be happy to appear before it. By November last year she refused to appear. Why? What was going on? Now we hear that Wagner's people have been visiting Palaszczuk convincing her or trying to that everything about Grantham is a conspiracy. The whole Grantham thing and she needs to lie low and let it pass.
And I understand that Stewart the Police Commissioner is terrified that Grantham will be reopened as an inquiry. Annastacia Palaszczuk the new Premier needs to get a judicial inquiry into Grantham up and running immediately."
[84] The ordinary reasonable listener is informed by this broadcast that the Premier knew all about Grantham and that it was a cover-up. The listener is also informed that Ms Palaszczuk had changed her mind about appearing at a parliamentary inquiry into Queensland. The reason given to the listener for this change is the intervention of "Wagner's people", who have been visiting the Premier. "Wagner's people" have been trying to convince the Premier that everything about Grantham is a conspiracy and that "she needs to lie low and let it pass". These are matters that are conveyed to the listener by the ordinary and natural meaning of the words used by Mr Jones in the broadcast and cover the substance of both pleaded imputations.
[85] The listener is not informed by Mr Jones, however, of what "everything" about Grantham includes. Nor are they informed why "Wagner's people" would need to, or have an interest in, trying to "convince" the Premier that "everything" is a "conspiracy". The plaintiffs submit that this omission invites the ordinary reasonable listener to speculate and to adopt a suspicious approach. The clear impression created, according to the plaintiffs, is that the Wagners had something to hide and a motivation to hide it.[71] The listener is being invited by Mr Jones to speculate that the Wagners are seeking to hide their culpability for the deaths in Grantham.
[86] The plaintiffs submit that this meaning is the natural and ordinary meaning of the words and is not an innuendo meaning. This is because, to the extent the meaning requires knowledge of additional facts, some of those facts were matters of notoriety and would have been known to listeners of Mr Jones' program. In addition, Mr Jones had, by the time of this broadcast, already made allegations that the plaintiffs were responsible for the Grantham Flood event and the deaths of people. He had also made allegations that the plaintiffs had sought to cover up their responsibility for these events, not least in the First, Second and Third Matters.[72] Further, on the Jones Program on 13 October 2014 commencing at about 7.16 am[73] Mr Jones, in interviewing Mr Warburton, referred to Wagners building "a wall of waste from the quarry". This "was a dam wall constructed across the creek". According to Mr Jones, "the wall collapsed", causing the "tsunami" which in turn caused Mr Warburton to say it "was not a normal flood" and that "the destruction that water caused was the result of a man-made construction in a designated watercourse". Mr Jones also referred to Mr Warburton's belief "that there has been a complete cover up". Mr Jones expressed his own belief in a cover-up on the "Alan Jones Comments of the Day Program" on radio 4GR on 16 October 2014.
"Where words are not defamatory in their ordinary meaning, but by reason of special facts are capable of being understood in a secondary and defamatory sense by persons to whom the special facts are known, is it necessary to prove than that there are people who know the special facts, and so might understand the words in a defamatory sense, or must there be evidence that some person did so understand them?"
Goddard LJ considered it unnecessary to call persons to say that they did so understand the words, provided it is proved that there are people who might so understand them. Hough is not authority for the proposition that the plaintiffs had to call witnesses who knew the extrinsic facts and who understood the broadcast in the manner pleaded. The question is not whether an actual witness was called, but rather whether the plaintiffs have established as a matter of inference that the pleaded extrinsic facts would have been known to listeners of Mr Jones' program. The plaintiffs submit that this inference arises because the extrinsic facts were matters of notoriety and would have been known to listeners of Mr Jones' program. In my view, this inference may be drawn in the present case. In considering damages below, I deal with the extent of publication. Suffice to say, Mr Jones had an extensive listening audience. One of the exceptions to the requirement to identify or call witnesses to prove particular knowledge of extrinsic facts is where the publication has a wide circulation and the only reasonable inference is that some of the readers must have knowledge of the relevant facts.[78] An inference may be drawn that listeners who had heard the previous broadcasts would have had knowledge of the pleaded extrinsic facts. By the time of this broadcast Mr Jones had already made allegations that the plaintiffs were responsible for the Grantham Flood event and the deaths of people. He had also made allegations that the plaintiffs had sought to cover up their responsibility for these events.
[89] As to imputation (b), it arises out of that part of the broadcast which states that "Wagner's people" are seeking to convince the Premier that "she needs to lie low and let it pass". "It" is a reference to "the whole Grantham thing". The plaintiffs submit that the ordinary and natural meaning of these words is that the plaintiffs were seeking to convince the Premier that it was in her own interest "to lie low and let it pass". I accept that such an inference arises. These words are vocally emphasised by Mr Jones. Further, the meeting between the Premier and "Wagner's People" is said to have taken place after the Premier had already informed Dr Douglas that, although she knew "Grantham" was a cover-up, it did not occur on her watch. Mr Jones suggests to the listener that it is this meeting between the Premier and "Wagner's people" which answers his questions as to why the Premier changed her mind about appearing before the Senate Inquiry.
[90] Both imputations are conveyed.
[91] There is no issue that, if conveyed, the imputations are defamatory of each of the plaintiffs.
[92] The defendants do not seek to defend these defamatory imputations. As discussed below in relation to damages, I consider these imputations to be very serious.
[93] The Sixth Matter was broadcast on radio 4BC on 26 February 2015 at approximately 12.53 pm. Attachment 6 to these Reasons is a transcript of the words spoken by Mr Jones.
[94] There is no issue that the matter is of and concerning each of the plaintiffs.
[95] It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) was a corrupt businessman in that he was able to build an airport in breach of all laws by reason of his connections with the Premier, Campbell Newman, and other officials in local government and state government;
- (b) had constructed an airport in Toowoomba and had broken all the rules in the construction of the airport.[79]
[96] The Sixth Matter is a short broadcast. Mr Jones adopts a sarcastic tone of voice in which he commences by sending "a cheerio call" to "Mr Wagner in Toowoomba". Mr Jones then asserts as a fact that the airport was built "breaking all the rules". Mr Jones immediately follows this factual assertion by referring to Mr Wagner's "mate" Campbell Newman, who "said it was all legal". The tone used by Mr Jones is sardonic. It suggests to the listener that the construction of the airport is anything but legal. The person who is saying "it was all legal" is Mr Wagner's "mate", Campbell Newman. Mr Jones then suggests to the listener that Mr Wagner had "mates" both in town hall and George Street, including Campbell Newman and Mr Seeney. Mr Jones concludes the broadcast by telling the listener in respect of Mr Wagner, "All things come to those who wait".
[97] Imputation (a) is more serious than imputation (b) in that it alleges that each of the plaintiffs was a corrupt businessman. Another difference between the meanings is that one refers to "laws" and the other to "rules". The defendants submit that the fact the plaintiffs recognise this distinction gives effect to the proposition that the ordinary reasonable listener would not equate the two.[80] According to the defendants, the natural and ordinary meaning of a "rule" does not include any reference to laws:
"There are legal consequences for breaching laws. Rules in contrast reflect standards, and carry lower, or perhaps no enforceable consequences for their breach. Rules are broken - laws are breached. That is why, for example, games are regulated by rules formulated by governing bodies, but it is a parliament that makes a law."[81]
[98] While a lawyer may draw such a distinction between "rules" and "laws", how the ordinary reasonable listener determines meaning is "a matter of impression".[82] As I have already observed, this broadcast was delivered by Mr Jones in a sarcastic tone. Immediately after he refers to the fact of the airport being built breaking all the rules, he refers to Campbell Newman stating that it was all legal. That is, Mr Jones confabulates "rules" and "laws" by referring to Mr Newman's opinion as to legality. Given the broadcast is delivered in a sarcastic tone, Mr Jones in effect invites the listener not to believe the statement of Mr Newman that the construction of the airport is "all legal". An ordinary reasonable listener would gain the impression that Mr Wagner, in constructing the airport, had in fact acted illegally.
[99] Mr Jones offers to the listener a ready explanation for why Mr Wagner could construct an airport by breaking all the laws, namely because he has mates both in town hall and George Street. An ordinary listener, unlike a lawyer, will draw implications much more freely, especially when they are derogatory.[83] By insinuating that Mr Wagner has broken all the laws in building the airport and could do so because he had mates in both town hall and George Street carries, in my view, a meaning that Mr Wagner was a corrupt businessman.
[100] The second imputation is conveyed by the actual words used by Mr Jones.
[101] Both imputations are conveyed.
[102] It is in issue whether imputation (b) is defamatory. The defendants submit that the imputation that the plaintiffs had broken all the rules in the construction of the airport is not defamatory because the imputation does not suggest that there was anything wrongful in how the rules may have been broken:
"The rules may have been broken, but it is not put in a wrongful way - for example, it might equally be said of a meaning of this kind that all the rules as to construction had been broken by coming in on time and under budget. Equally, there is no allegation of knowledge - that the plaintiffs knew they were breaking the rules."[84]
[103] The common law test of what is defamatory in relation to each imputation found to be conveyed is "whether the published matter is likely to lead an ordinary reasonable person to think less of the plaintiff".[85] The words of the broadcast are not to be parsed and analysed. As correctly submitted by the plaintiffs, an imputation is simply a distillation of the defamatory meaning that the plaintiffs contend was conveyed by the publication. It takes its colour from the matter complained of that gives rise to it.[86]
[104] In my view, the broadcast conveys to the listener that Mr Wagner, in breaking all the rules in constructing the airport, has acted wrongfully. The wrongfulness of Mr Wagner's actions is conveyed by Mr Jones' sarcastic tone throughout the broadcast. Both the tone and the subject matter of the broadcast conveys to the ordinary reasonable listener that each of the plaintiffs had acted wrongfully in breaking all the rules in constructing the airport.
[105] To accuse a person of wrongfully breaking all the rules in building an airport is likely to lead an ordinary reasonable person to think less of the person. Imputation (b) is defamatory.
[106] The Seventh Matter was broadcast on radio 2GB on 9 March 2015 at approximately 7.40 am. Attachment 7 to these Reasons is a transcript of the words spoken by Mr Jones.
[107] 2GB and Mr Jones admit that the Seventh Matter is of and concerning the plaintiffs.
[108] It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) caused the deaths of 13 people by illegally constructing a dam wall across Lockyer Creek which collapsed, releasing a tsunami-like wall of water that engulfed Grantham;
(aa) in the alternative to (a), caused the deaths of 13 people when an illegally constructed dam wall across Lockyer Creek collapsed releasing a tsunami-like wall of water that engulfed Grantham;
(b) was a callous and selfish person who did not worry about his legal and moral responsibility for the deaths of 13 people in the Grantham flood disaster;
(c) was knowingly involved in a massive cover-up of the cause of the Grantham flood disaster, in order to protect himself from being held to account for the deaths of 13 people in the disaster; and
(d) was involved in disgusting bullying and intimidation of witnesses at the Grantham Floods Inquiry, in order to protect himself from being held to account for the deaths of 13 people in the Grantham flood disaster.[87]
[109] In this broadcast Mr Jones makes the following statements:
- "And you've heard me, I said it was a massive cover-up."
- "He [Mr Warburton] said the water had been diverted out of Lockyer Creek at the Wagners sand plant site, right where a dam wall had been constructed across the creek, and the dam wall in my view illegally constructed, because it was of waste in the quarry, the dam wall in the Wagner quarry collapsed."
- "Marty Warburton said to me what happened on that day was not a normal flood and the violence and the destruction that water caused was the result of a man-made construction in a designated water course, man-made. Wagner Quarry, Wagner of the Wellcamp Airport, please yourself, get your own way, do what you like, don't worry about anything."
- "There was a flood inquiry. Marty Warburton raised all this with the flood inquiry, quote: it never got a mention. He said to me the bullying and intimidation I witnessed and experienced towards those who stood up and asked questions about the event or made comments during the recovery that authorities didn't agree with, the bullying and the intimidation was disgusting."
- "He said to me on this program, many locals raised the issue regarding Wagner's dam and its effect at several community meetings after the event but the issue was always dismissed by authorities."
- "This is Queensland, Grantham. A complete cover-up."
- "This was, as I said, a cover-up from day one."
- "The question now is, what will the new Premier Palaszczuk do? I'll tell you what she should do. There needs to be a major inquiry into Grantham alone."
- "And of course, the residents have said all along and I've said all along, the water wasn't along the banks of the Lockyer Creek; the people there survived. The houses were hardly affected. It was the people more than a kilometre from the creek along the Gatton Helidon Road that bore the brunt of the deadly force."
- "And those people have claimed all along the collapse of the Wagner Quarry's levee or embankment, three metres to five metres high, and 380 metres long - 380 metres long - had released a wall of water that engulfed Grantham."
- "This is disgraceful stuff."
- "It is a scandal, one of the many that resulted because the Newman Government had a chance to do something about this and they promised they would and they did nothing, because their mates got at them - don't do anything."
[117] The Eighth Matter was broadcast on radio 2GB on 10 March 2015 at approximately 6.48 am. Attachment 8 to these Reasons is a transcript of the words spoken by Mr Jones.
[118] The defendants deny that the Eighth Matter is of and concerning the plaintiffs. The Eighth Matter contains similar references to the plaintiffs as the Second and Third Matters. It refers to "Wagners sand plant quarry where a dam wall had been constructed", "the Wagner quarry" and "Wagner's dam". As to identification, the plaintiffs further rely on Mr Jones' concluding words: "Grantham [is] a complete cover up. I've got news for all of them. No more." In its proper context, as submitted by the plaintiffs, the reference to "them" is a pronoun referring to two or more people.[95]
[119] For the reasons stated in [47] to [50] above, the Eighth Matter was of and concerning each of the plaintiffs.
[120] It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) caused the deaths of 12 people by constructing a dam at his quarry across Lockyer Creek which collapsed under the weight of water, causing the Grantham flood;
(aa) in the alternative to (a), caused the deaths of 12 people when a dam at his quarry constructed across the Lockyer Creek collapsed under the weight of water, causing the Grantham flood; and
(b) in concert with the flood inquiry and authorities, conspired in a cover-up of his culpability for the deaths of 12 people in the Grantham flood, as well as a disgusting campaign of bullying and intimidation of anyone who stood up and asked questions or raised issues about his role in causing the flood.[96]
[121] The content of this broadcast repeats what had already been said by Mr Jones in the Seventh Matter. In listening to this broadcast, however, it is apparent that Mr Jones takes on an accusatory tone. One of the passages from the broadcast states:
"Marty Warburton pointed out how it happened. He'd seen 14 floods in 21 years. He said it wasn't a normal wall of water. He said the water had been diverted out of Lockyer Creek at the Wagners sand plant quarry where a dam wall had been constructed across the creek and the dam wall in the Wagner quarry had collapsed through the force of water."
[122] In referring to "Wagners sand plant quarry" and "a dam wall", Mr Jones slows his delivery and emphasises each of these words by separating them. Later in the broadcast he adopts a similar delivery technique in saying the words "a man made construction in a designated water course". Prior to emphasising these words, Mr Jones had yet again recounted Mr Warburton's terrible experiences in the course of the flood disaster which included the following:
"And then he said this; I saw arms flapping around like someone trying to swim. I leant over the awning, he climbed up to get safety from the water and grabbed the hand of the person to drag them onto the awning. As I pulled on the arm the person rolled over and their whole face was missing. I saw right into their skull. In shock I let go. This still haunts me to this day."
Mr Jones recounted the same story in the Second and Seventh Matters complained of. The retelling of Mr Warburton's horrific experience is followed by Mr Jones informing the listener of Mr Warburton's explanation as to how "it" happened.
[123] Similar to the Third and Seventh Matters, imputations (a) and (aa) are alternatives. The defendants submit that neither of these alternative imputations arise, because the ordinary reasonable listener would not conclude anything adverse against the plaintiffs where the sting is directed not at a personal condition of their own, but at an event that occurred at their property, for which no blame is laid. There is, for example, no suggestion in the Eighth Matter complained of that the dam wall had been constructed illegally or negligently or improperly. Merely having a dam wall at the Wagner quarry collapse under the weight of water behind it does not, according to the defendants, equate to an allegation that the Wagners caused the deaths of people in the flood.[97] The difficulty I have with this submission is that Mr Jones in the broadcast, with some emphasis, states that a dam wall had been constructed across the creek, and that the dam wall in the Wagner quarry had collapsed through the force of water. Mr Jones refers to this as a "man made construction in a designated water course". The inference that a listener would draw is that it was the Wagners who were responsible for building a dam wall in a designated watercourse. It is the collapse of this dam wall which is referred to for the purposes of explaining "how it happened". While Mr Jones does not explain what "it" is, Mr Jones has introduced Mr Warburton to the listener as "one of the witnesses to all of this at Grantham where 12 people died and no one has bothered to find out how". The structure of the broadcast and the words Mr Jones emphasises would convey to an ordinary reasonable listener that the Wagners were responsible for constructing a dam wall at the quarry, the collapse of which caused the Grantham flood. Imputation (a) is conveyed.
[124] Imputation (b) is said to be conveyed by the second part of the broadcast. The plaintiffs submit that the statements made in the second part of the broadcast invite speculation as to two matters: who was responsible for the bullying and intimidation of people, and who was involved in the cover-up. Mr Jones having provided no answers, the plaintiffs submit that the listener is invited to speculate as to who was involved in the cover-up. The difficulty with imputation (b) is that the meaning encompasses a conspiracy between the Queensland Floods Inquiry, the authorities, and the plaintiffs in a cover-up of the plaintiffs' culpability for the deaths of 12 people in the Grantham flood. This alleged conspiracy extends to "a disgusting campaign of bullying and intimidation". I accept the defendants' submission that the ordinary reasonable listener would not derive a meaning that implicated the plaintiffs in a cover-up and bullying and intimidation "in concert" with others, including "the authorities" and the "flood inquiry". I accept that only a mind avid for scandal would consider the plaintiffs implicated in corrupt activity of this kind in listening to this broadcast.
[129] The Ninth Matter was broadcast on radio 2GB on 11 March 2015 at approximately 8.10 am. Attachment 9 to these Reasons is a transcript of the words spoken by Mr Jones.
[130] 2GB and Mr Jones admit that the Ninth Matter is of and concerning each of the plaintiffs. This is unsurprising as Mr Jones in the course of the broadcast refers to "the quarry owner" as "the Toowoomba based Wagner Brothers of Wellcamp Airport infamy", and to "the Wagner Brothers".
[131] It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) caused the deaths of 12 people by constructing a wall at his quarry that burst, unleashing a veritable tsunami causing the 2011 Grantham flood which deaths could have been completely avoided had he not constructed the wall;
- (b) callously refused to admit to his legal liability for the deaths of 12 people in the Grantham flood disaster, when a man-made wall at his quarry burst, causing a veritable tsunami that killed 12 people;
- (c) sold his quarry in order to attempt to evade his legal liability for causing the deaths of 12 people in the Grantham flood disaster;
- (d) lied publicly in claiming that the embankment at his quarry was part of the natural landscape rather than being man-made, in order to evade his legal liability for the deaths of 12 people after the embankment collapsed; and
- (e) was a callous and selfish person in that he built an airport without an environmental impact statement, a health impact statement, a community impact statement, a water impact statement, and without any compensation for people living in hopeless proximity to the airport.[102]
[132] Mr Jones commences the broadcast by stating that he will be returning to the Grantham issue "in order that justice be done to the families of the 12 people killed in that flood in 2011". He refers to a Victorian-based law firm, Maddens, undertaking several site visits to Grantham and issuing the Wagner brothers with a formal demand seeking an admission of liability or voluntary mediation. Mr Jones then makes the following reference to the Wagner brothers:
"This is the airport mob, Wagner used to get his own way, no longer. No admission has been forthcoming from Wagners, the owners of the quarry. As soon as they knew they were in trouble though, they sold it. And that was the quarry - they were the quarry walls that burst and a veritable tsunami ensued."
[133] After referring to the Wagner brothers as being "of Wellcamp Airport infamy", Mr Jones makes the following statement in relation to the airport:
"You see, the Wagner Brothers are used to getting their own way, doing as they liked. Build an airport - no environmental impact statement, no health impact statement, no community impact statement, no water impact statement, nothing, just build it. No compensation for those living in hopeless proximity to the airport."
[134] Mr Jones then refers to the embankment at the quarry: "Well of course the Wagners say the embankment was part of the natural landscape. That is a palpable untruth. Locals know the quarry was manmade." Mr Jones again emphasises that no admission has been forthcoming, no voluntary mediation has taken place as requested by Maddens. He then refers to the Grantham Flood event in these terms: "This was not an act of god, this devastation was brought about by human intervention, it could have been avoided." He then suggests to the listener that they should go to Facebook and check the maps: "...it'll frighten the hell out of you".
[135] I accept the plaintiffs' submission that Mr Jones' tone is determined, indignant and accusing. When mentioning the plaintiffs his tone is contemptuous.[103]
[136] As to the Ninth Matter, the plaintiffs submit as follows:
"Overall, the Ninth Matter was calculated to leave the ordinary reasonable listener with the impression that the plaintiffs caused the deaths of those 12 people in Grantham, a tragedy brought about by human intervention. That human intervention they are told is a man-made wall, of dubious legality, which burst releasing a tsunami. In addition to this, the ordinary reasonable listener would have understood Mr Jones to be saying as a matter of fact that the Wagners are in trouble for these events, and that this trouble was so serious that they sold the quarry. The sale of the quarry - which occurred as soon as they 'knew they were in trouble' - could only have been done to avoid liability."[104]
For these reasons, the plaintiffs submit that imputations (a), (b) and (c) are conveyed. I accept this submission. The tone of the broadcast and the derogatory way in which Mr Jones refers to the plaintiffs conveys these three imputations. Mr Jones informs the listener that he is pursuing the Grantham issue in order that justice be done to the families of the 12 people killed. He refers to Maddens having undertaken site visits to Grantham and spoken to residents. It is in this context that Mr Jones specifically refers to the quarry walls bursting and a veritable tsunami ensuing. The bursting of the quarry walls is later referred to by Mr Jones as "not an act of god". The devastation, according to Mr Jones, was brought about by human intervention and could have been avoided. On listening to the broadcast imputation (a) would, in my view, be conveyed to the ordinary reasonable listener. So too imputation (b). Mr Jones refers to "Wagner" as someone who "used to get his own way, no longer". This is in the context of Maddens having requested an admission of liability or voluntary mediation. The inference is that the plaintiffs are forestalling the justice for the families that Mr Jones is seeking by not admitting liability. The plaintiffs have pleaded that imputation (b) includes that this refusal to admit legal liability was callous. The defendants correctly submit that the word "callous" was not said by Mr Jones in the course of the broadcast. A similar criticism is made of the use of the word "callous" in relation to imputation (e). The question is not, however, whether the word was used, but rather what an ordinary reasonable listener would infer from the words actually used and the tone used in the delivery. Mr Jones twice refers to the Wagners as people who are used to getting their own way. He also refers to the Wagners as "doing as they liked". In the context of the broadcast, an ordinary reasonable listener would infer that in refusing to admit their legal liability the Wagners are callous people. Imputation (b) is conveyed.
[137] As to imputation (c), this arises from the ordinary natural meaning of the words used by Mr Jones, namely, "As soon as they knew they were in trouble though, they sold it". An inference that the Wagners did this to evade legal liability may be readily drawn from these words; in particular, the timing of the sale of the quarry is equated by Mr Jones to the time when the plaintiffs first "knew they were in trouble".
[138] Similarly with imputation (d), this also arises from the words used by Mr Jones to the effect "of course the Wagners say the embankment was part of the natural landscape", which Mr Jones describes as a "palpable untruth". The ordinary reasonable listener would have understood this to mean that each of the plaintiffs lied publicly in claiming that the embankment was part of the natural landscape rather than man-made. It is a ready inference to draw that this lie was told in order to avoid legal liability for the deaths of 12 people after the embankment collapsed.
[139] As to imputation (e), the derogatory tone in which Mr Jones refers to the Wagners, and his description of their lack of regard for both community and environmental concerns, would convey to the ordinary reasonable listener that each of the plaintiffs was a callous and selfish person.
[140] I determine that each of the five pleaded imputations are conveyed.
[141] 2GB and Mr Jones admit that if imputations (b) to (e) are conveyed, they are defamatory. They do not admit that imputation (a) is defamatory on the same basis that I have already rejected in [127] above. Each of the five pleaded imputations conveyed by the Ninth Matter complained of is defamatory.
[142] The Tenth Matter was broadcast on radio 2GB on 12 March 2015 at approximately 7.52 am. Attachment 10 to these Reasons is a transcript of the words spoken by Mr Jones.
[143] There is no issue that the Tenth Matter is of and concerning each of the plaintiffs.
[144] It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) built an airport without seeking proper approvals which he knew were required with disgraceful disregard for the interests of the community;
- (b) caused the deaths of 12 people by constructing a massive wall at his quarry that collapsed under the weight of water, unleashing a tsunami, in the 2011 Grantham flood;
- (c) has engaged in a cover-up of his culpability for the deaths of 12 people in the 2011 Grantham flood, thereby denying the prospect of justice for the still grieving townspeople of Grantham; and
- (d) told a disgraceful lie by stating that a massive wall that he constructed at his quarry and which collapsed unleashing the tsunami that caused the 2011 Grantham flood that killed 12 people, was part of the natural landscape.[105]
[145] Mr Jones in this broadcast speaks with great conviction. Near the beginning of the broadcast Mr Jones refers to the fact that he has been campaigning almost alone in relation to the Grantham Flood event for years. He continues:
"... it now appears that the Toowoomba-based Wagners are in the eye of the storm. They thought they could get away with building an airport without seeking proper approvals because they had a gutless council, The Toowoomba Regional Council, and they had the Newman Government's ear so the community were walked all over. Then the quarry; they created a wall around the Grantham sand quarry. Typically Wagners; what they didn't need from the process they just parked alongside the quarry and built it up, and up, and up, and up, creating a massive wall. Wagners dishonestly have said it was part of the natural landscape; that's a lie, it was man made. The quarry then became a bathtub, and at a focal point in the 2011 floods the weight of the water collapsed the embankment wall, and a tsunami happened in seconds."
[146] Later in the broadcast Mr Jones states:
- "Significantly Wagners couldn't wait to sell the quarry in the same years the floods to Boral."
- "Grantham residents are considering a class action against Wagners."
- "Maddens a Victorian law firm has visited the town."
- "It's game on and there are plenty of people cheering from the sidelines at the prospect of justice to these still grieving townspeople, and that justice may at last be done."
- "All eyes on Annastacia Palaszczuk. There has to be an inquiry into this cover-up."
- "Independently of that it's hard to escape the conclusion that the lawyers on behalf of the residents have a massive case against Wagners. I think some people call it Karma, don't they?"
[147] In listening to this broadcast, the ordinary reasonable listener would gain the distinct impression that after a lengthy campaign, conducted by Mr Jones, justice is finally coming for the residents of Grantham against those responsible, the Wagners.
[148] As to imputation (a), the defendants accept that the first part of that imputation is conveyed. The defendants submit, however, that the words "disgraceful disregard for the interests of the community" are not conveyed:
"... it becomes necessary to ask whether it is merely the fact that the airport was built without approvals that constitutes the disgraceful disregard for the interests of the community, or whether that condition is said to be additional to the act of building without approvals - was there something about the building process that meant that it should be understood that the plaintiffs 'built an airport ... with disgraceful disregard for the interests of the community'? Such uncertainty in meaning which is not the responsibility of ambiguity in the publication, means that the plaintiffs' meaning will not arise. The ordinary listener will not, through implication, land at a meaning that fails to distil the broadcast to its natural meaning."[106]
[149] I do not accept this submission. Mr Jones goes well beyond simply alleging that the Wagners built an airport without seeking proper approvals. He refers to the plaintiffs thinking they could get away with building an airport without seeking proper approvals because of their connections. This permitted the Wagners to walk all over the community. Mr Jones then infers that this type of attitude is reflected in the plaintiffs' operation of the quarry. In this regard he refers to the building up of the massive wall as "typically Wagners". All this is said in the implied context of the Wagners finally being made to answer for their role in the Grantham floods, described by Mr Jones as a "cover-up".
[150] Imputation (b) is conveyed by the words "deadly Grantham floods", which killed 12 people. The construction of the wall at the quarry is referred to by Mr Jones as being "typically Wagners". Mr Jones identifies the Wagners as the people responsible for "creating a massive wall" at the quarry. Mr Jones, as a factual assertion, unequivocally tells the listener that "the weight of the water collapsed the embankment wall, and a tsunami happened in seconds. Twelve people had no hope, they lost their lives." Although Mr Jones in the course of this broadcast calls for a fresh inquiry, he is as early as 12 March 2015 unequivocally informing his listening audience that it was the collapse of a massive wall created by the Wagners at their quarry which resulted in a tsunami causing the deaths of 12 people. No inference is required to be drawn by the ordinary reasonable listener for imputation (b) to be conveyed. It is, in my view, conveyed by the ordinary and natural meaning of the words used by Mr Jones.
[151] As to imputation (c), the defendants submit that there is no obvious link between the allegation of a cover-up and the plaintiffs so as to mean that the broadcast would be understood as including an inference that the plaintiffs had engaged in a cover-up of their culpability for the deaths of people in Grantham. This submission ignores the primary thrust of the broadcast, which is that the Wagners are finally facing justice. Mr Jones specifically calls for an inquiry into "this cover-up". He refers to the "Toowoomba-based Wagners" as being "in the eye of the storm". Prior to using the word "cover-up" he states, "Significantly Wagners couldn't wait to sell the quarry in the same year as the floods to Boral". Mr Jones also makes reference to justice at last being done. The inference that the Wagners have been involved in this alleged cover-up (especially given their connections) is irresistible. Imputation (c) was conveyed.
"... what is the utility it must be said, in adding that the lie told in relation to the quarry was a disgraceful one. Must it be assumed that not all lies are disgraceful, but that the lie told here, for some reason, lies in that category - that it was said to be an odious, or contemptible lie? It is difficult to understand why the plaintiffs continue to add adjectives of this kind, when to do so stretches beyond reason the words employed in the broadcast."[107]
What makes the lie disgraceful in the context of this broadcast is that Mr Jones unequivocally asserts that it was the collapse of the massive, man-made wall which caused the deaths of 12 people. Such a lie in this context may be viewed by an ordinary reasonable listener as a disgraceful lie; that is, a shameful, dishonourable or disreputable lie. It is such a lie because it is told to avoid culpability for the deaths of 12 people.
[153] I determine that each of the four pleaded imputations are conveyed.
[154] The defendants accept that, if conveyed, imputations (a), (c) and (d) are defamatory. The defendants deny that imputation (b) is defamatory, on the same basis that I have already rejected. Each of the four imputations conveyed are defamatory.
[155] The Eleventh Matter was broadcast on radio 2GB on 17 March 2015 commencing at about 7.16 am. It comprises words spoken by Mr Jones and Mr Cater. Attachment 11 to these Reasons is a transcript of these words.
[156] It is not in issue that the Eleventh Matter is of and concerning the plaintiffs.
[157] It is in issue whether the imputations were conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) dishonestly tried to get away with building an airport in Toowoomba without seeking proper approvals from the Toowoomba Regional Council, because he knew the Council was gutless and the state government was on side, letting him walk over the community;
- (b) built the infamous Wellcamp Airport in disregard of the interests of the community without first obtaining, as he was required to do, an environmental impact statement, a health impact statement, a community impact statement or a water impact statement, or paying the compensation owing to those adversely affected because they lived in close proximity to the airport;
- (c) caused the deaths of 12 people by constructing a massive wall at his quarry that collapsed under the weight of water, causing the 2011 Grantham flood;
- (d) told a disgraceful lie by stating that a massive wall that he constructed at his quarry, and which collapsed, causing the 2011 Grantham flood that killed 12 people, was part of the natural landscape; and
- (e) engaged in a cover-up of his culpability for the deaths of 12 people in the 2011 Grantham flood, thereby denying the prospect of justice for the still grieving townspeople of Grantham.[108]
[158] The plaintiffs' pleaded case is that they rely on imputations (a) and (b) as against 2GB and Mr Jones and imputations (c), (d) and (e) as against 2GB, Mr Jones and Mr Cater.
[159] Prior to introducing Mr Cater, Mr Jones largely repeats what he said in the Tenth Matter. Additionally, Mr Jones refers to a hydraulic report by DHI commissioned by The Australian newspaper. He states:
"After a massive agitation from a range of people - I was one of them - the hydraulic engineers DHI found the collapse of the quarry wall meant that the flood had occurred more quickly, there was less time for evacuations and the quarry owner, as I said, was the Toowoomba based Wagner brothers of Wellcamp Airport infamy."
[160] Mr Jones then introduces Mr Cater as "the quite brilliant and internationally acclaimed journalist". Mr Jones emphasises how much work Mr Cater has done in relation to the Grantham Flood event:
"Nick Cater has done phenomenal work on this. He's analysed. He's investigated from every which way. He went there. He's talked to everybody. He saw the helicopter photos. He's seen video evidence. He's read all the reports. He's seen hundreds of photographs. He's read the harrowing accounts given to the Coroner and he shares the view that I share; this must be the subject of a major inquiry."
[161] Mr Cater in identifying the cause of the devastation states:
"It never seemed to make any sense at all to me, the line that was being put by the official flood commissions that this was simply an act of God, that nothing could be done to avoid this because when you go there and look at the evidence on the ground, you talk to people, everything points to one thing and that is this massive wall of water two to two-and-a-half metres high that just came sweeping through the town with no warning whatsoever.
That had to be started by something and all the evidence points as you just said to the wall at the quarry that collapsed. It was like a break in a dam. The water gushes out with huge velocity and huge force and that was in the end what caused the damage, what kills people.
It's very hard to escape the conclusion that if it was not for the quarry wall twelve people would not have lost their lives that day and yet it's taken so long as you know, Alan, more than four years now of battling to try and get close to the truth, to try and establish the truth. I believe that we are close now and that the [DHI] report backs us all the way on this. It's still a long way to go."
[162] Mr Jones and Mr Cater then proceed to make various criticisms of the Queensland Floods Inquiry and cast doubt on the findings of the hydrologist engaged by the Inquiry, Dr Phillip Jordan. Mr Cater concludes the interview with Mr Jones by calling for a fresh inquiry.
[163] As to imputation (a), the defendants submit that the relevant words of the broadcast, which are not materially different to the Tenth Matter, do not support a meaning of dishonesty. There is, for example, no suggestion of deceitful behaviour. According to the defendants, the listeners are told that the Wagners thought they could get away with building the airport without seeking the proper approvals because it was something that could be achieved given the local council and state government were on side - not because the relevant decision-makers were deceived by the plaintiffs as to proper approvals to be obtained.[109] I do not accept this submission. Mr Jones informs the listener that "the Toowoomba based Wagners are now in the eye of the storm. They thought they could get away with building an airport without seeking proper approvals because they had a gutless council on side and the Newman Government on side and the community were walked over, then the quarry." Mr Jones is suggesting to the listener that the Wagners sought to get away with something that they ought not get away with. That is, the listener is asked to infer that the Wagners ought to have built the airport by seeking proper approvals. The reason given for why they thought they could get away with it was they had a "gutless council on side and the Newman Government on side". This resulted in the community being walked over.
[164] The plaintiffs submit that this creates a clear impression that the Wagners have engaged in something that they knew was either bad or wrong and for which they should be held to account. That is the message that would have been conveyed to the ordinary reasonable listener. Mr Jones, by drawing a connection between the Wagners getting away with something and an association with government, suggests something less than honest. As submitted by the plaintiffs, the statements as delivered invite the listener to adopt a suspicious approach to what they are being told. The listener, who is expected to engage in a degree of loose thinking, is given the impression that there is something distinctly underhanded about the complete lack of approvals and the Wagners' connection with government. The implication to be drawn from this, and which the ordinary reasonable listener would have drawn, was that there was something dishonest about the entire process, albeit they are not in direct terms told what that dishonesty was. That process permitted the Wagners to build an airport without proper approvals and meant that the "community were walked over". The broadcast creates this impression, namely that the Wagners have dishonestly tried to get away with building an airport without seeking proper approvals. Imputation (a) was conveyed.
[172] The Eleventh Matter complained of is the only cause of action pleaded by the plaintiffs against Mr Cater. His liability is to be considered separately.
[173] As against Mr Cater, the plaintiffs' pleaded case is that they rely on imputations (c), (d) and (e) as being conveyed by the Eleventh Matter.[113] In their written submissions, however, the plaintiffs limit the case against Mr Cater to imputation (c) being conveyed.[114] Mr Cater admits publication of the words attributed to him in the Eleventh Matter.[115]
[174] From the plaintiffs' written submissions it is apparent that Mr Cater's liability is sought to be established on the basis that he was an accessory to the publication of the Eleventh Matter and "conduced to the publication by Mr Jones and [2GB] in a number of ways".[116] "Conduce" has the meaning of "helped bring about a result".
[175] The plaintiffs rely on the principle that any person who publishes or participates in a publication of defamatory matter may be liable in respect of it. In Webb v Bloch[117] Isaacs J identified the principle by reference to Starkie on the Law of Slander and Libel:
"'All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected.' In R v Paine it is held: 'If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty' ... In The Queen v Cooper Lord Denman CJ said: 'If a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request: he contributes to a misdemeanour and is therefore responsible as a principal.'"
[176] The plaintiffs identify five matters by which it is alleged that Mr Cater conduced to the publication of the Eleventh Matter.
[177] First, Mr Cater sent an email on 13 October 2014 to Mr Jones in which he asserted that "there was no doubt" in his mind that the Grantham flood "was a man-made disaster".[118] The plaintiffs submit that there is a clear inference arising from this email that Mr Cater was doing as much as possible to encourage Mr Jones to give the Grantham issue, and his theory about it, air time: "He would not have been writing to Mr Jones if he didn't want Mr Jones to broadcast that Grantham was 'a man-made disaster' in respect of which justice had not been done."[119] The email reads as follows:
"Alan, thanks for giving Marty Warburton a voice this morning. As you know I have spent considerable time examining the circumstances of the Grantham flood. There is no doubt in my mind that this was a man-made disaster. It should be fully investigated. There must be a professional review of the hydrology report accepted by the floods commission. My heart goes out to the people [of] the Lockyer Valley who suffered in the flood and continue to suffer because they feel no one believes them. This is Australia and they deserve better. Nick Cater."
[178] Second, Mr Cater sent Mr Jones a six page letter dated 14 October 2014[120] which includes the following statements:
"I am writing to you in a private capacity to thank you for drawing attention to the unanswered questions about the circumstances that led to the fatal flash floods in Toowoomba an [sic] the Lockyer Valley on the afternoon of January 10, 2011.
... The flood waves that devastated the town of Grantham and drowned 10 adults and two children originated at Grantham quarry where an artificial levee, less than 10 years old, held back millions of tons of stormwater before bursting in two places.
Eyewitness ... accounts supported by several hours of aerial video footage and hundreds of photographs paint a consistent picture at odds with the commission's finding that Grantham was flooded by the natural overflow from Lockyer Creek.
The most serious damage, however, was caused by a second torrent, many times more powerful than the first. It came in a straight line from Grantham Quarry, 2.5 km to the west, and swept in waves more than two metres high along the Gatton-Helidon Rd, where nine of those killed live.
Since the last significant flood in 1996, however, an obstacle had been placed in the time worn path. A crudely constructed levee, three to five metres high, now stretched for 380 metres on the western boundary of Wagner's Quarry.
As the roaring creek struck the tight bend at a velocity of some 5 metres a second the kink in the water swirled back on itself, ... creating a temporary reservoir covering 100 hectares of more of farmland, an affect [sic] hydrologists describe as ponding.
Prompted by the concerns of local people, the Commission of Inquiry made some attempt to investigate the affect [sic] of the quarry.
It's [sic] conclusion, that the levee had not worsened the floods, was based on the untested evidence of a single expert witness: Dr Phillip Jordan, a senior hydrologist for Sinclair Knight Merz.
Jordan's findings relied almost entirely on a computer simulation exercise conducted from his offices in Victoria. He did not visit ... until April 5, almost 4 months after the floods, and a week before delivering his interim report to the Commission.
By that time much of the debris had been removed. Wagners had already begun repairing the gap in the wall and other alterations had been made to the landscape, complicating the site inspection.
The only reasonable conclusion to make is that the flood started at the quarry with the collapse of the wall.
Justice demands a fresh inquiry and a re-examination of the hydrology report by Sinclair Knight Mertz."
[179] Third, Mr Cater appeared as a guest on Mr Jones' program on 15 October 2014.
[180] Fourth, Mr Cater wrote a further letter to Mr Jones dated 15 October 2014 which included the following statements:[121]
"Many thanks for giving me air time today. I agree with you that there must be a fresh inquiry into the events surrounding the January 10, 2011 floods in the Lockyer Valley. The evidence that the wall of water form[ed] behind the quarry wall is overwhelming, as the attached picture shows. ...
You can also see the huge reservoir of water banked up over farmland to the right of the picture - towards the west - because it had been held back by the levee. ...
To say that the quarry wall did not adversely affect the flow of water towards Grantham is to deny the evidence of this footage.
[181] Fifth, Mr Cater appeared as a guest on Mr Jones' program on 29 October 2014 (the Third Matter) which included the following exchange:
"NICK CATER: Yeah, that's right. Because, you know, the story you heard from Marty Warburton, you will hear scores of times over. People that were caught in that sudden rush of water - inland tsunami, some people called it. And those statistics you drew attention to just now are very, very interesting because it does show that this was an extraordinary flood. There are lots of floods in Australia, sadly people get caught in them, sometimes people drown. But it is highly unusual to see houses, numbers of houses, floating down the street. In one case a house exploding because - what happened was it got so filled with water that the poorly constructed double brick veneer couldn't hold that water and the town house basically exploded. Eye witnesses tell of this but, you know, you can look at the pictures afterwards, you can see what happened. Three people died in that house. So this was an extraordinary event and you'd think that a Flood Commission would go to enormous lengths to find out what happened. But what they did was commission one single hydrology report; that was all. It was by Sinclair Knight Merz, the scientist was Dr Phillip Jordan, he produced his interim report without even visiting Grantham.
ALAN JONES: I'm sorry to interrupt you, but Sinclair Knight Merz has got their hands over everything in Queensland, haven't they? Aren't they the people who were heavily involved in working with Wagners on the Wellcamp Industrial Estate - they're the same people.
NICK CATER: And I think, Alan, we've gotta be very careful with this story, how far we go. There may be cover ups, things that have undoubtedly been covered up - I don't know by who or why."
[182] The plaintiffs submit that these communications demonstrate that Mr Cater was a longtime protagonist of the thesis that the collapse of the quarry wall, which Mr Cater told Mr Jones was a "crudely constructed levee" at "Wagner's Quarry",[122] was the cause of the fatal Grantham flood. The plaintiffs further submit that these communications demonstrate that Mr Cater was not only an informant to Mr Jones, but was actively encouraging Mr Jones to take up his thesis and broadcast it. As such, Mr Cater conduced to Mr Jones' broadcast propagating his thesis and positively encouraged Mr Jones to say these things.[123]
[183] The plaintiffs assert that it is against this background that the exchanges between Mr Jones and Mr Cater in the Eleventh Matter occur. The exchanges that the plaintiffs rely on are Mr Jones' opening statement, which effectively repeated what he said in the tenth broadcast, and Mr Cater's statement set out in [161] above. In particular, the plaintiffs rely on the following words spoken by Mr Cater:
"That had to be started by something and all the evidence points as you just said to the wall at the quarry that collapsed. It was like a break in a dam. The water gushes out with huge velocity and huge force and that was in the end what caused the damage, what kills people.
It's very hard to escape the conclusion that if it was not for the quarry wall twelve people would not have lost their lives that day and yet it's taken so long as you know, Alan, more than four years now of battling to try and get close to the truth, to try and establish the truth. I believe that we are close now and that the [DHI] report backs us all the way on this. It's still a long way to go." (plaintiffs' emphasis)
[184] From this passage the plaintiffs make the following submissions:
- (a) Mr Cater is explicitly agreeing with Mr Jones' previous remarks, in particular about the quarry wall, viz, that DHI had found that the collapse of the quarry wall meant that the flood occurred more quickly and there was less time for evacuation, and also the remarks concerning who owned the quarry, the Toowoomba based Wagner brothers;
- (b) Mr Cater does not in any way attempt to qualify his agreement with what Mr Jones has said by distinguishing between Mr Jones' prior accusations. The ordinary reasonable listener would engage in a degree of loose thinking in relation to the broadcast, and jump to conclusions. With no time to think or reflect on a transient broadcast, he or she would think that Mr Cater was endorsing and agreeing with all that Mr Jones had said;
- (c) Mr Cater is therefore an accessory to the publication; his words "all the evidence points as you just said to the wall at the quarry that collapsed" and previous communications with Mr Jones were the means by which Mr Cater conduced to the broadcast. In doing so, Mr Cater conveyed imputation (c) or an imputation not different in substance.
[185] I have set out the plaintiffs' submissions in some detail because I have difficulty in accepting them.
[186] First, Mr Cater is sought to be made liable on a case that has not been pleaded. The plaintiffs' pleaded case is that in its natural and ordinary meaning the Eleventh Matter conveyed imputation (c). The plaintiffs' case that Mr Cater is "an accessory to the publication"[124] is not pleaded. Mr Cater does not take this pleading point. It remains the case, however, that the plaintiffs seek to establish Mr Cater's liability in respect to imputation (c) being conveyed by the Eleventh Matter not merely by reference to the words spoken by Mr Cater, but on the additional basis that he conduced to the publication which conveyed imputation (c).
[187] Second, as I have found, imputation (c) is conveyed by the words spoken by Mr Jones in his introductory remarks. These remarks are substantially the same as those made by Mr Jones in the tenth broadcast. The pleaded imputation conveyed is not simply that the collapse of the wall at the quarry caused the 2011 Grantham flood, but that each of the plaintiffs "caused the deaths of 12 people by constructing a massive wall at his quarry that collapsed under the weight of water". The finding that imputation (c) was conveyed by the words spoken by Mr Jones rests largely on his specific identification of the Wagners (in derogatory terms) as being the persons responsible for constructing a "massive wall". The relevant references in this respect are found at [166] above. This is to be contrasted with the words spoken by Mr Cater. Mr Cater at no stage mentions the plaintiffs, nor does he seek to implicate them in the construction of the wall at the quarry that collapsed.
"Alan, we've gotta be very careful with this story, how far we go. There may be cover ups, things that have undoubtedly been covered up - I don't know by who or why. My real concern is just to say let's start by saying what happened on the day and then we'll see what flows from that."[128]
[191] This statement in the third broadcast is generally consistent with Mr Cater's statements in the eleventh broadcast:
- "It's still a long way to go."
- "There needs to be a fresh inquiry and I'm very pleased that a number of people are now looking at this very seriously and I hope that the Premier takes this very seriously and realises that this has to be investigated."
- "What we need, Alan, is a very specific inquiry. There needs to be an inquiry that looks at the events over perhaps ninety minutes in a very short space of that Lockyer Creek between Helidon and Grantham."
[192] I find that Mr Cater:
- (a) neither expressly nor impliedly agreed with or adopted Mr Jones' words which conveyed imputation (c);
- (b) did not conduce to the publication of the words spoken by Mr Jones which conveyed imputation (c).
[193] As Mr Cater is only sought to be made liable in relation to imputation (c) in respect of the Eleventh Matter complained of, each plaintiff's claim against him should be dismissed.[129]
[194] The Twelfth Matter was broadcast on radio 2GB on 27 April 2015 commencing at approximately 7.49 am. Attachment 12 to these Reasons is a transcript of the words spoken by Mr Jones.
[195] 2GB and Mr Jones concede that the Twelfth Matter is of and concerning each of the plaintiffs.
[196] It is in issue whether the imputations were conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) caused the deaths of 12 people by constructing an embankment at his quarry which collapsed under a weight of water, causing the 2011 Grantham flood; and
- (b) in the alternative to (a), caused the deaths of 12 people when an embankment constructed at his quarry collapsed under a weight of water, causing the 2011 Grantham flood.[130]
[197] The Twelfth Matter complained of is a segment from an interview Mr Jones conducted with the then newly elected Queensland Premier, Annastacia Palaszczuk. The topic of the interview is whether Ms Palaszczuk would be calling a fresh inquiry in relation to Grantham. In the course of the interview, Mr Jones says the following words:
- "In Grantham in your state in 2011, 12 people died when the weight of water, allegedly from a quarry owner owned by the Wagners, became a bathtub. And the weight of the water collapsed the embankment, 12 people had no hope. Will you be calling a long overdue inquiry so that these poor people who are the survivors of this massive tragedy at Grantham can have their say?"
- "And Marty Warburton, whom you know, ... he told me and I quote what happened on that day was not a normal flood, and the violence and the destruction that the water caused was the result of a man-made construction in a designated water course."
- "Marty Warburton raised all this with the flood inquiry, quote: it never got a mention. He said to me the bullying and intimidation I witnessed and experienced towards those who stood up and asked questions about the event or made comments during the recovery that authorities didn't agree with, the bullying and the intimidation was disgusting."
[198] Unlike earlier broadcasts in relation to Grantham, Mr Jones, in interviewing the Premier, uses the word "allegedly" when referring to the role of the quarry. The plaintiffs submit that Mr Jones' use of the word "allegedly" constitutes a purported disclaimer which is both "contrived and insincere". The plaintiffs submit: "It is well accepted that a person cannot escape liability by merely putting the defamatory words after the prefix 'it is alleged that' and then asserting that allegation is true." In Mason J in referring to "rumour" cases stated: "The essence of those cases is that the defendant gives his imprimatur to the rumour; by passing it on he gives it credence, implying that it is well founded or that it may be so." All that is being alleged in this broadcast, however, is where the "weight of water" allegedly came from. In the first quote, Mr Jones does not make any reference to a wall at the quarry, but rather to the collapse of "the embankment". It is only when he quotes Mr Warburton that reference is made to "a man-made construction in a designated water course". The defendants submit that neither meaning is capable of arising: "There is a reference, that is not contradicted elsewhere, that the water allegedly came from the quarry and the subject of it otherwise is concerned with the need for an inquiry. An allegation of causation is not made out on this broadcast." I accept this submission. Nowhere in the broadcast, unlike other broadcasts, does Mr Jones identify who built the man-made construction. He refers to the quarry as being owned by the Wagners but makes none of the accusations he made in the Tenth and Eleventh Matters. As the general thrust of the broadcast is an interview with the Premier seeking the calling of a fresh inquiry, I do not accept that the ordinary reasonable listener would have inferred that it was the Wagners who were responsible either for the collapse of the embankment, or for the man-made construction in a designated watercourse. Neither imputation would, in my view, have been conveyed to the ordinary reasonable listener.
[199] The Fourteenth Matter was broadcast on radio 2GB on 6 May 2015 commencing at 6.45 am and continuing at 6.49 am. Attachment 14 to these Reasons is a transcript of the words spoken by Mr Jones.
[200] In this broadcast Mr Jones informs his listeners that the Queensland Premier, Annastacia Palaszczuk, has announced a Commission of Inquiry into the flooding of the Lockyer Creek between Helidon and Grantham. Mr Jones refers to this flooding as being "infamously known as the Grantham Affair". He identifies the chair of the new inquiry as the "distinguished QC Walter Sofronoff".
[201] Mr Jones contrasts Ms Palaszczuk's decision with the previous failures of Mr Newman, Mr Springborg, "and all his mates who would do nothing about the Grantham Floods in the time they were in government". Mr Jones then asks rhetorically, "Why? Who are they covering up for?"
[202] Mr Jones then makes reference to the hydraulic engineering report commissioned by The Australian. He refers to The Australian newspaper as taking "a long time to get to the starting gate, having argued all along that things I was saying were incorrect but then they commissioned their own hydraulic engineering firm, DHI, who argued the original findings of this hydrologist Phillip Jordan were seriously flawed. Twelve people lost their lives, their bodies have never been found. They have no closure." Mr Jones is mistaken in his reference to the 12 victims' bodies having never been found.
[203] He states that Ms Palaszczuk "already has them running for cover and I have no doubt for the shredding machines. I'll be naming the shredders, but not today. They can wait." Mr Jones then informs his listeners of the terms of reference of the proposed inquiry, including: "Two whether the existence or breach of the Grantham quarry caused or contributed to the flooding and that's the Wagner quarry." Mr Jones emphasises the words "and that's the Wagner quarry".
[204] Mr Jones then interviews Mr Warburton, putting to Mr Warburton a number of his own statements, which include:
- "... you told me quote of Grantham I'll quote you - it never got a mention, the bullying and intimidation I experienced towards those who stood up and asked questions about the event or made comments during the recovery, that authorities didn't agree with, the bullying and the intimidation was disgusting".
(aa) in the alternative to (a), caused the deaths of 12 people when a dam wall constructed in a designated water course at his quarry collapsed, causing the 2011 Grantham flood;
(b) in concert with others, conspired in a disgraceful cover-up of his culpability for the deaths of 12 people in the 2011 Grantham flood; and
(c) bullied and intimidated persons who tried to expose the fact that the collapse of a dam wall at his quarry was the cause of the deaths of 12 people in the Grantham flood disaster.[137]
[208] The plaintiffs do not rely on any extrinsic facts such as previous broadcasts to establish that the imputations were conveyed. The defendants emphasise the importance of the pleaded imputations only being conveyed by their natural and ordinary meaning:
"One critical matter that is worth recalling here, as in the consideration of all the broadcasts, is that they are to be (except in the limited examples where some extrinsic knowledge is pleaded) considered as standalone broadcasts. Whatever might be thought about what the second defendant had been saying in previous broadcasts, is immaterial. Each of the meanings relied upon is said to be a natural and ordinary meaning arising from the matter complained of."[138]
[209] As to imputation (a) and its alternative imputation (aa), the defendants submit that there is no suggestion of culpability in this broadcast. The broadcast specifically refers to the establishment of a Commission of Inquiry expressly tasked with looking into the impact of the man-made features of the quarry, "which could have altered or contributed to the flooding". The broadcast, in my view, goes well beyond informing the listener of the Inquiry's terms of reference. Mr Jones contextualises the establishment of the Inquiry by referring to the previous government's failure to do anything about the Grantham floods. It is in this context that Mr Jones rhetorically asked his listener, "Why? Who are they covering up for?"
[210] Mr Jones makes reference to 12 people having lost their lives and their bodies having never been found. Immediately thereafter he refers to Annastacia Palaszczuk (inferentially for having established the new Inquiry) as having "them running for cover and I have no doubt for the shredding machines. I'll be naming the shredders, but not today." Mr Jones refers to Ms Palaszczuk as having "sought to bring some justice to these people". Mr Jones, by his references to "Wagner quarry", "Wagner's dam", "man-made", and "manmade construction in a designated water course", identifies the culpability of the plaintiffs. This is because the ordinary reasonable listener, as submitted by the plaintiffs, is likely to have understood Mr Jones to be saying several things:
- (a) that there has been a cover-up in relation to the Grantham floods;
- (b) that this cover-up, and those who are protected by it, will soon be discovered by the new Inquiry, such that unnamed people are "running for cover" and "the shredding machines"; and
- (c) that the new Inquiry will have a limited focus but includes whether the existence or breach of the Wagner quarry "caused or contributed" to the flooding and how "eyewitness accounts were dealt with".[139]
[211] By Mr Jones' leading questions to Mr Warburton, the listener is left with the impression that there is plenty of evidence - including hundreds of photographs, video evidence, accounts given to the coroner, and reports - that support Mr Warburton's belief that the flood was the result "of a man-made construction in a designated water course".
[219] The Fifteenth Matter was broadcast on radio 2GB on 15 May 2015 at approximately 7.43 am. Attachment 15 to these Reasons is a transcript of the words spoken by Mr Jones.
[220] As the broadcast is reasonably brief I set it out in full:
"And just one interesting point. My listeners are full of information. If you're standing up, sit down.
As you know, there's an inquiry into the Grantham floods and it's progressing outstandingly. This man, Walter Sofronoff.
Last week was Beef Week at Rockhampton. Barnaby Joyce was there, Warren Truss, the Deputy Prime Minister. They were talking about the absence of a really fair dinkum agricultural policy.
I am told by someone who was there that there was discussion about a free trade deal with China. And I'm told that up stepped one Mr Wagner, walked up to Barnaby Joyce and Warren Truss - two federal ministers. And I'm told words to this effect were said: be careful, the judge they've appointed in this has got it in for us.
This is about Grantham. Walter Sofronoff. And then the conversation went something like this: we need to cover each other's backs in this, you look after us and we'll look after you.
Do you think they're not running scared about the Grantham inquiry? You bet they are. That was Beef Week in Rockhampton. You'd have think it [indistinct] more than Beef Week with some of that lot."
[221] It is in issue whether the Fifteenth Matter published by 2GB and Mr Jones is of and concerning each of the plaintiffs. The Fifteenth Matter makes specific reference to Mr Wagner: "up stepped one Mr Wagner". I accept that this reference identifies the plaintiffs by name. Although the reference is to a single "Mr Wagner", a listener could draw the inference that Mr Jones was referring to all (or any one of) the plaintiffs.[142]
[222] It is in issue whether the imputation was conveyed. The pleaded imputation is that each of the first, second, third and fourth plaintiffs conspired with the Deputy Prime Minister, Warren Truss, and a prominent member of the government, Barnaby Joyce, to cover up his culpability for the deaths of people in the Grantham flood disaster.[143] The plaintiffs plead that this imputation is conveyed in its natural and ordinary meaning or, alternatively, by reason of extrinsic facts, namely that 12 people were killed in the Grantham flood disaster. The plaintiffs allege this fact was notorious.
[223] The defendants submit that the broadcast is silent as to whether the plaintiffs were culpable for the deaths of people in the Grantham Flood event.[144] I do not accept this submission. The broadcast is delivered by Mr Jones in a sensationalist tone. Mr Jones commences by stating that his listeners are full of information. He then invites the listeners to sit down if they are standing up. An ordinary reasonable listener would immediately infer that the information that is to be imparted by Mr Jones is both important and shocking. After recounting some of the conversation between Mr Wagner, Warren Truss and Barnaby Joyce, Mr Jones states, "This is about Grantham. Walter Sofronoff". After recounting the full conversation Mr Jones then rhetorically asks his listeners, "Do you think they're not running scared about the Grantham inquiry? You bet they are." An inference that an ordinary reasonable listener would draw is that Mr Wagner has plenty to fear about the Grantham Floods Inquiry concerning, as it does, the deaths of 12 people. As correctly submitted by the plaintiffs, Mr Jones' language is loose and insinuating and invites the listener to speculate. The impression which would be gained by the ordinary reasonable listener is that the plaintiffs are the persons who are running scared and they, together with the two named politicians, are planning to prevent something from becoming known.
[227] The Sixteenth Matter was broadcast on radio 2GB on 22 May 2015 commencing at approximately 7.42 am. Attachment 16 to these Reasons is a transcript of the words spoken by Mr Jones.
[228] Only the second plaintiff, John Wagner, complains about this broadcast. Mr Jones and 2GB admit that the Sixteenth Matter is of and concerning the second plaintiff.
[229] It is in issue whether the following pleaded imputation is conveyed:
"In its natural and ordinary meaning, and alternatively by reason of the matter particularised below, the sixteenth matter meant and was understood to mean that the second plaintiff conspired with the Deputy Prime Minister of Australia, Warren Truss, and a prominent member of the government, Barnaby Joyce, to cover up his culpability for the deaths of people in the Grantham flood disaster.
12 people were killed in the Grantham flood disaster; this fact was notorious."[147]
[230] The relevant part of this broadcast is similar in content and tone to the Fifteenth Matter. The primary difference is that Mr Jones makes reference only to the second plaintiff, John Wagner. For the reasons given in respect of the Fifteenth Matter, I determine that the imputation was conveyed.
[231] 2GB and Mr Jones admit that, if conveyed, the imputation is defamatory.
[232] The defendants do not seek to defend this defamatory imputation. As I have already observed, this imputation is very serious.
[233] The Seventeenth Matter was broadcast on radio 2GB on 25 May 2015 commencing at approximately 7.40 am. Attachment 17 to these Reasons is a transcript of the words spoken by Mr Jones.
[234] 2GB and Mr Jones admit that the Seventeenth Matter is of and concerning each of the plaintiffs.
[235] It is in issue whether the imputations were conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
"(a) in concert with the Bligh and Newman Governments and police, criminally conspired over a period of four years in a disgraceful and massive cover-up of the cause of the horrific and terrifying Grantham flood; and
(b) terrorised and vilified two ordinary people, Heather Brown and David Pascoe, forcing them to change address and live in fear, because they threatened to expose the truth about his involvement in the horrific flooding of the town of Grantham and the deaths of a number of people, including a baby.
12 people were killed in the Grantham flood disaster; this fact was notorious."[148]
[236] In determining whether the pleaded imputations are conveyed, the importance of listening to these broadcasts and how they are delivered by Mr Jones cannot be over-emphasised. In this broadcast in particular, Mr Jones' delivery is compelling. He speaks with great confidence and conviction. The listener is left with the overwhelming impression that the true cause of the Grantham Flood event which resulted in 12 deaths has been the subject of a massive cover-up.
[237] Mr Jones commences the broadcast by referring to a 60 Minutes program on the Grantham Flood event. He recounts some terrible stories arising from the flood, including one of a mother who lost her baby, never to be found. Mr Jones then states:
"That all began remember on this program, and no-one wanted to believe what we were saying. We started the verbal proof that this was a massive cover up and the Bligh Government was involved and subsequently the Newman Government. Anna Bligh must be made to appear at this inquiry, she has to be called. She has to be made to answer why she allowed herself to be manipulated by police and others to a cover up. Who for? Wagner and co?"
[238] Later in the broadcast Mr Jones again refers to Grantham as a cover-up and makes the following statements:
- "This was the same political climate that saw Grantham covered up by the Bligh Government and her mates using the might of the police and the Newman Government in spite of promises did nothing about it. And that very same special squad that was brought in to Grantham by midnight the night of the disaster, they locked the town down and did exactly what they were told for the next two weeks. Or make it for the next four years."
- "After 60 Minutes last night there'd be plenty of people up there with diarrhoea and vomiting. They know the truth is closing in on them because many people know the truth."
- "Annastacia Palaszczuk said on 60 Minutes all the evidence must be preserved. So any attempt to destroy the quarry wall will be a criminal offence."
- "I spoke to one person yesterday who's made a submission. They've done homework about mining, about the Toowoomba Council, about Wagner's, about the dirty deals and about the police. You can put Grantham in the blender and swirl it around and around and the conclusion is the same, Anna Bligh and the police covered up the Grantham disaster. Why? Was this to protect Wagner and others? They'd already committed the crime much earlier with the Santos and British Gas Environmental Impact Statement."
- "But now the truth is closing in on a lot of people. All the appropriate information is being given to Mr Sofronoff and well may some people be very worried indeed because a crime is a crime."
- "I'm going to give a rap to Heather Brown and her husband Dr David Pascoe. Nobody has taken the massive hit to their lives that these two ordinary people have taken in pursuing the truth. They've been burgled - you've heard me talk to Heather Brown on this program - three times they were burgled, terrorised, vilified, helicopters flying over their home, driven out of their home for thirteen months, living at three addresses because security was warning them the mob were coming back to get them."
- "Who ran all this operation? Who was responsible for this terrorising of these two people? This was never about mining, this was about how much Heather Pascoe knew about Grantham."
"The listeners are told that Ms Pascoe was being pursued because of 'how much she knew about Grantham' not ..., as the meaning requires to be found, 'because they threatened to expose the truth about [the plaintiffs'] involvement in the horrific flooding of the town of Grantham and the deaths of a number of people, including a baby'. There is no suggestion that Ms Pascoe was threatening to expose anyone, let alone the plaintiffs, let alone that she had information that she was prepared to release, that would expose the plaintiffs' involvement in the horrific flood. There would have been many easier ways to plead this meaning, but the plaintiffs have chose not to, and must now incur the consequence that a poorly pleaded meaning will not be found to arise."[151]
[245] Mr Jones, however, in the broadcast, identifies that Heather Brown and Dr Pascoe have taken "the massive hit to their lives" because they were "pursuing the truth". As a matter of inference, the ordinary reasonable listener would infer from the broadcast that the truth they were pursuing was the truth about Grantham. This is in the context of Mr Jones having alleged that the true cause of the deaths at Grantham has been the subject of a massive cover-up benefitting the Wagners.
[246] In this context, when Mr Jones asked the rhetorical questions, "Who ran all this operation? Who was responsible for this terrorising of these two people?", the ordinary reasonable listener would readily have drawn the inference that it was the Wagners.
[247] Imputation (b) was conveyed.
[248] I determine that the Seventeenth Matter conveyed that each of the first, second, third and fourth plaintiffs:
- (a) in concert with the Bligh and Newman Governments and police, criminally conspired over a period of four years in a disgraceful and massive cover-up of the cause of the horrific and terrifying Grantham flood; and
- (b) terrorised and vilified two ordinary people, Heather Brown and David Pascoe, forcing them to change address and live in fear, because they threatened to expose the truth about his involvement in the horrific flooding of the town of Grantham and the deaths of a number of people, including a baby.
[249] 2GB and Mr Jones admit that, if conveyed, the imputations are defamatory of each of the plaintiffs.
[250] The defendants do not seek to defend these defamatory imputations. I consider these imputations to be very serious.
[251] The Eighteenth Matter was broadcast on radio 2GB on 26 May 2015 commencing at approximately 7.42 am. Attachment 18 to these Reasons is a transcript of the words spoken by Mr Jones.
[252] 2GB and Mr Jones admit that the Eighteenth Matter is of and concerning each of the plaintiffs. The plaintiffs plead that the Eighteenth Matter conveyed five imputations:
"63. In its natural and ordinary meaning, the eighteenth matter meant and was understood to mean (as separate imputations arising in respect of each plaintiff) that each of the first, second, third and fourth plaintiffs:
(a) is a person who knows only two things: self-interest and bullying;
(b) for his own selfish and greedy purposes, stole airspace above the Oakley [sic] Army Base, which will destroy the Oakley [sic] Army Base, which trains helicopter pilots, and harm the national defence interest; and
(c) is a monumental hypocrite, in that he went to Canberra to talk to his mate Ian Macfarlane to stop the destruction of the Borneo Barracks on the ground that they are important for defence, when he is responsible for destroying the Oakey defence base for his own selfish, greedy purposes.
64. Further or alternatively, by reason of the matters particularised below, the eighteenth matter meant and was understood to mean that each of the first, second, third and fourth plaintiffs:
(a) caused the deaths of a number of people in the Grantham flood disaster when a dam wall at his quarry burst, flooding the town of Grantham; and
(b) was frightened that his causing the deaths of 12 people in the Grantham flood disaster would be exposed in the forthcoming inquiry, and in consequence was attempting to cover up the fact.
(i) 12 people were killed in the Grantham flood disaster; this fact was notorious;
(ii) the second defendant had made frequent and repeated allegations that the cause of the Grantham flood disaster was the collapse of the wall at the plaintiffs' quarry, and that the plaintiffs had attempted to conceal the fact; and
(iii) the second defendant made the allegation to the effect of that described in particular (ii):
(A) in the first, second, third, seventh, eighth, ninth, tenth, eleventh, fourteenth, fifteenth, sixteen and seventeen matters;
(B) on the Jones Program on 13 October 2014 (commencing at about 7.16 am); and
(C) on the 'Alan Jones Comments of the Day Program' on radio station 4GR on 16 October 2014 (commencing at 1.51 pm); and
(iv) a further inquiry into the Grantham flood disaster had been announced by the Queensland Government; this fact was notorious."[152]
[253] Mr Jones and 2GB admit that the imputation that each of the plaintiffs is "a person who knows only two things: self-interest and bullying" was conveyed. It is in issue, however, whether the other four imputations were conveyed.
[254] As to imputation 63(b), the defendants submit that it does not arise because there is not a connection between the plaintiffs and the allegation of the loss of airspace.[153] While Mr Jones does not suggest that the plaintiffs were involved in the fast-tracking of the Wagner airport, he does state that the politicians involved knew full well that stealing 40 per cent of airspace from the army would begin the process of eventually shutting down the army base at Oakey, which is there for defence purposes. What Mr Jones is suggesting to the listener is that the Wagners' airport was approved, and that approval involved the stealing of airspace from the Oakey air base which would eventually lead to its closure. Having referred to "the Wagner airport" and "Wagner" Mr Jones then states:
- "And now they're saying, oh, we've got to go to Canberra and talk to Macfarlane, our mate, to stop the destruction of the Borneo Barracks, they're important for defence. After we've actually destroyed the Oakey defence base itself for our own selfish, greedy purposes."
- "These people, they're hypocrites of the year. Antonio, Macfarlane, Wagner - airports, army bases, Grantham."
- "These are the Darling Downs leaders now on a little comedy routine to convince the poor old Darling Downs punter that they really care."
- "I've warned about these people now for years. The tragedy is by the time we wake up, it may well be too late. They only know one thing and that is self-interest. No, sorry, two things: self-interest and bullying."
[255] An ordinary reasonable listener would infer that as the airport was the "Wagner airport", the Wagners were involved in the stealing of airspace for their own selfish and greedy purposes. This inference arises as it is the Wagners who own the airport.
[256] As to imputation 63(c), the defendants submit that this imputation does not arise because there is no allegation the plaintiffs went to Canberra to see Mr Macfarlane.[154] I do not accept this submission. Mr Jones lumps the Wagners in with Antonio and Macfarlane, airports, air bases, and Grantham, for the purposes of identifying all of them as "hypocrites of the year". Having named Wagner in this group, Mr Jones then suggests that they are on "a little comedy routine to convince the poor old Darling Downs punter that they really care". An ordinary reasonable listener would infer that Mr Wagner was one of those persons going to Canberra to save the Borneo Barracks Defence Base at Cabarlah.
"They're running for cover around Toowoomba and Grantham at 100 miles an hour over this Grantham inquiry. And after the 60 Minutes show and the things we've been saying for years and well they may be. There's one thing though that they don't lack and that's gall - they've got as much hide as Jessie the elephant."
[258] In my view these words, even with the extrinsic facts, do not convey the pleaded imputations. There is no mention of the plaintiffs in relation to Grantham and, save for the reference to the 60 Minutes program, no reference to Grantham either. The words spoken, even taken with the extrinsic facts, are too general to convey the pleaded imputations.
[259] 2GB and Mr Jones admit that, if conveyed, imputations 63(b) and 63(c) are defamatory of each of the plaintiffs. The defendants deny that imputation 63(a) is defamatory because to "know" is different to "being" or to "practising". Simply knowing that you are selfinterested and bullying is not of itself defamatory. The defendants submit that the plaintiffs, having decided here to plead the words used by Mr Jones, have elected to express what they say is the final distillation of the sting in what was said.[155] I do not accept this submission. The words used by Mr Jones that the plaintiffs know only two things, self-interest and bullying, does not communicate to the ordinary reasonable listener what the plaintiffs knew. It is a pejorative statement which the listener would understand as reflecting poorly on each of the plaintiffs. It is a statement as to how the plaintiffs conduct themselves, rather than what they know. Imputation 63(a) is defamatory.
[260] I determine that the Eighteenth Matter was of and concerning each of the plaintiffs. It conveyed imputation 63(a), (b) and (c) in respect of each of the plaintiffs. The imputations were defamatory of each of the plaintiffs.
[261] The Nineteenth Matter consists of words spoken by Mr Jones in a television program cohosted by him on Sky News. The program went to air on 2 June 2015, commencing at approximately 8.50 pm. Attachment 19 to these Reasons is a transcript of the words spoken by Mr Jones. The relevant words spoken by Mr Jones are as follows:
"But the big thing that she's done to date is the whole question of Grantham; the inquiry into the floods, and the feeling by many that the quarry dam wall broke. Well quite extraordinarily I had a call this week from someone who was on the Lockyer Council back in 1989 - I've got to be careful in terms of what I say - but he was telling me that if his memory served him correctly Wagner's were never meant to have any overburden left on the site, let alone use it as a wall. In other words what you didn't want had to be carted away. And this is of course the wall that broke, and the tsunami that followed. And my caller said that either of two things had occurred; that Wagners deliberately ignored that ruling that they were never meant to leave any overburden on the site, or they had it specially altered or changed with some of their mates in Government."
[262] 2GB and Mr Jones admit that the broadcast is of and concerning each of the plaintiffs. Whether the imputation was conveyed is in issue. The pleaded imputation is that each of the first, second, third and fourth plaintiffs built a wall at his quarry by illegally leaving overburden on the site, which broke, causing a tsunami that caused the death of people in the Grantham Flood event. The plaintiffs plead that this imputation arises from the natural and ordinary meaning of the words used by Mr Jones.[156] The plaintiffs submit that while Mr Jones does not make direct reference to the deaths of people, he does refer to "the whole question of Grantham". That the Grantham Flood event resulted in loss of human life is, according to the plaintiffs, a notorious fact and one which the ordinary reasonable listener is taken to have known.[157] The ordinary reasonable listener would have understood Mr Jones to be saying as a matter of fact that Wagners had "used" overburden as a wall, and that this wall broke, resulting in a tsunami. Having identified the Wagners as building the wall, Mr Jones then proceeds to give two explanations as to how overburden was used for this purpose, either: (a) the Wagners deliberately ignored the ruling that they were not meant to leave any overburden on the site; or (b) they had it specially altered or changed with some of their mates in government. Either explanation conveys to the ordinary reasonable listener that the Wagners had done something wrong.[158] The imputation was conveyed.
[263] 2GB and Mr Jones admit that, if conveyed, the imputation is defamatory of each of the plaintiffs.
[264] I determine that the Nineteenth Matter was of and concerning each of the plaintiffs. The Nineteenth Matter conveyed the imputation that each of the first, second, third and fourth plaintiffs built a wall at his quarry by illegally leaving overburden on the site, which broke, causing a tsunami that caused the death of people in the Grantham flood disaster. The imputation is defamatory of each of the plaintiffs.
[265] The Twentieth Matter was broadcast on radio 2GB on 4 June 2015 commencing at approximately 8.51 am. Attachment 20 to these Reasons is a transcript of the words spoken by Mr Jones. This was a brief broadcast in which the following words were spoken:
"... I made this point on television the other night but with this Grantham inquiry in Queensland being all the talk in that part of the world.
I was talking to someone who was on the Lockyer Council back in 1989. And he told me that if memory served him correctly, Wagners were never meant to have any over-burden left on the site - let alone used as a wall. This, of course, is the wall that the locals argued broke and the tsunami followed and people were dead.
And my informant told me that either of two things have occurred: Wagners deliberately ignored the ruling that they were never meant to leave any overburden on the site, or some of the mates changed the rules. Either way, it starts to explain why people are running for cover. And why in fact there may have been a cover up."
[266] 2GB and Mr Jones admit that the broadcast was of and concerning the plaintiffs.
[267] It is in issue whether the imputations were conveyed. The pleaded imputations are that each of the plaintiffs:
- (a) was running for cover because his liability for the deaths of people in the Grantham flood disaster, after the wall at his quarry broke causing a tsunami, was likely to be exposed by the Grantham Floods Inquiry; and
- (b) was trying to cover up the fact that he had either built an illegal wall at his quarry, which burst and caused a tsunami which killed people in the Grantham flood disaster, or had his mates change the rules, which allowed the wall to be built.[159]
[268] The defendants submit that imputation (a) does not arise because there is no sufficient connection between the allegations as to the construction of the wall, the breaking of the wall, and the deaths of people in Grantham: "The relevant connection so as to cause a listener to understand that there was a reference to actual liability for the deaths, is just not there."[160] Similarly, the defendants submit that imputation (b) does not arise because the allegation as to liability for deaths is made by locals, and not adopted by Mr Jones. The words used by Mr Jones in this broadcast are similar to those used in the Nineteenth Matter. There is, in my view, sufficient connection between the allegations as to the construction of the wall, the breaking of the wall, the deaths of people in Grantham and the plaintiffs' culpability. While Mr Jones does not identify the people who are running for cover, or why there has in fact been a cover-up, the impression given to the ordinary reasonable listener is that it is the Wagners. The further inference to be drawn is that the Wagners are running for cover because of their culpability in building a wall which burst, resulting in a tsunami and people's deaths. Imputation (a) is conveyed.
[269] As to imputation (b), although Mr Jones suggests there "may have been a cover up", such a suggestion does invite speculation which extends beyond the mere possibility of a cover-up. As submitted by the plaintiffs, it suggests that a cover-up has in fact occurred.[161] The cover-up relates to the Wagners because they are the persons subject to the allegation by the locals that it was their wall which broke, causing the tsunami resulting in deaths. Imputation (b) is conveyed.
[273] The Twenty-First Matter was broadcast on radio 2GB on 16 June 2015 commencing at about 8.16 am. Attachment 21 to these Reasons is a transcript of the words spoken by Mr Jones.
[274] 2GB and Mr Jones admit that the Twenty-First Matter is only of and concerning the second plaintiff, John Wagner, who is specifically named by Mr Jones in this broadcast. John Wagner is described as "of Wagner infamy in Toowoomba". This would be understood by the ordinary reasonable listener to be a reference to the Wagner family. Mr Jones then makes the following statement:
"So how many sweetheart deals are this mob worried about that will be unearthed by the Grantham Inquiry? Mr Sofronoff will be examining everything. Might it extend to the Wagner Airport, and how they were given the airspace over Oakey for nothing - national air space?"
[275] I accept the plaintiffs' submissions that these words would be understood to be a reference to the plaintiffs.[162] Further, after using the word "mob" Mr Jones refers to "how they were given the airspace over Oakey for nothing". By the use of the word "they", the ordinary reasonable listener would understand that Mr Jones was referring to the Wagners in general, rather than limiting his comments to John Wagner.
[276] I find that the Twenty-First Matter is of and concerning each of the plaintiffs.
[277] Whether the Twenty-First Matter conveyed the imputations is in issue. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) conspired with Barnaby Joyce and Warren Truss, the National Party leader, to cover up his culpability for the deaths of people in the Grantham flood disaster;
- (b) conspired with Warren Truss, the National Party leader, Ian Macfarlane, the Energy Minister, and a prominent member of the government, Barnaby Joyce, to cooperate in protecting each other from the exposure of their misappropriations of federal money and illegal deals; and
- (c) illegally obtained a national asset, the airspace over the Oakey military base, for use at his private airport.
[278] The plaintiffs rely on the following extrinsic facts:
- (i) 12 people were killed in the Grantham flood disaster; and
- (ii) a further inquiry into the Grantham flood disaster had been announced by the Queensland Government.[163]
[279] As to imputation (a), this is conveyed by the first part of the broadcast, which effectively repeats the words of the Fifteenth and Sixteenth Matters complained of. For the same reasons given in relation to those matters, imputation (a) is conveyed.
[280] As to imputation (b), after reminding his listeners of the Beef Week conversation, Mr Jones poses the question, "... how many sweetheart deals are this mob worried about that will be unearthed by the Grantham Inquiry?" While he does not identify who "this mob" is or what the "sweetheart deals" are, the impression created is that "this mob" includes the infamous Wagner family of Toowoomba. I accept the plaintiffs' submission that a "sweetheart deal" is a slang phrase, but it connotes an arrangement that is mutually profitable and either unethical or illegal; the term at least connotes an abnormally favourable contractual arrangement. The context in which Mr Jones refers to sweetheart deals would suggest that these deals are illegal. Mr Jones refers to people "running scared" or being worried that such deals would be unearthed by the Grantham Floods Inquiry. Mr Jones suggests that the Inquiry might be extended "to the Wagner Airport and how they were given the air space over Oakey for nothing - national air space?" He then informs the listener:
"I'm telling you they're all in this, and there's Federal money. And who is picking over the Federal money to look after themselves?
There was a conference in Canberra yesterday, big money being talked, big gifts, big money to hand out. Who's going to get it? As was said at Beef Week we need to cover each other's backs, you look after us and we'll look after you. Well I for one will be watching closely where this Federal Government money goes. Does Mr Wagner have his hand out again? Mr Truss yesterday in Canberra was talking about planned beef roads and dams; who's going to build them? Where's the money going to go? Is that what was meant by we need to cover each other's backs, you look after us and we'll look after you? Well I've got news for all of them; whether in Canberra or not these sweetheart deals with Wagner or anybody else will be closely examined in the light of the Grantham Inquiry and they will be revealed. And if the boys are in on the deals then the deals and the boys will be made public."
[281] Again Mr Jones invites the listener to take a suspicious approach. The Beef Week conversation is repeated by Mr Jones to convey that these sweetheart deals which will be revealed are underhanded deals. The suspicion being created by Mr Jones in the mind of the ordinary reasonable listener is that federal government money is not going where it should be.[165] Mr Jones goes further, however, by asking the listener whether Mr Wagner has his hand out again.
[282] Imputation (b) is conveyed.
[283] As to imputation (c), this is conveyed by Mr Jones' reference to the possibility of the Grantham Floods Inquiry extending "to the Wagner airport and how they were given airspace over Oakey for nothing - national airspace". This is one of the sweetheart deals to which Mr Jones has already referred. The fact that the Wagners obtained a national asset for no consideration would suggest to the ordinary reasonable listener that something underhanded or illegal has occurred. Imputation (c) was conveyed.
[284] I determine that the Twenty-First Matter is of and concerning each of the plaintiffs. The Twenty-First Matter conveyed that each of the first, second, third and fourth plaintiffs:
- (a) conspired with Barnaby Joyce and Warren Truss, the National Party leader, to cover up his culpability for the deaths of people in the Grantham flood disaster;
- (b) conspired with Warren Truss, the National Party leader, Ian Macfarlane, the Energy Minister, and a prominent member of the government, Barnaby Joyce, to cooperate in protecting each other from exposure of their misappropriations of federal money and illegal deals; and
- (c) illegally obtained a national asset, the airspace over Oakey Military Base, for use at his private airport.
[285] 2GB and Mr Jones admit that if the imputations are conveyed, they are defamatory.
[286] The Twenty-Second Matter was broadcast on radio 2GB on 22 June 2015 at approximately 7.55 am. Attachment 22 to these Reasons is a transcript of the words spoken by Mr Jones.
[287] It is in issue whether the Twenty-Second Matter is of and concerning each of the plaintiffs. The Twenty-Second Matter complained of comprises words spoken by Mr Jones in a segment hosted by him during which he interviewed the then newly elected Queensland Deputy Premier, Jackie Trad. The general topic of the interview was whether the Queensland Government would pay for victims to have their own legal representation at the Grantham Floods Inquiry. In the course of the broadcast Mr Jones makes the following statements:
- "Just on the Grantham inquiry, I won't go into detail of the unspeakable cover ups that have occurred in relation to the tragedies of 2011 ..."
- "All withheld evidence. I mean you've started with Golder Associates undertaking this geotechnical work on the Wagner quarry. Interesting the geotechnical investigation has the full cooperation of Boral to whom Wagner sold the quarry in a hurry after the flood, so it will be interesting. ..."
[288] The plaintiffs submit that the ordinary reasonable listener, hearing these references to "cover ups" and to selling the quarry "in a hurry", could not avoid drawing the inference that Mr Jones was pointing the finger at people (the Wagner plaintiffs) and not a thing (the quarry).[166] I accept that the ordinary reasonable listener, by Mr Jones' use of the words "the Wagner quarry" and "Wagner", would understand the broadcast to be of and concerning each of the plaintiffs.
[289] It is in issue whether the imputation was conveyed. The pleaded imputation is:
"By reason of the facts and matters particularised below, the Twenty-Second Matter meant and was understood to mean (as separate imputations arising in respect of each plaintiff) that each of the first, second, third and fourth plaintiffs contributed to an unspeakable cover-up in relation to the Grantham tragedy of 2011 by failing to co-operate with geotechnical work at his quarry and withholding relevant engineering evidence.
(i) The town of Grantham experienced a flood disaster which resulted in the deaths of many people; this fact was notorious;
(ii) the second defendant had made frequent and repeated allegations that the plaintiffs:
(A) were responsible for the Grantham flood disaster and the deaths of many people as a result of the disaster; and
(B) had attempted to cover up their responsibility for the Grantham flood disaster and the deaths of many people as a result of the disaster; and
(iii) the second defendant made the allegation to the effect of that described in particular (ii)(A):
(A) in the Third, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Fourteenth and Nineteenth Matters;
(B) on the Jones Program on 13 October 2014 (commencing at about 7.16 am); and
(C) on the 'Alan Jones Comments of the Day Program' on radio station 4GR on 16 October 2014 (commencing at 1.51 pm);
(iv) The second defendant made the allegation to the effect of that described in particular (ii)(B):
(A) in the First, Second, Third, Seventh, Eighth, Ninth, Tenth, Eleventh, Fourteenth, Fifteenth, Sixteen and Seventeenth, Twentieth and Twenty-First Matters;
(B) on the Jones Program on 13 October 2014 (commencing at about 7.16 am); and
(C) on the 'Alan Jones Comments of the Day Program' on radio station 4GR on 16 October 2014 (commencing at 1.51 pm); and
(v) a further inquiry into the Grantham flood disaster had been announced by the Queensland Government; this fact was notorious."[167]
[290] The plaintiffs rely on Mr Jones' assertion that evidence has in fact been withheld in the context of "unspeakable cover ups":
"Mr Jones identifies that the new quarry owners, Boral, [who] had purchased the quarry from 'Wagner' after the flood are cooperating with geotechnical investigations. From this, there is an implication, and one which the listener would freely have drawn, that Wagner did not cooperate with the investigation, as Boral have. This gives yet further content to the cover-up and one conclusion that might be reached is that Wagner contributed to the cover-up by their failure to cooperate. That is a conclusion that the ordinary reasonable listener would reasonably have reached, particularly as the listener has been invited to adopt a suspicious approach."[168]
[291] The difficulty I have with the pleaded imputation being conveyed is that at the beginning of the broadcast Mr Jones specifically states that he will not go into the details of the "unspeakable cover ups" that have occurred in relation to the tragedies of 2011. Further, Mr Jones' reference to "All withheld evidence" is in response to the Deputy Premier's statement that "the Premier moved swiftly to make sure that there was an opportunity for them to revisit the incidences and to look at fresh evidence, look at fresh engineering evidence". The Deputy Premier makes no reference to the Wagners in this context. An ordinary reasonable listener would not understand the reference to the "Wagner quarry" and Boral's cooperation with the geotechnical investigation as meaning that the Wagners "contributed to an unspeakable cover up in relation to the Grantham tragedy of 2011 by failing to co-operate with geotechnical work at his quarry and withholding relevant engineering evidence". Mr Jones' reference to evidence being withheld cannot, in the context of the broadcast, be readily linked to Boral fully cooperating with the geotechnical investigation in circumstances where the Wagners had sold the quarry to Boral "in a hurry after the flood".
[292] I accept the defendants' submission that knowledge of extrinsic facts cannot be used to enable a listener to assume that every reference to the plaintiffs in Grantham is a reference to, in this case, an unspeakable cover-up.[169] While other broadcasts may have conveyed such a meaning, this broadcast does not. The imputation is not conveyed.
[293] I determine that the Twenty-Second Matter complained of is of and concerning each of the plaintiffs. The Twenty-Second Matter did not, however, convey the imputation that each of the plaintiffs contributed to an unspeakable cover-up in relation to the Grantham tragedy of 2011 by failing to cooperate with geotechnical work at his quarry and withholding relevant engineering evidence.
[294] The Twenty-Third Matter was broadcast on radio 2GB on 20 July 2015 commencing at approximately 6.46 am. Attachment 23 to these Reasons is a transcript of the words spoken by Mr Jones.
[295] There is no issue that the Twenty-Third Matter is of and concerning each of the plaintiffs.
[296] It is in issue whether the imputations were conveyed. The four pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) behaved disgracefully by building an airport in Toowoomba without seeking proper legal approvals and then taking a national asset, the airspace over Oakey, without making any payment for it;
- (b) in breach of a condition on his right to mine his quarry at Grantham, built a massive wall from stockpiled overburden that collapsed, causing the Grantham flood that killed 12 people;
- (c) told a disgraceful lie by stating that an embankment at his quarry that collapsed, causing the deaths of 12 people in the 2011 Grantham flood, was part of the natural landscape, when he well knew that he had built it from stockpiled overburden in breach of a condition of his right to mine the quarry; and
- (d) sold his quarry to Boral, in an effort to cover up his culpability for killing 12 people in the Grantham flood disaster.[170]
[297] As to imputation (a), after opening the broadcast with the words "All hell will break loose in Queensland today", Mr Jones refers to the Toowoomba-based company, Wagners, as "the darlings of the Coalition in Queensland and in Canberra". He then refers to the Wagners in the following derogatory terms: "The mob who built the airport in Toowoomba, remember, without seeking proper approvals." Mr Jones then asserts that the Wagners were "gifted Oakey air space. Gifted. A national asset handed to a private company for nothing." Each time Mr Jones uses the word "gifted" he gives it a particular vocal emphasis. The defendants submit that imputation (a) does not arise for two reasons. First, the inclusion of the adjective "disgracefully" is an unnecessary addition to the second defendant's narrative; and secondly, because the plaintiffs are not accused of taking the airspace over Oakey, rather it was gifted to them.[171] While Mr Jones does not use the word "disgracefully", the meaning is, in my view, conveyed as a matter of inference from the words actually used by Mr Jones. The inference is that the Wagners were gifted the Oakey airspace for nothing and could build an airport without seeking proper approvals, simply because they had political patronage. This type of behaviour by "the mob who built the airport" would be understood by an ordinary reasonable listener as disgraceful behaviour. As to the meaning "taking a national asset", this also arises as a matter of inference in circumstances where Mr Jones refers to the Oakey airspace as being gifted for nothing. This is in the context that it is the Wagners who built the airport. Imputation (a) is conveyed.
[304] The Twenty-Fourth Matter was broadcast on radio 2GB on 21 July 2015 commencing at approximately 7.14 am and continuing at 7.18 am. The broadcast follows the first day of hearings of the Grantham Floods Inquiry. It consists of introductory remarks by Mr Jones and an interview with Mr Cater. Although Mr Cater participates in the broadcast, the plaintiffs' claim is confined to 2GB and Mr Jones. The plaintiffs do not press their application for leave to amend to sue Mr Cater in respect of the TwentyFourth Matter. The plaintiffs have therefore not been granted leave to amend paragraphs 81 and 83 of the second further amended statement of claim. The plaintiffs were directed to file a further amended statement of claim, removing the underlined amendments to paragraphs 81 and 83.
[305] There is no issue that the Twenty-Fourth Matter is of and concerning each of the plaintiffs.
[306] It is in issue whether the imputations were conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) infamously caused the deaths of 12 people by constructing an embankment at his quarry which burst, causing a wall of water to surge through Grantham;
(aa) in the alternative to (a), infamously caused the deaths of 12 people when an embankment constructed at his quarry burst, causing a wall of water to surge through Grantham;
(b) sat at the opening day of the Sofronoff inquiry into the Grantham flood holding his breath, because he feared that the inquiry would discover the cover-up that resulted in an earlier commission of inquiry wrongfully finding that his quarry did not contribute to the disaster; and
(c) sat at the opening day of the Sofronoff inquiry into the Grantham flood holding his breath, because he feared that his culpability for the deaths of 12 people in the flood would finally be uncovered.[174]
[307] Mr Jones commences the broadcast by informing the listener that it was "a very traumatic day for south-east Queensland yesterday ... we saw the dramatic opening of the public hearings of the commission of inquiry, headed by former Queensland Solicitor-General and eminent lawyer, Walter Sofronoff QC". Mr Jones states:
"The first five days of hearings started yesterday, giving residents and eyewitnesses the chance to speak for the first time, about the day a wall of water surged through their town, taking the lives of 12 people. To this point, unexplained. I call it a cover up.
The flood tore homes from their foundations without warning. Locals believes the excess rainfall over the previous week had formed a man-made embankment in a quarry on a creek bed downstream from the town of Helidon, before bursting - the wall bursting - and surging through Grantham."
[308] Mr Jones outlines the key terms of reference of the Inquiry to the listener:
"The key terms of reference at the inquiry centre on the impact made by the man-made and natural features of the landscape. How the Grantham quarry, the infamous Wagner quarry, may have contributed to the flooding. Whether it had a material impact on the damage. And its implication for the evacuation of the town."
[309] Mr Jones then outlines the evidence of the first witness called at the Inquiry, Lisa Spierling.
[310] After criticising the Queensland Floods Inquiry, Mr Jones informs the listener of a statement made at the Grantham Floods Inquiry by Mr Holt QC, who was representing some of the victims:
"Central to that he said was the finding that the sand quarry owned by the businessman Denis Wagner and his family, whom I'm sure yesterday, sat at the inquiry holding their breath that the flood commission of inquiry in 2012 found that the quarry didn't contribute to the disaster. The lawyer Saul Holt said his clients did not accept that finding, given the quarry wall size and location."
[311] Mr Jones returns to Mr Holt's statement while interviewing Mr Cater:
"And he said yesterday, he told the Commission, I quote his words and I'd just like you to comment on this, he told Commissioner Sofronoff quote: the suggestion that the quarry wall, the Wagner quarry, didn't have a substantial impact on the behaviour of the flood waters is something that at least on its face may not pass the sanity test."
[312] As to imputation (a), the plaintiffs submit that the ordinary reasonable listener would have understood that Mr Jones' reference to the "infamous Wagner quarry" meant that the quarry was infamous for something shocking.[175] According to the plaintiffs,
"... the tone of the broadcast, and its content, would have been understood by the ordinary reasonable listener to mean that the plaintiffs caused the deaths of 12 people when an embankment at the quarry burst, causing a wall of water to surge through Grantham. This cause is the subject of the cover-up Mr Jones refers to. This cause is why the findings of the first commission of inquiry were 'plainly ridiculous', and why the 'original inquiry got it wrong'. It is also the reason why the new inquiry will give the people of Grantham 'justice'."[176]
In essence, the plaintiffs' submission is that although the broadcast is dressed up as a report of the first day of hearing, the broadcast creates the impression that the outcome of the inquiry is a foregone conclusion. As submitted by Senior Counsel for the plaintiffs, "Mr Jones is judge, jury and executioner ... in this broadcast".[177]
[313] Having listened to the broadcast, I am unable to accept the plaintiffs' submissions. An ordinary reasonable listener would understand the broadcast and the interview with Mr Cater as primarily concerned with recounting of the first day of the Grantham Floods Inquiry. While Mr Jones refers to the "infamous Wagner quarry", nowhere does he suggest in this broadcast that the embankment was constructed by the Wagners. To the contrary, when he refers to the belief of locals, Mr Jones states, "...the excess rainfall over the previous week had formed a man-made embankment in a quarry on a creek bed downstream from the town of Helidon, before bursting - the wall bursting - and surging through Grantham". The statement is contradictory in that it refers to excess rainfall forming a "man-made" embankment. Nor would an ordinary reasonable listener understand the pleaded imputation to arise from Mr Jones' stating of the terms of reference of the Grantham Floods Inquiry. Neither of these passages, in my view, convey the pleaded meaning. Nor does the recounting of Mr Holt's statement either expressly or by implication suggest that the Wagners constructed the embankment at the quarry. The first of Mr Holt's statements recounted by Mr Jones identifies the issue as to whether the quarry contributed to the disaster. The second reference is somewhat equivocal; Mr Holt is quoted as saying, "...the suggestion that the quarry wall, the Wagner quarry, didn't have a substantial impact on the behaviour of the floodwaters is something that at least on its face may not pass the sanity test." It is not clear whether Mr Jones in quoting Mr Holt is making reference to the quarry itself or the quarry wall. Irrespective of this lack of clarity, there is no statement by Mr Jones in this broadcast that the Wagners constructed the embankment.
[314] I am also of the view that the alternative imputation is not conveyed. A reference by Mr Jones to "the infamous Wagner quarry" does not convey that the Wagners "infamously" caused the deaths of 12 people. Mr Jones' reference to "the infamous Wagner quarry" is in the context of him stating the Inquiry's terms of reference, namely, "how the Grantham quarry ... may have contributed to the flooding. Whether it had a material impact on the damage." These statements do not seek to attribute responsibility for the deaths of 12 people to the plaintiffs. This is to be contrasted with previous broadcasts where Mr Jones makes specific reference to the plaintiffs building the wall at the quarry "up, and up, and up".
[318] The Twenty-Fifth Matter was broadcast on radio 2GB on 22 July 2015 commencing at approximately 8.10 am and continuing at 8.19 am. Attachment 25 to these Reasons is a transcript of the words spoken by Mr Jones.
[319] 2GB and Mr Jones admit that the Twenty-Fifth Matter is of and concerning each of the plaintiffs.[178]
[320] It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) was a disgusting and disgraceful person who had tried to evade his responsibility for the deaths of people in the Grantham flood disaster, but who was now finally being exposed by ordinary tough, brave, courageous Australians;
- (b) caused the Grantham flood by building a huge wall, three times higher than a truck, around his quarry, which collapsed, causing water to smash houses to bits and a shed to explode;
- (c) told a disgraceful lie by stating that a wall on his quarry that burst, causing water to smash houses to bits and a shed to explode, was a natural feature of the landscape, when he well knew that it was a man-made structure.
[321] From Mr Jones' delivery of this broadcast, the ordinary reasonable listener would have gained the clear impression that the outcome of the Grantham Floods Inquiry was a foregone conclusion. That conclusion was that a manmade wall built by the Wagners at the quarry had burst, creating a surging wall of water which resulted in the Grantham Flood event. This impression would have been readily gained by the listener from Mr Jones making the following statements:
- "I'll tell you what, if Denis Wagner was covering his face on the first day of the Grantham inquiry then yesterday was much more pain for the Wagners."
- "Well now the evidence after two days is starting to mount in this Grantham inquiry."
- "But the next witness changed the entire case. Jon Sippel."
- "What he had to say changed the course of the entire case in a matter of hours. He described the wall that was built around the quarry. He said, three times higher than my truck."
- "Then he described watching the water build up behind the quarry wall to the extent that it was swirling, he said, in a circular direction. ... then suddenly he said he heard it, a long fifteen second crashing and banging, a massive noise that went on and on and on as the water burst through the banks of the quarry and smashed their houses to bit. He said he could see one of his sheds exploding and bobbing out of the water and twenty minutes later, he said, he returned to his smashed up house with his wife and kids and all the water was gone."
[332] The Twenty-Sixth Matter was broadcast on radio 2GB on 23 July 2015 commencing at approximately 8.58 am. Attachment 26 to these Reasons is a transcript of the words spoken by Mr Jones. Only the second plaintiff, John Wagner, sues in respect of this broadcast.
[333] 2GB and Mr Jones admit that the Twenty-Sixth Matter is of and concerning John Wagner. It is in issue whether the imputation was conveyed. The pleaded imputation is that in its natural and ordinary meaning or alternatively by reason of certain extrinsic facts, the Twenty-Sixth Matter meant and was understood to mean that the second plaintiff conspired with Warren Truss, the Deputy Prime Minister of Australia, and other federal ministers, that they would cooperate together to cover up his culpability for the deaths of people in the Grantham flood disaster.[183]
[334] The Twenty-Sixth Matter is similar in content to the Fifteenth, Sixteenth and TwentyFirst Matter, each concerning Beef Week. The broadcast is short and is set out in full:
"Just in relation to the Liverpool Plains, you will recall about Beef Week in Rockhampton in May. Everything I've told you. Beef Week.
And a very funny thing happened then, at Rockhampton. Because Warren Truss and co were there. They were talking about agricultural policy and free trade deal. And it upset John Wagner, talking to the group, which involved Warren Truss, the Federal Ministers. And one of them said to Wagner: be careful, the judge they've appointed to this has got it in for us. This is the Grantham inquiry.
Then the conversation went like this: we need to cover each other's backs in this, you look after us and we'll look after you. Beef Week in Rockhampton. Is that the reason why the Federal Government is silent on the Liverpool Plains? Who is looking after whom? Is this why there was a cover up at Grantham? You look after us, we look after you.
These are pretty sickening developments. We'll keep at it, with your support, and we're grateful. Thank you for that, thanks for your company - see you tomorrow. Bye."
[335] For reasons already given in relation to the Fifteenth, Sixteenth and TwentyFirst Matters, the imputation is conveyed.
[336] 2GB and Mr Jones do not dispute that, if conveyed, the imputation is defamatory of John Wagner.
[337] 2GB and Mr Jones do not seek to defend this defamatory imputation. As discussed below in relation to damages, I consider this imputation to be very serious.
[338] The Twenty-Seventh Matter was broadcast on radio 2GB on 24 July 2015 commencing at about 7.14 am and continuing at 7.21 am. Attachment 27 to these Reasons is a transcript of the words spoken by Mr Jones. The broadcast comprises introductory remarks by Mr Jones followed by an interview with Martin Warburton and Ken Arndt.
[339] 2GB and Mr Jones admit that the Twenty-Seventh Matter is of and concerning each of the plaintiffs.
[340] It is in issue whether the imputations arise. There are seven pleaded imputations in relation to each of the first, second, third and fourth plaintiffs and an additional imputation in respect of the first plaintiff:
"91. In its natural and ordinary meaning, the Twenty-Seventh Matter meant and was understood to mean (as separate imputations arising in respect of each plaintiff) that each of the first, second, third and fourth plaintiffs:
(a) is a person who thought he could get away with building an airport at Toowoomba without seeking proper approvals, and without having to pay for a national asset, the airspace over Oakey;
(b) by reason of his corrupt relationship with the Coalition in Queensland and Canberra, was able to buy the airport at Toowoomba without seeking the required approvals and were then gifted Oakey airspace, which is a valuable national asset;
(c) caused the deaths of 12 people by stockpiling overburden at his quarry so as to form a levee bank, in breach of a condition of the right to mine the quarry, which collapsed causing the Grantham flood;
(d) told a disgraceful lie by stating that a wall alongside his quarry that collapsed, causing the Grantham flood and killing 12 people, was part of the natural landscape, when he well knew that it had in fact been constructed from a stockpile of overburden in breach of a condition of the right to mine the quarry;
(e) sold his quarry to Boral in an effort to cover up his legal culpability for the horrific deaths of 12 people in the Grantham flood disaster;
(f) disgracefully instructed the barrister appearing for him at the Grantham flood inquiry to bully a local resident, Ian Pinkerton, while cross-examining him as he gave evidence about the torment he and his family suffered during the fatal floods that hit the Lockyer Valley in 2011; and
(g) has, for years, bullied and intimidated tough, brave and courageous victims of the 2011 Grantham flood in order to shut them up and cover up his culpability for causing the flood and the deaths of 12 people.
[341] In the course of this broadcast, Mr Jones repeats many of the same accusations made in previous broadcasts. Mr Jones makes the following statements:
- "Look, at week's end, this Commission of Inquiry into what is infamously known as the Grantham floods has already offered extraordinary revelations, you just can't believe this can happen in Australia."
- "Everyone knows the story, 2011, evidence, as you heard, that the Toowoombabased company Wagners, the darlings of the Coalition in Queensland and Canberra. The mob who bought the airport at Toowoomba without seeking approvals and then were gifted Oakey airspace, gifted a national asset, handed over to a private company. They thought they could please themselves, that the world ran according to their dictates."
- "Well, they had the rights to mine the quarry at Grantham. One of the conditions was pretty simple, condition 4, overburden is not permitted to be stockpiled so as to form a levee bank. There it is, as I said earlier this week, in front of me in writing. The Wagners of course have said this is rubbish, that that was stockpiled, creating a massive wall alongside the quarry, they said, oh, it was part of the natural landscape."
- "In the flood, the quarry became a bathtub, the weight of the water collapsed the embankment and 12 people had no hope. At least that's what's being alleged and being tested by this inquiry. The Wagners couldn't wait to sell the quarry, the same year as the floods, to Boral. Boral haven't operated the quarry since."
- "Annastacia Palaszczuk called for an inquiry, it began this week. The people of Grantham are deeply in her debt. It was a courageous decision in the face of many, on both sides of politics, who wanted the cover-up to continue."
- "Now, of course, these people have been bullied and intimidated for years, and that was the component of the cover-up. He was bullied yesterday, Mr Pinkerton, by the lawyer representing the Wagners, Peter Davis QC."
- "Ken Arndt gave evidence challenging claims the wall at Wagners quarry was a natural feature. He said, I'd been fishing there as far back as 30 years and I know it was once a paddock. There was no wall there. That's it. Mr Pinkerton said, here we are again having to re-live that day, and it rips our hearts out just being here. This could have all been stopped if Denis Wagner had just said, yes, I f-d up."
"Ken Arndt gave evidence challenging claims the wall at Wagners quarry was a natural feature. He said, I'd been fishing there as far back as 30 years and I know it was once a paddock. There was no wall there. That's it. Mr Pinkerton said, here we are again having to re-live that day, and it rips our hearts out just being here. This could have all been stopped if Denis Wagner had just said, yes, I f-d up."
[348] I accept the plaintiffs' submission that in the context in which this statement was made, the ordinary reasonable listener would have understood that the people of Grantham are having to re-live a tragic day, which saw 12 people killed and a town destroyed, because Denis Wagner has refused to admit his liability. It is that refusal, and that alone, which is requiring the Grantham residents to continue to be traumatised, having their hearts ripped out. In those circumstances, that refusal is an act of selfishness and the actions of a coward. For these reasons the additional imputation relied upon by the first plaintiff was conveyed.[187]
[349] I find that each of these imputations was conveyed by the Twenty-Seventh Matter. Imputations 91(a) to (g) are defamatory of each of the plaintiffs. The additional imputation is defamatory of the first plaintiff.
[350] The Twenty-Eighth Matter was broadcast on radio 2GB on 28 July 2015 commencing at approximately 6.45 am.
[351] 2GB and Mr Jones admit that the Twenty-Eighth Matter is of and concerning the plaintiffs.
[352] It is in issue whether the imputations were conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) attempted to cover up his culpability for causing the deadly Grantham flood by pulling down a wall at his quarry straight after the flood and removing the material, which was full of big chunks of heavy rocks and cement, on the back of trucks; and
- (b) told a disgraceful lie by stating that the wall at his quarry that caused the deadly Grantham flood was a natural feature of the landscape, when he well knew it was in fact a man-made wall that was built from big chunks of heavy rocks and cement.[188]
An additional imputation is pleaded only in respect of the first plaintiff, Denis Wagner:
(c) the first plaintiff engaged in a disgraceful and bizarre attempt to bully and intimidate a victim of the deadly Grantham flood, Ian Pinkerton, and to escape scrutiny for his culpability in causing the flood, by driving to Pinkerton's house after the Flood Inquiry had adjourned, getting out of his car, and standing and staring at Pinkerton's home.[189]
[353] Mr Jones commences the broadcast by informing the listener that Mr Sofronoff QC had suspended the Grantham Floods Inquiry "due to quite unforeseeable circumstances". He refers to the next witness to be called, John Gillespie, whose evidence "will be red hot". Mr Jones states that Mr Gillespie's evidence will be that he walked his dog past the quarry every morning and "saw them building the wall higher and higher". Another witness, Patrick Gallagher, engaged surveyors who found that the levee wall at the quarry was about 4.7 metres higher than the Queensland Floods Inquiry claimed. Mr Jones then refers to the evidence of Tommy Friend, who saw "them build it and he then saw them pull it down straight after the flood. He saw the material leaving on the back of trucks, it was all full of big chunks of heavy rocks and cement." Mr Jones emphasises the words "build it" and "pull it down". Mr Jones then states: "So much for the natural features of the landscape rubbish that Wagner goes on about. Word is out the inquiry's going to call Denis Wagner up as early as Wednesday."
[354] Mr Jones then raises the topic of bullying of potential witnesses:
"It may well be that some people are going to be brought forward to prevent the bullying of potential witnesses. Last week, Ian Pinkerton, a former employee of Wagner's, gave his evidence, where he said quote: why don't you just admit you F-ed up, Denis. It's reported that Wagner was then seen allegedly pulling up in his car outside Pinkerton's house in Grantham later than afternoon, after the inquiry had adjourned, and getting out of his car and standing and staring at Pinkerton's home. It's believed that Pinkerton was sitting inside. After a few minutes of this bizarre performance, Wagner drove off. That sort of stuff, that tactic has been used on others.
Now, it is extraordinary, some of the stories that are being told here, but at the end of the day they're not going to escape the scrutiny that must apply. Look, just one thing - and I'll keep you posted on that Grantham thing - it's just appalling and the cover-up is being uncovered. And there will be no escape for some. None."
[355] As to imputation (a), this is conveyed by Mr Jones' reference to the quarry wall being built "higher and higher" and being "about 4.7 metres higher than the original flood inquiry claimed", and Mr Friend seeing "them [inferentially the Wagners] pull it down straight after the flood". One must listen to the broadcast to appreciate how Mr Jones emphasises the words "pull it down straight after the flood". Mr Jones informs the listener as to the nature of the material that is taken away on trucks, namely "big chunks of heavy rocks and cement". These words convey to an ordinary reasonable listener that the Wagners had the wall removed straight after the flood. It is a ready inference to be drawn by the ordinary reasonable listener that the purpose to be achieved in removing this wall "straight after the flood" was to cover up the plaintiffs' culpability. This culpability is brought home to the listener by Mr Jones saying, "So much for the natural features of the landscape rubbish that Wagner goes on about".
[356] As to imputation (b), this is conveyed by the same words. By referring to Wagner's account of the wall being part of the landscape as "rubbish", the listener is left with the clear impression that what Wagner has said is a lie. It is a disgraceful lie because it seeks to cover up his culpability for the Grantham Flood event.
[357] As to imputation (c), this is conveyed by Mr Jones recounting the story of Mr Denis Wagner being outside Mr Pinkerton's house. It is Mr Jones himself who refers to this conduct as a "bizarre performance". He also refers to this conduct as "that sort of stuff, that tactic has been used on others". Denis Wagner's conduct is also described in the context of "bullying of potential witnesses". The defendants submit that this imputation is not conveyed because it is reported by Mr Jones as an allegation. The words used by Mr Jones are: "it's reported that Wagner was then seen allegedly pulling up in his car outside Pinkerton's house in Grantham later than afternoon, after the inquiry had adjourned". Mr Jones' tone and emphasis in delivering this part of the broadcast, in my view, convey to the ordinary reasonable listener that this allegation is true. When he says the word "allegedly", it is more of an aside. This is to be contrasted with his use of emphasis when he is recounting Denis Wagner's conduct. The words "getting out of his car and standing and staring at Pinkerton's home" are all emphasised. Further, Mr Jones finishes the broadcast by stating that "they're not going to escape the scrutiny that must apply ... I'll keep you posted on that Grantham thing - it's just appalling and the cover-up is being uncovered. And there will be no escape for some. None." The impression conveyed by these words is that Denis Wagner sought to, or attempted to, bully and intimidate a witness. I accept the plaintiffs' submission that, given the sensationalist tone adopted by Mr Jones (which includes the suggestion that the suspension of the Inquiry was due to the bullying of potential witnesses), the listener would naturally have wondered why such bullying took place. There could only be one answer to this: to prevent witnesses coming forward to expose Mr Wagner's culpability for causing the flood.
[361] The Twenty-Ninth Matter was broadcast on radio 2GB on 29 July 2015 commencing at approximately 6.44 am. Attachment 29 to these Reasons is a transcript of the words spoken by Mr Jones.
[362] 2GB and Mr Jones admit that the Twenty-Ninth Matter is of and concerning each of the plaintiffs. They also admit that in respect of the first plaintiff, Denis Wagner, the TwentyNinth Matter conveyed the imputation that Denis Wagner attempted to bully and intimidate a victim of the disastrous 2011 Grantham flood, Ian Pinkerton, by pulling up outside Pinkerton's house after he had given evidence to the Flood Inquiry, getting out of his car, and standing and staring at Pinkerton's home.[191]
[363] It is in issue whether the Twenty-Ninth Matter conveyed the pleaded imputations that each of the first, second, third and fourth plaintiffs:
- (a) caused the disastrous 2011 Grantham flood by building a massive wall at his quarry that collapsed, sending water cannoning north-east and down to Grantham; and
- (b) told a disgraceful lie by stating that the massive wall at his quarry that caused the disastrous 2011 Grantham flood was already there when he bought the quarry, when he well knew that he had built the wall from rubbish at the quarry over a period of years.[192]
[364] Yet again, Mr Jones in his delivery of this broadcast conveys to the ordinary reasonable listener that there will be only one outcome from the Grantham Floods Inquiry, namely that the Wagners will be found to be culpable. Mr Jones makes the following statements:
- "The general consensus from those at the hearing - and I'm speaking to these people regularly, the Grantham hearing yesterday - is that a quietly spoken farmer became the executioner. Tony McIntosh known as Tony Mac was decimating. The one photo he showed of the water with the quarry wall in the background was the killer, what they call in sport I suppose the money shot. He became the executioner."
- "Yesterday it was quite clear from all the aerial footage, the pictures, and the verbal descriptions that the quarry wall held back a massive amount of water. When the wall collapsed the water went straight across the full quarry and cannoned north east, hit Tommy Friend's house, Johnny Sippel's house, and then cannoned down to Grantham."
[372] The Thirtieth Matter was broadcast on radio 2GB on 31 July 2015 commencing at approximately 6.43 am. Attachment 30 to these Reasons is a transcript of the words spoken by Mr Jones.
[373] 2GB and Mr Jones admit that the Thirtieth Matter is of and concerning each of the plaintiffs.
[374] There are six pleaded imputations alleged to be conveyed by the Thirtieth Matter. The first three are in respect of the first, second, third and fourth plaintiffs and allege that each:
- (a) was a selfish, insensitive grub for having lied about the fact that the collapse of an illegal levee bank at his quarry was the cause of the flood that caused the horrific deaths of 12 people in the Grantham flood disaster;
- (b) is a selfish, insensitive grub who falsely claimed to have suffered in the Grantham floods in which 12 people died; and
- (c) in concert with politicians, big business and the police, engaged in a cover-up of his culpability for the Grantham flood in which 12 people died.[193]
[375] Two further imputations are said to be conveyed in respect of the first plaintiff, Denis Wagner, namely that he:
- (d) while giving evidence at the Grantham flood inquiry, was forced to admit that he had previously lied about dumping overburden along the side of the creek at his quarry contrary to the conditions allowing him to mine the quarry, about knowing that overburden have been so dumped, and about dumping overburden under powerlines; and
- (e) disgracefully claimed that victims of the Grantham flood had told false stories under oath at the flood inquiry.[194]
[376] The plaintiffs also plead that the Thirtieth Matter conveyed an imputation in respect of the second plaintiff, John Wagner, namely that he:
- (f) hosted a dinner for the state conference of AgForce in Queensland, with the intention of getting into bed with farmers and getting AgForce to sell out so that he can plunder the agricultural resources that AgForce is meant to be defending.[195]
2GB and Mr Jones admit that the Thirtieth Matter conveyed imputations (b), (e) and (f), but deny that imputations (a), (c) and (d) were conveyed.
[377] The plaintiffs, accurately in my view, describe this broadcast as a "scathing attack".[196] Mr Jones, in outlining the evidence given to the Grantham Floods Inquiry by Denis Wagner, makes the following statements:
- "To sew up what happened at the Grantham inquiry yesterday, you could basically say that Denis Wagner, the boss of the Wagner company, by the end of the day was admitting everything he'd previously denied. Wagner, confronted with devastating photographs, was forced to admit that yes, they did dump overburden along the side of the creek, contrary to the conditions which allow them to mine the quarry."
- "At the end of the day, Wagners were at their very, very worst."
- "The Toowoomba Chronicle running a headline about how the quarry owner Wagner claimed that the flood inquiry had told false stories. Does Mr Wagner understand that these personal stories about what happened to Grantham people, during the flood, were given under oath? Now Wagner is saying they didn't ring true."
- "He said his family had suffered from the flood, and his business had been impacted. Is he serious? A family worth millions, with a private jet and a chopper, which lives in Gone With the Wind style, and they're saying they suffered? And 12 people died. Lost their lives. What kind of selfish, insensitive grubs are these people?"
- "Mr Wagner says, we suffered too. He's got to be kidding."
- "The real question to be asked is, how did politicians and their mates in big business, and the police, allow all this to be covered up."
- "And now Mr Wagner is suggesting that false stories have been told to the inquiry under oath, do you mind, and his family suffered from the flood, and business had been impacted. I think what Mr Wagner was really saying was that justice is on its way and it might not be a comfortable outcome for him."
[378] The impression these words would create in an ordinary reasonable listener is that Denis Wagner was finally forced to confess that the Wagner company had dumped overburden along the side of the creek contrary to conditions which allowed it to mine the quarry. The admission was forced out of him because he was "confronted with devastating photographs". The ordinary reasonable listener would infer that everything previously stated by Denis Wagner in this respect was lies.
"Condition Four says, quote, overburden is not permitted to be stockpiled so as to form a levee bank. Well now, oh yes they did dump overburden. On Wednesday he said they didn't know; the staff might have done it; he didn't know. On Wednesday he told the Commission Inquiry they wouldn't have dumped overburden under the power lines. Yesterday he had to admit that they did."
[383] Mr Jones, by using such terms as "was forced to admit", "he had to admit", and "everything he had previously denied" conveys to the ordinary reasonable listener that Denis Wagner, in the course of giving evidence at the Grantham Floods Inquiry, was forced to admit he had previously lied about the dumping of overburden contrary to conditions allowing him to mine the quarry.
[384] As to the first, second, third and fourth plaintiffs, imputations (a), (b) and (c) are conveyed. In relation to the first plaintiff only, imputations (d) and (e) are conveyed. In relation to the second plaintiff only, imputation (f) is conveyed.
[385] 2GB and Mr Jones admit that if the imputations are conveyed, each is defamatory of the relevant plaintiff.[198]
[386] The Thirty-First Matter was broadcast on radio 2GB on 4 August 2015 commencing at approximately 8.14 am. Attachment 31 to these Reasons is a transcript of the words spoken by Mr Jones.
[387] 2GB and Mr Jones admit that the Thirty-First Matter is of and concerning each of the plaintiffs.
[388] Whether the imputations are conveyed is in issue. There are two pleaded imputations, one in respect of all plaintiffs, and an additional imputation relevant only to the first plaintiff, Denis Wagner. The pleaded imputations are:
- (a) that each of the first, second, third and fourth plaintiffs was knowingly involved in a scandalous cover-up of the role that his quarry played in the deaths of people in the Grantham flood disaster, a cover-up that resulted in an appalling injustice;[199]
- (b) the first plaintiff, while giving evidence at the Grantham Floods Inquiry, was forced to admit that he had previously lied about overburden having being dumped on the western side of his quarry near Lockyer Creek. This imputation is alleged to be carried by reason of an innuendo meaning by reference to the following extrinsic facts:
- (i) the first plaintiff gave evidence before the Commission of Inquiry on the occasion referred to; and
- (ii) on 11 August 2015, the first plaintiff was identified by Mr Jones in his radio program as the person who had given such evidence.[200]
[389] In the course of the broadcast Mr Jones made the following statements:
- "This Grantham Flood Commission of Inquiry is examining, as you know, whether a quarry caused or contributed to the January flood in 2011 that killed 12 people, the Wagner quarry."
- "Wagner, of course last week in the box under cross-examination, it wasn't a pretty sight. He was shown an aerial photograph taken in 1997 of the quarry, was asked if he agreed it depicted the land in its natural state. Mr Wagner said the picture wasn't clear enough, but then agreed the photo showed that overburden had been dumped on the western side of the quarry near the Lockyer Creek. To which Mr Sofronoff, the Commissioner, said well we can eliminate it, can't we, as being a safety barrier. Mr Wagner: yes. Mr Sofronoff: it looks like overburden's been dumped there; Mr Wagner: yes. Mr Wagner had previously denied the very thing he was now agreeing to."
[397] The Thirty-Second Matter was broadcast on radio 2GB on 11 August 2015 commencing at approximately 7.19 am and continuing at 7.40 am. Attachment 32 to these Reasons is a transcript of the words spoken by Mr Jones, including those spoken by him in an interview he conducted with a journalist, Amanda Gearing.
[398] 2GB and Mr Jones admit that the Thirty-Second Matter is of and concerning each of the plaintiffs.
[399] Whether the imputations are conveyed is in issue. There are three pleaded imputations in respect of the first, second, third and fourth plaintiffs, and one imputation which concerns only the first plaintiff, Denis Wagner. As to the first three imputations, they are that each of the first, second, third and fourth plaintiffs:
- (a) caused the Grantham flood that killed 13 people on 10 January 2011 by constructing a massive wall at his quarry, which enabled a huge build-up of floodwater upstream of the wall, which in turn destroyed the wall, sending a wall of water at a speed and rate of rise that was phenomenal through the floodplain area of Grantham;
- (b) attempted to cover up his culpability for causing the Grantham flood that killed 13 people on 10 January 2011, by removing large sections of an embankment on the northern side of his quarry in May 2011 so that it could not be the subject of a hydrology report; and
- (c) engaged in a sinister cover-up of his culpability for causing the Grantham flood that killed 13 people on 10 January 2011, by attempting to intimidate a journalist and confiscate photographic evidence.[203]
[400] The imputation in respect of the first plaintiff is that he:
- (d) while giving evidence at the Grantham flood inquiry, was forced to admit that he had previously lied about the embankment at his quarry that exacerbated the 2011 Grantham flood being part of the natural landscape.[204]
[401] The Thirty-Second Matter is a lengthy broadcast. It commences with introductory remarks by Mr Jones in which he does not mention the Wagners at all. He concludes these introductory remarks by referring to Mr Cater's article in The Spectator. Mr Jones paraphrases what Mr Cater wrote: "...the killer flood that wrecked the town of Grantham in 2011 was not, as that Commission concluded, a purely natural disaster caused by what we are now obliged to call a weather event, it was a man-made tragedy triggered by a collapsing quarry wall. He wrote, someone has to answer for that."
"Which was Wagners. And that's partly because we were there. We went in there because we heard - well I heard from Tom Friend that there was large machinery there taking down part of the embankment, and I was working at the time on a story with Tony Koch, he got a photographer and we went there and we asked the photographer to take some quick shots and get out. He spent quite a long time doing it, so much time that we could see people in the cabs making phone calls, and before the photographer could get back in the car there was a four wheel drive preventing us from getting out of the quarry. Tony Koch had a quick word to the photographer and said grab that card, give it to Amanda, Amanda shove it down your bra - which I did. Tony then spoke to the person who stopped us and that person demanded the camera card. So I can only conclude from that that what we had on the camera card was relevant."
Mr Jones responds: "Correct". From this passage and Mr Jones' reference to The Spectator article, the plaintiffs submit that the ordinary reasonable listener would have understood Mr Jones to be asserting, as a matter of fact, that the devastating Grantham flood was not a natural disaster, but rather a man-made tragedy triggered by the collapsing quarry wall. That someone must "answer for" this man-made tragedy would have been understood by the ordinary reasonable listener to mean someone is to be held responsible for doing something wrong.[205]
[404] As to Ms Gearing visiting the quarry, the plaintiffs submit that the ordinary reasonable listener would have understood that the reason she was visiting the quarry was because she had heard that the embankment was being removed. She and her companions were in effect prevented from leaving the quarry by a four wheel drive, and the person in the four wheel drive who stopped them demanded the camera card on which the photos were taken. The plaintiffs submit that the listener would have understood Ms Gearing to be saying that she and her companions were intimidated by this demand, not least because it prompted Mr Koch to tell Ms Gearing to hide the camera card in her underwear. The listener, according to the plaintiffs, would have understood that the person was demanding the camera card because it contained something incriminating and which there was a necessity to conceal.[206] This is the substance of imputation (c). The defendants submit that imputation (c) does not arise because there is no suggestion of a cover-up and, in particular, there is no suggestion of intimidatory behaviour. Mr Koch, listeners are told, "spoke to the person who stopped us and that person demanded the camera card". According to the defendants, demanding the camera card from a person who had apparently been trespassing on the quarry grounds, without more, is hardly behaviour likely to be intimidating. There is nothing said, for example, about demeanour, or what was said, or that anything was actually done, other than a single demand.[207] The difficulty I have with the defendants' submission is the context in which the incident is conveyed by Ms Gearing. The incident takes place in May 2011, approximately four months after the Grantham Flood event. The reason for Ms Gearing attending the quarry is conveyed to the listener, namely to take photographs because large sections of the remaining embankment at the quarry were being removed. The element of intimidation being conveyed to the ordinary reasonable listener arises from Ms Gearing's own conclusion that the photographs on the camera card were relevant. The implication is that the Wagners, as owners of the quarry, were seeking to cover up their culpability by removing the embankment and did not wish there to be any photographic evidence of such removal. The cover-up is "sinister" in the sense that what is sought to be covered up is the Wagners' culpability for the deadly 2011 Grantham floods.
"ALAN JONES: You say in your submission the natural disaster was exacerbated by human intervention in the landscape. You talked to Mr Harold George who said that when he worked there which would be pre Wagner's, there was no- he said that this didn't exist, the landscape had changed significantly since he worked there. You say Mr George said any claim the embankment's unnatural ground are not true. They were not there when he worked there. Didn't Mr Denis Wagner initially argue that this was part of the natural landscape and didn't he under cross examination have to concede that that wasn't correct?
ALAN JONES: Right, and you say it was exacerbated, the natural disaster was exacerbated by human intervention in the landscape. Whose intervention therefore could that be?
AMANDA GEARING: Well it's a range of people who would be people who are working at the quarry. Now...
ALAN JONES: See why I'm asking this there's a headline at the weekend and I know one of the concerns you have and I can't believe that Mr Sofronoff doesn't have [indistinct] the way in which this stuff's been reported. It was a massive headline; Alan Jones turns the Grantham flood inquiry into a blame game. And it says- the story said the Grantham inquiry headed by former Solicitor-General- it's a big headline in the Courier Mail at the weekend, Walter Sofronoff QC, has not heard a shred of evidence of cover ups or criminal wrongdoings by police. Well that's a judgement yet to be handed down, the premiers, the Wagners or anybody else. But then the article said this: There's a growing sense at the inquiry that the quarry's part in the flooding was negligible just as the original 2012 Cate Holmes flood inquiry found. I mean how can that ascertain [sic] be made?"
[407] From this exchange the plaintiffs submit that the ordinary reasonable listener was given several distinct messages:
- (a) first, those responsible for the human intervention in the landscape (which they have already been told caused the killer flood) were the Wagners or people employed by them;
- (b) second, that it is the Wagners who should be held responsible; and
- (c) third, that Denis Wagner had in fact lied about the landscape at the quarry.[208]
[408] The defendants submit that if imputations (a), (b) and (c) are conveyed by the ThirtySecond Matter, the meanings are only conveyed in respect of the first plaintiff. The defendants rely on the following passage spoken by Ms Gearing:
"... Alan, but it wasn't all the Wagners. And this is where we get to really what was going on, and we've had it in evidence during the week. When John Wagner gave his evidence, and when the inquiry began on the very first day when the inquiry opened on July 20, everybody was in Gatton Cultural Centre to hear that evidence. There was one person who wasn't there. That one person was a Wagner- John Wagner. John Wagner went to Tom Friend's house which is exactly opposite the quarry, and John Wagner asked Tom Friend some really interesting questions. The questions were Tom where did the water go in the flood? Where is the quarry pit? Where was the embankment? What happened to your house and the house around- the other house here, which Tom explained they were both trashed. And he said and how far is it to where the people were killed?
Now what we have here is a family not communicating. One man, Denis, is in charge of the quarry operations and has been manager of that quarry for 11 years. John Wagner is managing other big things, but the problem is Denis could not tell John what was going on, and John came down there with his camera to find out on day one of the inquiry."
[409] According to the defendants, the meanings constituting imputations (a), (b) and (c), all of which relate to the quarry, could only have been understood as being directed at the first plaintiff. The point made by Ms Gearing is not taken up by Mr Jones in the interview at all. He had previously referred to the quarry being owned by "Wagners", to which Ms Gearing's response was "Which was Wagners". Although Ms Gearing draws the distinction to Mr Jones' attention, because of Mr Jones' previous and subsequent references to "the Wagners", the ordinary reasonable listener would not have appreciated the distinction drawn by Ms Gearing. Even if such a distinction should be drawn in relation to imputation (a), no such distinction should be drawn in relation to imputations (b) and (c), which deal with a cover-up. As to there being a cover-up, the plaintiffs rely on further words spoken by Mr Jones in the broadcast: "... it's a big headline in the Courier Mail at the weekend, Walter Sofronoff QC, has not heard a shred of evidence of cover ups or criminal wrongdoings by police. Well that's a judgement yet to be handed down, the premiers, the Wagners or anybody else." The plaintiffs submit, and I accept, that this phrase would give the ordinary reasonable listener the impression that the statement in the Courier Mail article is inaccurate, and that in fact there will be some form of judgment handed down which does contain evidence of cover-ups involving the Wagners.[209]
[410] As to imputation (d), this imputation arises from Mr Jones' reference to Denis Wagner conceding in cross-examination that his previous references to the embankment being part of the natural landscape were not correct. As this concession was given by Mr Wagner under cross-examination, an ordinary reasonable listener would understand that Mr Wagner's previous references were lies.
[411] 2GB and Mr Jones admit that, if conveyed, imputations (b), (c) and (d) are defamatory of the relevant plaintiff. For reasons given above, imputation (a) is also defamatory.
[412] I determine that the Thirty-Second Matter conveyed imputations that each of the first, second, third and fourth plaintiffs:
- (a) caused the Grantham flood that killed 13 people on 10 January 2011 by constructing a massive wall at his quarry, which enabled a huge build-up of floodwater upstream of the wall, which in turn destroyed the wall, sending a wall of water at a speed and rate of rise that was phenomenal through the floodplain area of Grantham;
[414] The Thirty-Third Matter was broadcast on radio 2GB on 18 August 2015 commencing at approximately 7.42 am. Attachment 33 to these Reasons is a transcript of the words spoken by Mr Jones.
[415] 2GB and Mr Jones admit that the Thirty-Third Matter is of and concerning each of the plaintiffs.
[416] It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) caused the lethal Grantham flood by constructing a massive, illegally built, wall at his quarry which burst, sending billions of litres of water into Grantham;
(aa) in the alternative to (a), caused the lethal Grantham flood when a massive, illegally built wall at his quarry burst, sending billions of litres of water into Grantham; and
(b) sought to mislead the Sofronoff inquiry by instructing his lawyer to assert that his quarry had no material impact on the flooding that occurred in Grantham in 2011, when he well knew that billions of litres of water had built up behind a massive, illegally built wall at the quarry that burst, sending the water into Grantham.[210]
[417] This broadcast concerns the Grantham Floods Inquiry and a hydrology report which Mr Jones states "was leaked last week". The finding of that hydrology report was that the quarry did not contribute to the disaster. Having stated the conclusion of the report, Mr Jones tells his listeners, "Believe that and you'll believe anything".
[418] Mr Jones follows this by summarising the opening statements of the legal representatives for the victims to the Grantham Floods Inquiry. These statements are to the effect that the quarry did contribute to the disaster when a wall burst, sending a large influx of water into Grantham. Mr Jones then recounts the opening statement of the Wagners' legal representative to the effect that the quarry did not cause or materially contribute to the flooding in Grantham, which was inevitable based on the magnitude of the flooding. Mr Jones' tone in saying these words is to be contrasted with how he delivers the content of the opening statements of the legal representatives for the victims.
[419] Mr Jones continues:
"... inevitable that 12 people would be killed. There have been floods of that kind in Grantham before, no one died. But here was this wall, massive wall - it shouldn't have been built - illegal. The water, water, building up, billions of litres of water, the wall cracks goes whoosh, bang, nowhere to go, heads towards the railway line, nowhere to go, but the wall, the water wouldn't have been near the railway line if it hadn't been banked up behind the quarry wall.
We've had similar floods in Grantham, of the same dimension, no one lost their life. But of course, the defence that the wall didn't contribute to the flooding reminded me of Mandy Rice-Davies, way back in the 60s, in the famous Profumo affair, when she said oh Profumo, well he would say that, wouldn't he. And they would say that."
[420] The words spoken by Mr Jones create the impression that the leaked hydrology report cannot be believed, and that the true cause of the Grantham Flood event is as described by the legal representatives for the victims.
[421] As to imputation (a), Mr Jones refers to a "massive wall - it shouldn't have been built - illegal" in the context of having summarised the submission of the Wagners' legal representatives that the quarry had no material impact on the flooding. An ordinary reasonable listener would infer that the Wagners were responsible for the construction of the illegal wall, the collapse of which caused "billions of litres of water" to flood Grantham. Such an impression is reinforced by Mr Jones' reference to Mandy RiceDavies, conveying to the ordinary reasonable listener that of course the Wagners would say that the quarry did not contribute to the flooding. I therefore find that imputation (a) is conveyed rather than the alternative imputation (aa).
[422] I do not accept, however, that imputation (b) is conveyed. Although Mr Jones invites the ordinary reasonable listener to be sceptical of the Wagners' position that the quarry had no material impact on the flooding, this would not convey that each of the plaintiffs had sought to mislead the Grantham Floods Inquiry by instructing his lawyer to assert this position. The ordinary reasonable listener in the course of this broadcast is also informed that there is a hydrology report which has been leaked which is to the same effect. Mr Jones does not identify whether the leaked hydrology report has been commissioned by the Grantham Floods Inquiry itself, or by another.
[423] I therefore determine that the Thirty-Third Matter conveyed that each of the first, second, third and fourth plaintiffs caused the lethal Grantham flood by constructing a massive, illegally built wall at his quarry which burst, sending billions of litres of water into Grantham.
[424] 2GB and Mr Jones admit that, if conveyed, imputation (a) is defamatory of each of the plaintiffs.
[425] The Thirty-Fourth Matter was broadcast on radio 2GB on 20 August 2015 commencing at approximately 7.42 am. Attachment 34 to these Reasons is a transcript of the words spoken by Mr Jones.
[426] It is in issue whether the Thirty-Fourth Matter is of and concerning the plaintiffs. The primary topic of the broadcast is the hydrology report and evidence given by Dr John Macintosh to the Grantham Floods Inquiry, which Mr Jones states "[c]leared the Wagner quarry of all responsibility for creating or exacerbating the devastating four to six metre surge, which killed 12 people". Mr Jones continues, "Like all things, if you're not careful, you put in a levee bank to solve one problem, and you can cause another". The plaintiffs submit that the use of the pronoun "you" in context can only be a reference to a person or persons who "put in a levee bank". Coupled with the references to the plaintiffs' surname, the ordinary reasonable listener of the Thirty-Fourth Matter might think that the person or persons being referred to were the plaintiffs. I accept this submission, and for reasons given in [47] to [50] above I find that the Thirty-Fourth Matter is of and concerning each of the plaintiffs.
[427] It is also in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
- (a) illegally constructed a massive levee bank at his quarry; and
- (b) caused the deaths of 12 people in the Grantham flood, by constructing an illegal, massive levee bank at his quarry that created or exacerbated a devastating and fatal four to six metre surge of floodwater.[211]
[428] Imputation (a) is conveyed to the ordinary reasonable listener by Mr Jones' use of the words:
- "Well, Dr Macintosh's has had to spend three days in the witness box, at the Grantham inquiry, answering questions about his report. And if nothing else, the questioning has clearly established the danger of building levee banks beside a quarry pit."
- "Remember, Queensland's Water Resources Commission, gave permission for the construction of the quarry in 1989, on the condition that quote over-burden was quote not stockpiled so as to form a levee bank. It was stockpiled. That was illegal. Unarguable."
[432] Of the 32 matters complained of, I have determined 76 of the pleaded imputations are conveyed.[212]
[433] I have determined that a further four imputations not substantially different from the plaintiffs' pleaded meanings were also conveyed.[213] In total, 80 imputations are conveyed. Attachment 35 to these Reasons is a list of the imputations conveyed by the relevant matters complained of.
[434] As to the Eleventh Matter, imputation (c) is conveyed only by 2GB and Mr Jones, and in the result the plaintiffs' claim against Mr Cater is dismissed.[214]
[435] Of the imputations that I have determined arise, the defendants do not seek to defend the following imputations:
- In respect of the Fifth Matter, that each of the first, second, third and fourth plaintiffs:
- (a) knowing that his culpability for the deaths of people in the Grantham flood disaster had been covered up, tried to persuade the Premier that allegations about a cover-up were a conspiracy theory; and
- (b) knowing that his culpability for the deaths of people in the Grantham flood disaster had been covered up, persuaded the Premier that she should put her own self-interest ahead of assisting the truth to come out, and refuse to appear before a Senate inquiry into the disaster.[215]
- In respect of the Sixth Matter, that each of the first, second, third and fourth plaintiffs was a corrupt businessman in that he was able to build an airport in breach of all laws by reason of his connections with the Premier, Campbell Newman, and other officials in local government and state government.[216]
- In respect of the Fifteenth Matter, that each of the first, second, third and fourth plaintiffs conspired with the Deputy Prime Minister, Warren Truss, and a prominent member of the government, Barnaby Joyce, to cover up his culpability for the deaths of people in the Grantham flood disaster.[217]
- In respect of the Sixteenth Matter, that the second plaintiff conspired with the Deputy Prime Minister of Australia, Warren Truss, and a prominent member of the government, Barnaby Joyce, to cover up his culpability for the deaths of people in the Grantham flood disaster.
Defence of substantial truth or justification - section 25 of the Act
[437] The parties, for the purposes of addressing the truth defence, have classified the imputations with the same sting into five categories:
Category 1: the plaintiffs 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 plaintiffs engaged in conduct designed to cover up the role played by them (and the quarry) in the flood event;
Category 3: the plaintiffs were involved in bullying and intimidation;
Category 4: the plaintiffs constructed and operated the Wellcamp Airport in breach of all the rules;
Category 5: the plaintiffs are self-interested and greedy.
[438] It is convenient to deal with the truth defence by reference to these five categories.
[439] Section 25 of the Act provides that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. The term "substantially true" is defined, pursuant to s 4, in Schedule 5 of the Act to mean true in substance or not materially different from the truth. At common law the defence depends upon the substantial truth of the defamatory meaning conveyed by a libel.
[440] To succeed in a plea of truth, the defendant must prove that the imputations are true in substance or not materially different from the truth. What must be proved to be true is every material part of the imputation relied upon by the plaintiffs; errors in detail are tolerated.[223]
[441] It is for the defendants to prove that the defamatory imputations conveyed by the matter complained of are substantially true.
Category 1 - the plaintiffs' responsibility for the role played by the quarry in the Grantham Flood event
[442] In accordance with my determination as to which imputations were conveyed, the relevant imputations which fall within Category 1 which the defendants seek to justify are: 18(a), 31(a), 34(a), 37(a), 37(b), 37(d), 40(b), 40(d), 43(c), 43(d), 52(a), 68, 80(b), 86(b), 91(c), 95B(a), 105(a), 108(a), 111(a) and 111(b).
[443] The defendants plead that these imputations are substantially true for the following reasons, in accordance with the true facts set out in Attachment A to the defence:
- (1) the plaintiffs caused the loss of lives in Grantham because:
- (a) they constructed the levee without approval and in breach of the 1981 planning approval, during their ownership and operation of the quarry (through Wagner Investments Pty Ltd);
- (b) the levee collapsed during the course of the flood event that occurred on 10 January 2011, leading to a significant surge in the downstream floodwaters, and, in consequence, the loss of lives in Grantham;
- (c) had the levee not been constructed, there would not have been the surge in the floodwaters that resulted in the loss of lives.[224]
[444] Paragraph 1 of Attachment A to the defence pleads the true facts relevant to the defendants' allegations that the plaintiffs were responsible for a surge of floodwater that killed 12 people in Grantham. These true facts outline the plaintiffs' ownership and operation of the Grantham quarry and the creation of a levee. The crucial true fact pleaded is paragraph 1(h):
"[D]uring the course of the major rain event that occurred on 10 January 2011 floodwater moving downstream in Lockyer Creek that had breached the natural bank of the creek at the point where it forms a horseshoe around the Quarry, was restricted by the levee from flowing around, into or through the Quarry and was backed up behind the levee until such time as, owing to its inability to withstand the weight and force of the water so built up, at or about 4.00 pm, the levee suffered rapid breach in around two to four places along its length, releasing a torrent of water downstream towards the township of Grantham, causing a surge in the height (of between approximately one and two metres), mass and velocity of the existing floodwaters, resulting in the rapid destruction or inundation of objects in its path that would not have occurred but for the existence of and then breach of the levee, and in consequence the deaths of 12 people who were trapped in, or washed from homes or vehicles or were otherwise caught in the path of the surge or during their attempts to escape from it."
[445] The plaintiffs deny that the collapse or breach of the levee (which I will refer to as the bund)[225] caused a surge in floodwaters, and in consequence the loss of lives. This is primarily because the water that engulfed the town of Grantham on 10 January 2011 would have occurred regardless of the existence of the quarry or the bund by reason of the sheer magnitude of the water which fell on that day.[226] The plaintiffs further deny that the bund was constructed without approval and in breach of the 1981 planning approval. Based on their primary position, however, the plaintiffs submit that whether the bund was built with or without approval is irrelevant.[227] I accept this submission. The defendants, in seeking to justify the Category 1 imputations, must establish the substantial truth of the crucial true facts set out in [444] above.
[446] The defendants seek to establish the substantial truth of the allegation that the plaintiffs bore some responsibility for the deaths of 12 people at Grantham on 10 January 2011 by the evidence of three experts and a number of eyewitnesses. The expert witness called by the plaintiffs is Dr Newton (a hydrologist).
[447] It is trite, but worth stating, that in light of there having been two commissions of inquiry concerning the Grantham Flood event, the substantial truth of the Category 1 imputations can only be determined by a consideration of the evidence before this Court. The findings of the Queensland Floods Inquiry and the Grantham Floods Inquiry are irrelevant in determining whether the defendants have proved that the Category 1 imputations are substantially true. The findings of these two Inquiries do not inform my consideration of the expert and eyewitness evidence presented at trial.
[448] The defendants called three experts:
- Dr Graeme Smart, who has qualifications in both engineering and hydrology;
- Dr Jerry Maroulis, a fluvial geomorphologist; and
- Mr Gerard Dam, a numerical modeller and civil engineer.
[449] Dr Smart and Dr Maroulis contributed to a joint report with Dr Newton.[228] Dr Newton also produced a separate hydrology expert report dated 16 March 2018.[229] Neither Dr Smart nor Dr Maroulis produced individual reports.
[450] Mr Dam has authored three reports in which he modelled certain scenarios. Mr Dam's results are referred to and relied on by Dr Smart in the Joint Expert Report. The plaintiffs object to the tender of Mr Dam's three reports primarily on the basis that as an expert he has failed to comply with the requirements of rule 428 of the Uniform Civil Procedure Rules 1999 (Qld). This rule outlines the requirements for an expert's report. As Mr Dam was to give his evidence by video link from Norway, and so as not to delay the trial, the parties agreed that the question of the admissibility of Mr Dam's reports would be addressed in final submissions. Mr Dam's three reports were therefore marked for identification only.[230]
[451] All four experts gave oral evidence.
[452] The parties could not initially agree about the issues to which expert opinion was to be directed. This necessitated a written judgment from Applegarth J, resulting in a direction that the parties were to confer to better formulate the issues to which expert opinion was to be directed and the assumptions upon which the expert opinion was to be based.[231]
[453] On 2 November 2017, an order was made requiring the hydrology experts engaged by the parties to deliver a joint report, identifying areas of agreement and disagreement and setting out in detail the reasons for any disagreement. The two primary issues addressed by the experts are:
"Grantham was affected by an exceptionally large and fast-rising flood. The effects of this extreme flood were similar upstream of the quarry, where the quarry could not have had any impact. Property damage and eyewitness descriptions at upstream locations were similar to those of Grantham residents."[237]
[457] Dr Smart is a hydrologist who undertook his doctorate in hydrology. He has considerable experience in post-disaster surveys and hydrodynamics. His expertise is in flood hazards and the aftermath of cyclones and weather bombs.[238] He also has experience in modelling. Dr Smart was on the ground in Grantham within a few weeks of the flood event with a group of investigators from Geoscience Australia. He surveyed areas of destruction and saw first-hand the damage that had occurred, before the public had been allowed to return. At the time of this first inspection he was not aware of the existence of the quarry. His initial reaction to the damage he observed at Grantham was "what on earth has hit these buildings".[239] Dr Smart was perplexed by the severe damage in the middle of an open floodplain.[240] The damage which Dr Smart observed was, in his view, similar to the tsunami damage he had inspected in American Samoa in 2009.
[458] In the Joint Expert Report Dr Smart commences his analysis with a general explanation of the typical characteristics of a surge and the main hazards associated with surges. For a typical surge (such as a tsunami) the water level starts rising, then rises very rapidly, then the rate of rise tails off as the peak depth is reached.[241] A surge is to be distinguished from the natural rise and fall of a flood peak. A flood peak travels downstream at a different rate from water velocity. Its speed can be calculated by comparing hydrographs at different locations down a flood course. One of the hazards of a surge is the rapid rate of rise in water depth when the surge arrives.[242] Dr Smart identifies this as an important consideration because the velocity of surge waves is not shown by the water velocity indicated in the numerical simulation model results for Grantham.[243]
[459] Although Dr Smart has the necessary expertise to model the Grantham Flood event, he has not attempted to do so. He does, however, criticise the modelling undertaken by Dr Newton.[244] The basis of this criticism is that the results of the modelling undertaken by Dr Newton will differ from reality depending on the inputs, which may reflect a bias to achieve a desired output. According to Dr Smart, implicit in numerical flood model results are assumptions related to the type of model, the way the model solves its equations, the resolution (or grid size) of the model, the model boundary inflows, outflows and levels, the treatment of roughness in the model code, the mapping of roughness over the model domain, changes in roughness during the passage of a flood, representation of topography in the model, changes in topography during the passage of a flood, calibration of the model, and finally the way in which model results are reported and interpreted. Such bias includes how a model is calibrated:
"Calibration entails 'twiddling knobs' to achieve a desired output, i.e. the model parameters are adjusted so that the model results match measured results. Following calibration, a model should either be verified with data that were not used in the calibration or subject to sensitivity analysis that identifies the resulting effects of potential errors in the calibration data. The main calibration parameter, called 'roughness', represents resistance to flow. Dense vegetation has high roughness, sealed roads have low roughness."[247]
[460] The numerical modelling by Mr Dam is relied on by Dr Smart for a very limited purpose, which he explains as follows:
"As part of this investigation I requested external numerical modelling from Dam Engineering in Norway to investigate the processes and flows which could have occurred in Grantham on January 10, 2011 ... These new simulations are to show what modelling will predict when different assumptions are made from those made by Dr Newton. Unlike Dr Newton's model, the new model is not 'calibrated' to exactly match measurements at locations of post-flood water marks. This is to prevent any bias of results from a manual fitting process to achieve a desired result. Instead, Dam Engineering investigated three scenarios:
[461] Dr Smart identifies the flood size and the flood rate of rise as important factors in addressing the first issue as to whether the breach of the bund caused a devastating surge. According to Dr Smart, establishing the size of the Grantham Flood event is very important because "[t]he larger the flood the more severe the expected effects. If the losses in Grantham were caused by a combination of flood size and effects of bund breaching at the quarry, overestimation of the flood size will lead to effects of quarry bund breaching being underestimated."[249]
[462] The Queensland Department of Natural Resources and Mines (DNRM) rating by reference to the Helidon gauging station indicates that at the peak, the flow of the flood was 3,640m3/s with a velocity of 4.1m/s. This was adjusted by Dr Newton for reasons which I outline below to 4,300m3/s and remodelled to produce a new Helidon inflow peak of 4,600m3/s. Dr Smart criticises this adjustment: "... this type of calibration will be incorrect if the observed Grantham peak water levels were caused by transitory surges that were not reproduced in Dr Newton's model or if the model dynamic water levels were compared with static water level measurements".[250]
[463] ,As to the flood rate of rise factor, Dr Smart opines that this factor has been neglected in the Grantham investigations to date.[251] By reference to contemporaneous photographs of the flood rise at a shed on Ray Hauser's property on Lockyer Creek Road and further photographs at Kapernicks Bridge (both of which are upstream of the quarry), Dr Smart opines that no significant surges are evident in these photographs.[252] This is to be contrasted, according to Dr Smart, with the rates of rise downstream of the quarry.
[464] It is evident from a discussion of Dr Smart's evidence to this point, that neither his explanation concerning the nature and hazards of surges, nor his criticisms of the modelling undertaken by Dr Newton, establish that the breach of the bund caused a surge of floodwaters that resulted in the deaths of 12 people. In the absence of any attempt to actually model the Grantham Flood event, Dr Smart seeks to establish this crucial causal link from a combination of his own experience from inspecting and investigating the aftermath of flood disasters and tsunami damage together with accounts from eyewitnesses and photographic and video evidence.
"In light of the physical evidence and eye witness interviews, I have concluded that rapid surges and waves did occur in Grantham and compounded the severity of the losses."[261]
[467] Dr Smart further explains his conclusions as follows:
"... floodwaters filled the quarry pit to above its spill level prior to the breach. Following the bund collapse [Dam Engineering] modelling shows a discharge of up to 4500 tons of water per second (assuming simultaneous breaching) was released into the quarry pit ... The surge front crossed existing floodwater in the quarry pit in under half a minute.
Sequential bund failure or surge reflection and refraction within the pit may have caused multiple surges across the pit.
The surge(s) exited the quarry pit into the Lockyer Creek at the southern end of the pit and crossed over Lockyer Creek water on the East side of the quarry. This surge direction was focussed by low sections in eastern quarry embankments and the surge perpendicularly crossed existing floodwater in the creek.
The surge(s) travelled down Lockyer Creek and down the floodplain to Grantham."[262]
[468] In the course of Dr Smart giving oral evidence, I formed the view that his conclusions were not supported by his analysis of the matters upon which he relied. These matters do not, in my view, establish that there was a surge. Even if some of the matters identified by Dr Smart are generally supportive of there having been a surge, his analysis of these matters falls well short of establishing the crucial causal link that the surge emanated from the quarry when the bund collapsed. This is in circumstances where the 2011 Lockyer Creek flooding was an exceptional event. As explained by Dr Newton:
"A comparison of the historical event hydrographs show that the January 2011 flood was an exceptional event. The peak flood level at Helidon was about 5 metres higher than any other historical flood since 1974 and the rate of rise was at least four times faster."[263]
[469] In the absence of any actual modelling of the Grantham Flood event, in order to support his ultimate conclusion it was incumbent upon Dr Smart not only to identify reliable evidence of a surge but a surge which emanated from the quarry. He has failed to do so.
[470] This failure on Dr Smart's part is best illustrated by reference to a video produced by him entitled "Explanation of Surges" which is Attachment 11 to the Joint Expert Report.[264] At approximately three minutes 58 seconds into the video there is a section entitled "spent surge caught on camera in Grantham". This video is part of a longer video taken by one eyewitness, Lance Richardson. The whole of Mr Richardson's video is part of Exhibit 14, which is a USB of interactive photographs and videos. The item is 13.3-6 and the relevant video of Mr Richardson commences at 4.14 pm.
[471] Dr Smart's video "Explanation of Surges" is not a representation of Grantham but rather a representation of the phenomenon of surges.[265] The video, for example, contains footage of a tsunami surge in Japan. In his evidence-in-chief Dr Smart stated:
"And we can see then some evidence of this type of wave in film in Grantham in a minute. So this footage was now taken by Lance Richardson from near the Grantham Hotel. ... And now I have slowed that down and taken stills from the video footage which shows these types of waves indicative of a surge pointed to by the arrows, and you'll notice the waves are on both sides going right across the image. ... This isn't a gradually rising flood that you would see in typical flooding situations where a river spills out of its channel and gradually rises across the floodplains. This is a surge phenomenon. Surge behaviour, and here again, we can see the crests of those wave[s], just like we saw in the channel in Japan."[266]
[472] The video shows floodwaters hitting a shipping container. The video shows three red arrows which, according to Dr Smart, identify three waves. In cross-examination Dr Smart accepted that when he first looked at Mr Richardson's video, it simply showed what happens when a surge of water hits a solid object such as a shipping container:
"MR BLACKBURN: That's just a bow wave; isn't it. It's what happens when a surge of water hits against a solid object. You get a - we've all seen that. You get a wave - don't you - coming up, where it hits?
DR SMART: That's what I first thought when I looked at this picture, and when I looked at it more closely, I realised that that wave that you are showing which has a small white crest where it's breaking against the container ... That wave extends right to the left of the container and is still a wave, where it is not being influenced by the container, as are the upstream waves which are nowhere near the container."[267]
[473] The tenuous nature of Dr Smart's evidence in this respect is demonstrated by his acceptance that one of the red arrows, to an untrained eye, does not point to any wave at all.[268]
[474] In viewing the video, I have great difficulty identifying the three waves which, according to Dr Smart, are "representative of surge of which a tsunami is an example".[269] Ultimately in cross-examination, Dr Smart's position was that the video showed evidence of a surge but not evidence of where that surge came from.[270] I do not accept that this video and the three waves identified by Dr Smart constitute evidence of a surge at all. When Mr Richardson's video is watched in full, it is apparent that if there was a surge it had to go past the Grantham Hotel. The hotel is shown in the video. Dr Smart accepted, however, that the hotel, as depicted in the video, showed no evidence of a destructive surge having passed it.[271]
[475] Dr Smart's video "Explanation of Surges" is of no assistance to the Court. I do not accept that the extract from Mr Richardson's video reproduced in Dr Smart's video constitutes reliable evidence of the existence of a surge, let alone one which emanated from the quarry.
[476] Reluctantly, I am of the view that Dr Smart, in relying on this matter and other matters which I deal with below, adopted the role of being an advocate for the defendants. There were a number of videos taken by eyewitnesses which were tendered into evidence. These include videos taken by Anthony McIntosh, Francis King, Ian Pinkerton, Lance Richardson, Martin Warburton, and Luke Owens, as well as helicopter video footage taken by Channel 9 and Channel 10. Apart from the last section of Mr Richardson's 4.14 pm video, Dr Smart does not rely on any other video evidence as demonstrating a surge.[272]
[477] Dr Smart acknowledged that there were eyewitnesses who did not report any observation of a "wall of water" or a "wave" or a "tsunami".[273] He sought to explain this by suggesting these witnesses would either have been on the "periphery of the surge" or the surge at that time was not "a breaking wave". This is nothing but supposition on Dr Smart's part seeking to explain evidence which does not support the existence of a surge.
"MR BLACKBURN: Before you made that statement, where is your - you didn't investigate the hydraulic conditions of any of those upstream properties, did you?
DR SMART: Not in fine detail, but I have a very good understanding of hydraulic principles and how the slope and the gradient increase the shear stress and the drag forces and the velocities.
MR BLACKBURN: Did you estimate the flowrate of water going past those properties?
MR BLACKBURN: Did you measure the floodplain width where those properties were?
DR SMART: I looked at the channels. I didn't scale off.
MR BLACKBURN: Did you do any hydrological calculations at all?
DR SMART: No I didn't. No, I didn't."[279]
[479] Another matter relied on by Dr Smart to support the existence of a surge are the logged phone calls made by Mr Bruce Marshall from 1420 Gatton Helidon Road. Mr Marshall perished in the Grantham Flood event. Dr Smart in the Joint Expert Report states:
"At 4:11 pm a phone call indicates that the flood waters were waist deep in the house (at 120.36m AHD). At 4:12:50 Mr Marshall again reported the water was up to his waist and he had about three feet to the roof. For Mr Marshall's eyes to be 3' (0.91m) from the ceiling Mr Marshall must have stood on his 0.45m high bed. His waist-high water level would have been at 120.81m AHD. The surveyed high-water mark in his house was 120.83m AHD. At 4:18 pm he again called 000 and said the water was up to his shoulders. At this time, either the water level rose above the surveyed flood level or Mr Marshall was back standing on the floor. The indicated rates of rise are 0.7m from 4:09 pm to just before 4:10 pm, then 1.1m until 4:11 pm and 0.45m from 4:11 pm to 4:12:50. The surge rose 2.25m from ground level to 120.81 mAHD in under 4 minutes. The maximum rate of rise was over 1m per minute inside the house and would have been considerably faster on the outside of the house depending on the degree to which the house was 'watertight'."[280]
[480] In cross-examination Dr Smart accepted that he had assumed the height of the bedroom at 3.05 metres based on what he had been told by Mr Marshall's son.[281] Dr Smart's assumption that Mr Marshall at one stage climbed onto his bed and then off his bed is not based on anything said by Mr Marshall in the course of the 000 calls. These actions on the part of Mr Marshall are simply an assumption made by Dr Smart. Dr Newton in the Joint Expert Report does not accept that there was a rate of flood level rise of 1.0m or more per minute at the location of Mr Marshall's house. Dr Newton estimates that the increase in water level from waist to shoulder height (approximately 0.5m) between 4:12:50 and 4:18:48 pm (approximately six minutes) indicates a rate of rise of less than 0.1m per minute.[282] While Dr Smart does not accept Dr Newton's analysis, he did concede in cross-examination that he no longer relied on the passage from [167] of the Joint Expert Report which I have quoted above.[283] Dr Smart therefore abandoned any reliance on the assumptions he had made as to Mr Marshall being on and off his bed. The evidence in relation to this matter is so equivocal that it cannot be relied on as evidence of a surge, let alone a surge emanating from the quarry.
[481] Dr Smart in the Joint Expert Report also refers to the 000 phone logs for Helen and Graham Besley.[284] Dr Smart states:
"According to 000 phone logs, at 3.59 pm a 'wave of water' overtopped Helen and Graham Besley's Ford Fairlane car which was near the quarry access road, just across the creek on the East side of the quarry, and they escaped out the car windows. The technical term for what they experienced is a surge. As explained in section A.1 para 82, a surge would cross the quarry pit in less than half a minute. This suggests that a bund collapse occurred around 3.58 3.59 pm."
[482] The relevant phone log and transcript of the call made by the Besleys contain no reference to the Besleys being hit by a "wave of water".[285] The 000 call commences at 15:46:27 and contact is lost 12 minutes and 40 seconds later. In cross-examination Dr Smart accepted that there was nothing in the phone logs that at 3.59 pm a wave of water overtopped the Besleys' Ford Fairlane and they escaped out the car windows. He accepted that the Besleys had escaped out of the car windows well before 3.59 pm.[286] Dr Smart accepted that he was in error in suggesting that the Besleys had escaped their car through the windows after 3.59 pm.
[483] The log of the 000 call by the Besleys does not, in my view, support Dr Smart's opinion that this is evidence of a surge. To the contrary, as stated by Dr Newton:
"This telephone call, which lasted more than 12 minutes, indicates a progressive rise in water level from 'up to the doors' to the car being 'completely under' (a rise of perhaps 1m) in about 12 minutes."[287]
[484] Having been confronted with this error in cross-examination Dr Smart resorted to suggesting that his reference to a "wave of water" was based on additional information from the witness statements given by Mr and Mrs Besley. There are two difficulties with Dr Smart relying on these statements. The first is that at [368] of the Joint Expert Report, Dr Smart only makes reference to the 000 phone logs and not to any statements made by the Besleys as to there being a "wave of water". In explaining why he has not referred to all relevant witness statements in the Joint Expert Report, Dr Smart stated:
"DR SMART: ... There's so many consistent reports from the eyewitnesses that - they can't all be wrong. It can't be a grand conspiracy to use different terminology and different phraseology to describe surge behaviour.
MR ANDERSON: But is that information - so when we talk about many witnesses - are you limiting your view to one that's informed by on that information referred to in the joint expert report?
DR SMART: It's the big picture of all the witnesses, each contributing. Certain witnesses give more valid information, but it all - like I said, they're pieces of the jigsaw. They - taken cumulatively, it's very convincing evidence to me.
MR ANDERSON: ... to the extent that you've relied on any of those witness statements for the purposes of answering the questions that were posed, have you identified in the body of the joint report how and why you rely on those particular statements of those witnesses?
DR SMART: In some cases, I have, in the body of the report. In other cases, it is self-evident from the statements, as to what they are describing. I haven't, in the body of the report, listed the implications of each witness as to what that means, because it's very clear, I hope, to everyone from the words that they use, that they are describing surge type, rapidly rising floods."[288]
[485] This evidence of Dr Smart is concerning in a number of respects. First, to the extent he relies on eyewitness statements to inform his opinion, he has not uniformly revealed this in the Joint Expert Report. Second, to the extent he has relied on eyewitness accounts without identifying this in the Joint Expert Report, the Court cannot ascertain whether the relevant eyewitness has been called to testify at trial. Third, Dr Smart's approach, as explained by him in evidence, means that his reasoning in arriving at his opinion has not been exposed.
[486] This brings me to the second difficulty in Dr Smart relying on the witness statements of Mr and Mrs Besley. Neither was called as a witness at trial. Although their statements are found in the trial bundle,[289] the plaintiffs object to their hearsay statements being admitted. I uphold this objection. The result is that to the extent Dr Smart has relied on the hearsay statements of Mr and Mrs Besley to support his opinion as to the existence of a surge, the factual basis for that opinion has not been established. The result is that his opinion expressed at [368] of the Joint Expert Report is neither admissible nor of any weight.
[487] Dr Smart, in seeking to support his surge scenario also relied on the gravel ballast at the railway, as well as internal damage done to walls and doors. The plaintiffs make what is, in my view, a valid criticism of Dr Smart in relying upon such evidence:
"Drs Smart and Maroulis fail to provide real-world data from documented hydrological surges in other times and places to support their hypothesis that there was a hydrological surge (or surges - it is not clear which) in Grantham because there was a 'much quicker rise in water depth'. Nor do they provide real-world data about the rate of rise of flood waters in other times and places (being occasions not involving a hydrological surge and comparable to the flood event in the Lockyer Valley on 10 January 2011) with which to test this hypothesis."[290]
[488] The validity of this criticism is borne out by a consideration of Dr Smart's reliance on, for example, the collapse of internal walls. Figure GS-13 is a photograph taken by Dr Smart in 2011 which shows damage to a house on Railway Street, Grantham.[291] By reference to this photograph Dr Smart states:
"Further evidence of a surge is shown in Figure GS-13. The damage evident here is unusual in that multiple internal wall elements of the house have failed while external walls remain essentially intact."[292]
[489] In cross-examination Dr Smart accepted that damage to internal walls of a house depends on how strong the internal walls are.[293] Dr Smart gave the following evidence:
"MR BLACKBURN: And you can't say, I suggest to you, that the fact that two internal walls have collapsed inside a stud wall house is evidence of a surge?
DR SMART: Many more than two walls collapsed inside the house.
MR BLACKBURN: But it's not evidence of a surge, is it?
DR SMART: It is. It is. When I walked into that house I thought to myself. 'What the hell has hit this house?' It was reminiscent of damage I had seen from tsunamis in the Pacific tsunami postdisaster inspections I did, and I was astounded at the damage inside this house.
MR BLACKBURN: I think you've only been involved with one tsunami, haven't you, and that was the one on the island of Samoa?
DR SMART: I've been involved in the Javanese tsunami. I wasn't personally there, but my team were there, and I went through photographs that they'd taken. ... In the Pacific tsunami, I visited dozens of site where is the tsunami waves impacted different types of infrastructure, different types of topography.
MR BLACKBURN: I think your evidence was that you've only actually attended the site of one tsunami?
DR SMART: Yes. One - yes, that's correct."[294]
[490] The Court, in assessing Dr Smart's evidence in this respect, does not have the benefit of any analysis by him of the type of structures that were damaged from the tsunami site which he inspected in American Samoa. Nor is there any comparative photographic or hydrological evidence which exposes Dr Smart's reasoning.
[491] Dr Newton does not agree with Dr Smart that a surge from the quarry can be inferred from observations of flood damage:
"The damage in Grantham was extensive, but was consistent with damage at locations upstream of Helidon where the quarry could not have had any effect. ... Extreme structural damage often occurs during a flood. ... Extreme structural damage indicates that flood depth and velocity were large enough to displace structures. It does not provide evidence of a surge."[295]
[492] Figure DN-3[296] is a photograph which shows damage to internal walls at a property at Murphy's Creek which is upstream of the quarry. It is difficult in comparing Figure DN3 with Figure GS-13 to identify any significantly different type of damage.
[493] Similar criticisms can be made of Dr Smart's reliance on the distance that gravel ballast from the railway line had been carried north by the overflowing water.[297] Dr Smart accepted in cross-examination that the spread of the ballast in the course of a flood would depend on a number of factors, including the velocity of the water, the direction of the flow relative to the railway line, the size and distribution of the ballast and the depth of overtopping.[298] He also accepted that there can be locally higher velocities where, for example, the flow is constricted by railway sleepers.[299] The unreliability of this evidence as supporting a surge is highlighted by Dr Newton: "Washing of ballast from railway lines commonly occurs during flood events and does not necessarily indicate a hydraulic surge."[300] Figure DN6[301] is a photograph of damage to railway ballast by flooding which was not associated with a surge.
[494] I do not accept that the matters identified by Dr Smart constitute reliable evidence of a devastating surge.
[495] Nor does Dr Smart present any cogent analysis that would permit the Court to find that had there been a surge, it was caused by the collapse of the bund wall at the quarry. In seeking to address this central question Dr Smart's reasoning is surprisingly brief and unpersuasive.[302] Dr Smart refers to the Insurance Council of Australia Hydrology Panel study of the January 10, 2011 flooding. He accepted in cross-examination that this was a "quick and very high-level study ... [which] didn't analyse in any detail the position in Grantham and the quarry".[303] Nevertheless, Dr Smart concludes:
"As a severe surge was not detected upstream of the quarry and given the quarry bund collapse mechanism that I later describe in section B.4, I conclude that the severe surge(s) in Grantham resulted from the collapse of the man-made bund at the Grantham quarry."[304]
[496] This constitutes, in my view, an over-simplistic approach by an expert to what is a complex hydrological issue arising, as it does, in the context of a wider severe flood event. The underlying premise that a severe surge "was not detected upstream" is not supported by contemporaneous evidence showing rapidly rising floodwaters upstream of the quarry. In particular, a series of photographs taken by Carol Hauser over a 22 minute period from approximately 3.16 pm to 3.38 pm on 10 January 2011 shows the progressive inundation of a green shed and illustrates the rapid rise of floodwater in Lockyer Creek.[305] Although Dr Smart was critical of Dr Newton's modelling, he was willing to assume that the model simulated with precision the inundation of the Hausers' property.[306]
[497] As to Dr Smart's reliance on the "bund failure mechanism" described by him in section B.4, this too is misplaced. Section B.4 only deals with the process by which the bund breached and the time it took for the breach to occur. Dr Smart's analysis in section B.4 does not establish any causal link between the collapse of the bund and the devastation in Grantham.
[498] In the absence of a reliable model, I accept the plaintiffs' submission that the evidence is insufficient to establish any causal link between a devastating surge and the collapse of the bund.[307]
[499] Dr Maroulis is a fluvial geomorphologist. He studies rivers and the flow of water through nature. His area includes studies of the deposit of sediment and erosion.[308]
[500] Dr Maroulis' evidence was relatively confined. From an examination of sediment he was able to determine that ponding of floodwaters had occurred at the western bank of the quarry. According to Dr Maroulis, the bund at the quarry constrained the passage of the floodwaters, resulting in a large volume of floodwater being ponded upstream of the bund and across the northern floodplain between Kapernick's Bridge and the bund. This is demonstrated in Figure JM-01.[309]
[501] Dr Maroulis also addressed the timing and the formation of the breaches in the bund.[310] The rate at which the bund breached was ultimately a matter of agreement between the experts. Dr Newton, in his flood modelling, for example, proceeded on the assumption that the breaching of the bund along the entire 260 metre length occurred in only five seconds. While he considered it extremely unlikely that the entire length of the bund could fail in such a short amount of time, this assumption constituted a worse case assessment of potential impacts.[311]
[502] In spite of the limited nature of Dr Maroulis' analysis, he expressed two conclusions in the Joint Expert Report:[312]
"... the breaching of the bank and the resulting surge of water significantly contributed to the flooding and the resulting deaths and property damage in Grantham. There was a considerable body of water that was backed up behind the bund which was rapidly and violently released, resulting in a surge of water that had a material impact on the town of Grantham on Jan 10, 2011"
"It is my opinion that these floodwaters that were rapidly released through breaches in the quarry bund, represented the final and fatal blow to the township of Grantham. Grantham residents have previously experienced major floods such as in 1974 and normally result in flooding from both Sandy Creek and Lockyer Creek. However, the added unanticipated and unexpected impact of the flood surge from the quarry caught everyone by surprise and resulted in the tragedy on January 10, 2011."
[503] Based on his expertise and the limited nature of his analysis, I am unable to understand how Dr Maroulis reached these conclusions. Nowhere in the Joint Expert Report does Dr Maroulis expose his reasoning which would support these conclusions. There is, for example, no scientific analysis of water volumes, or velocities or any other exposition showing how a rapid and uniform breach of the bund caused "the final and fatal blow to the township of Grantham". I accept the plaintiffs' submission that Dr Maroulis' conclusions are outside his discipline of geomorphology.[313] When questioned, it became evident that Dr Maroulis could not support his conclusions:
HIS HONOUR: Because when I come to write this judgment, I have to have [a] fairly clear idea of this. You've expressed conclusions, both in paragraphs 191 and 243, which are in fairly precise terms as your view that it was a surge that caused what you described as the final and fatal blow to the township of Grantham?
HIS HONOUR: Which is fairly graphic language. You were asked by Mr Blackburn [what] you didn't do in terms of hydrology and modelling?
HIS HONOUR: You've taken the Court to page 71 JM18?
HIS HONOUR: For the conclusions that you reach in 191 and 243, from the text of your contribution to the joint report ... what other parts do you rely on for the purposes of those conclusions expressed in [those] two paragraphs?
DR MAROULIS: As I said, I think it's the - again, what I was limited to at the time was very much on-the-ground evidence, that it's almost looking at aerial images, video footage, whatever might be available. This is, again, an indication of what I could see was taking place, but I didn't get any additional evidence between this site and Grantham, and for that - I mean, I can make assertions about what was going on there, but I didn't have enough evidence to go by at the time."[314]
[504] Dr Maroulis' evidence does not establish any causal link between the collapse of the bund at the quarry and the deaths of 12 people at Grantham.
[505] Mr Dam produced three reports:
- First report, entitled "Effect of bund collapse on flooding in Grantham (Queensland, Australia) on the 10th of January 2011", dated 13 February 2018 (first report);
- Second report, entitled "Supplementary report: Effect of bund collapse on flooding in Grantham (Queensland, Australia) on the 10th of January 2011", dated 6 March 2018 (second report); and
- Third report, entitled "Additional investigation into the initial quarry pit level", dated 15 May 2018 (third report).
[506] The plaintiffs object to these three reports being admitted into evidence. The plaintiffs' primary basis for objecting is that the reports do not comply with rule 428 of the UCPR.
[507] Rule 428 states the requirements for an expert report:
(1) An expert's report must be addressed to the court and signed by the expert.
(2) The report must include the following information -
(b) all material facts, whether written or oral, on which the report is based;
(c) references to any literature or other material relied on by the expert to prepare the report;
(d) for any inspection, examination or experiment conducted, initiated, or relied on by the expert to prepare the report -
(ii) whether the inspection, examination or experiment was done by the expert or under the expert's supervision; and
(iii) the name and qualifications of any other person involved; and
(e) if there is a range of opinion on matters dealt with in the report, a summary of the range of opinion, and the reasons why the expert adopted a particular opinion;
(f) a summary of the conclusions reached by the expert;
(g) a statement about whether access to any readily ascertainable additional facts would assist the expert in reaching a more reliable conclusion.
(3) The expert must confirm, at the end of the report -
(a) the factual matters stated in the report are, as far as the expert knows, true; and
(b) the expert has made all enquiries considered appropriate; and
(c) the opinions stated in the report are genuinely held by the expert; and
(d) the report contains reference to all matters the expert considers significant; and
(e) the expert understands the expert's duty to the court and has complied with the duty."
[508] The requirements in rule 428 reflect an expert's overriding duty to assist the Court as stated in rule 426. Many of the requirements of rule 428 reflect matters that have been identified in previous cases, such as Makita (Australia) Pty Ltd v Sprowles.[315] An expert must explain the basis for any opinion expressed by them and explain the reasoning process deployed in arriving at the opinion.
[509] Mr Dam's first two reports do not comply with the requirements of rule 428(2)(a) or (3) in that the reports do not set out Mr Dam's qualifications, nor does he confirm at the end of the first two reports those matters required by rule 428(3). I raised this with Senior Counsel for the defendants at an early stage of the proceedings.
[510] Mr Dam's non-compliance was sought to be overcome by him confirming the terms of rule 428(3) in relation to all three reports in his third report.[316] Had this non-compliance with rule 428(3) been the only basis for objection, I would have ruled that the three reports were admissible.
[511] As I have previously observed, this case was subject to Court supervision. On 2 November 2017, five months before the commencement of the trial, orders were made which required the hydrology experts to deliver a joint report. Mr Dam did not participate in the production of Exhibit 15, the Joint Expert Report. Mr Dam's instructions for his reports were provided by Dr Smart. It is apparent from Appendix B to the first report that Mr Dam was first provided with instructions from Dr Smart on 23 December 2017. Mr Dam's third report was not provided to the plaintiffs until 15 May 2018, which was the eleventh day of the trial. A draft version of this report was provided to the plaintiffs on 10 May 2018, being the eighth day of the trial. Mr Dam's third report is only nine pages long and addresses a change to the initial quarry pit level in his model of 109m AHD. Mr Dam acknowledged that the level he had initially used in his modelling was unlikely and a level of 114m AHD is more appropriate.
"• Bund failure at a quarry upstream of Grantham on the 10th of January 2011 lead to increased water levels and velocities in Grantham.
[514] These conclusions are made by Mr Dam in circumstances where he does not seek to model the actual Grantham Flood event. In the introduction to his first report Mr Dam notes that the previous calibrated model investigations did not find a causal relationship between the bund collapse and the severity of the flooding in Grantham. He then states:
"This investigation uses a different approach to study the bund collapse and its potential effects on flood behaviour."[318]
[515] Using a numerical hydrodynamic model called FINEL2D Mr Dam modelled two simulations, one with bund failure and the other without. Appendix A to his report simply contains details about the modelling equations and features of this model.
[516] The plaintiffs submit that it is completely unclear how Mr Dam's model has in fact been used to generate his conclusions:
"... it is unknown precisely what inputs have been used by Mr Dam for his simulations. For example, Mr Dam purports to identify:
(a) the level of water at five locations in Grantham (see part 6.2), but he does not explain the basis for those water levels or any inputs he has used to derive them;
(b) a discharge into the flood plain (see part 6.3), but he does not identify the inputs which he used to derive this simulation;
(c) maximum velocities and drag (see part 6.5), but he simply makes the conclusion, without explanation, that there was an increase in bulk velocity above 0.5m/s in the western part of Grantham and 0.3m/s to 0.5m/s in the eastern part.
The closest Mr Dam seems to come to identifying any real inputs he used during his simulations is at paragraph 6.4 where he identifies that one of his simulations (that with bund failure) is close to surveyed inundation depths at Grantham. But in the context in which the statement is made, the statement is meaningless. Indeed, it is impossible to comprehend how Mr Dam has used the information he has been provided with (known and unknown) in arriving at his conclusions.
Not knowing these inputs renders Mr Dam's work meaningless. The practical consequence of this is that it is impossible for the Court to be able to arrive at an independent assessment of Mr Dam's opinions and their value. It also means that his opinions are unable to be scrutinised."[319]
[517] The defendants submit that there is an inherent difficulty when the opinions arise from a modelling exercise.[320] The difficulties with the admissibility of Mr Dam's reports, however, go well beyond this inherent difficulty.
[518] One of Mr Dam's conclusions quoted above is that, among the simulations carried out, a constricting log jam at the north-western corner of the quarry best explains the observed water levels. Mr Dam, however, at Part 7 of the first report states that many input parameters for the modelling are unknown or uncertain. This includes the issue of tree constriction:
"Video footage and eyewitness accounts show large tree trunks in the creek that would have extreme difficulty passing the sharp bends of Lockyer Creek around the quarry. A partial blockage of the flow by trees leads to higher upstream water levels and lower downstream water levels. How large such an effect is, is very difficult to determine, but for sure had an effect on the water flow around/in the quarry. None of the previous models to simulate the Grantham flood took this into account ... [T]here are not enough data available to know the correct model settings. Modelling is always a simplification of reality in which the modeller has to decide which processes are relevant.
Especially because of this incomplete list of model uncertainties it is recommended that model simulation results should be interpreted along with other evidence."
[519] Given these significant qualifications, I can find no reasoning in Mr Dam's first report as to how he arrives at his conclusion that "a constricting log jam" best explains the observed water levels. There is, for example, a complete lack of analysis as to why other inputs, such as upstream discharge or roughness, do not explain the water levels. It is not enough that some model inputs are identified in the second report. This does not cure the failure on the part of Mr Dam to expose the reasons why he has adopted a particular opinion, as is required by rule 428(2)(e). Even if Mr Dam's reports were admissible, having considered those reports and his oral evidence, I would give no weight to the opinions he expresses.
[520] The defendants make little reference either to Mr Dam's reports or his evidence in their final written submissions. This may be explained by the fact the defendants expressly do not rely upon Mr Dam to give an opinion about the role of the quarry in the cause of the deaths in Grantham.[321] This submission is surprising given that one of Mr Dam's conclusions is that "the drag (the force of the water on an object) increased severely in Grantham due to the bund failure. This means that losses would have increased significantly due to the bund failure."[322] According to the defendants, Mr Dam's role was to assist Dr Smart by modelling specific scenarios in order to demonstrate the variability and limitations of the modelling process, and to demonstrate the breach and no breach scenarios without the distraction of any calibration.[323] This suggested limited role of Mr Dam is not reflected in his conclusions.
[521] There are a number of reasons why I would ascribe no weight to Mr Dam's opinions. First, there is no eyewitness, video or photographic evidence that there was a blockage in Lockyer Creek at the quarry bend created by trees. According to Mr Dam, the only simulation which was found to sufficiently reproduce the observations of conditions prior to 4.00 pm was Simulation 3, with a blockage in the creek at the quarry bend. It was Simulation 3 that Mr Dam continued with to model the bund failure investigation. It was therefore central to his modelling to include a tree blockage in Lockyer Creek. According to Mr Dam:
"Dr Smart advised that there were very large trees carried by the rising flood just upstream of the quarry and that these trees could be expected to lodge where the creek is confined by the quarry bend."[324]
[522] In evidence-in-chief Dr Smart stated that the postflood helicopter footage indicates the flow around the quarry bend was constricted and not as rapid as one would expect.[325] He was taken to Figure DN-9 in the Joint Expert Report.[326] Dr Smart suggested that turbulence in the water surface similar to turbulence observed above the breached bund could be seen by reference to this photograph. I requested Dr Smart to mark on the photograph the turbulence which he was referring to.[327] I accept the plaintiffs' submissions that it is not possible to draw the conclusion that the turbulence identified by Dr Smart on Figure DN-9 is a blockage or restriction in the main channel.[328] The blockage marked on Figure DN-9 by Dr Smart is well beyond the right-angle bend near the quarry in Lockyer Creek. That is, the blockage marked by Dr Smart on Figure DN-9 does not coincide with the blockage employed by Mr Dam when running his model.[329]
[523] In cross-examination Dr Smart referred to Mr Dam introducing this blockage in the following terms:
"The scenario with no blockage reproduces surges and other effects, but water levels upstream at Dinner Corner and downstream in Grantham aren't the same as what was observed, and so the model scenario used to investigate the natural phenomena indicates something is happening ... that isn't well reproduced in this scenario simulation, and therefore, Dr Dam has allowed for the fact that there's some unknown phenomenon by introducing a blockage or a constriction in the creek channel, and when he does that, his model then accurately reproduces the measured water levels at Dinner Corner and better reflects the water levels downstream in Grantham."[330]
[524] While Dr Smart was the person who gave Mr Dam the original instruction that there was a "possibility" of a tree blockage, it was Mr Dam, in the absence of any evidence, who determined the size of the blockage. What Mr Dam modelled was in effect a weir blocking the entire watercourse around the bend of Lockyer Creek. Ultimately Dr Smart agreed that such a blockage was nothing more than a "possibility".[331]
[525] The existence of a blockage by trees was central to Mr Dam's observed water levels. In the absence of any evidence of such a blockage, it is concerning that Mr Dam would incorporate it into his modelling. This is particularly so, as Mr Dam has assumed a blockage of the creek channel adjacent to the bund, the precise location where the blockage would create the maximum impact because it increases the water level only upstream of the bund. This increases the difference in water level across the bund and, as Mr Dam himself noted in cross-examination, this "water level difference causes a surge that moves downstream".[332] I accept the plaintiffs' submission that there is no justification for the magnitude and location of the blockage modelled by Mr Dam.[333]
[526] A second reason why Mr Dam's opinion should be given no weight is because he employed an original quarry pit level in his model of 109m AHD. For the purposes of his third report, Dr Smart asked Mr Dam to assume an initial quarry pit level of 114m AHD. The plaintiffs submit, and I accept, that the impacts reported by Mr Dam as a result of the change from 109m AHD to 114m AHD are not representative of the true impacts because Mr Dam also changed the upstream inflows.[334] The quarry pit level is important because the water upstream of the bund must be higher than the quarry pit level, as it is that water level difference which creates a surge.[335] I had the following exchange with Mr Dam in this respect:
"HIS HONOUR: Yes, but my question is this: you don't get a surge and you certainly don't get a catastrophic surge if at the time that the bund collapsed the water levels are the same?
MR DAM: No. You would not get a surge because the water levels would be the same. Yes."[336]
[527] Dr Smart explained this in the Joint Expert Report:
"I understand that Dr Newton's modelling has the quarry pit overfull, around AHD level 126m (or 2m above the bund shear level of around 124m AHD) at the time of bund failure.
- the mechanism of bund failure along the residual shear plane is unlikely as the bund would have had to shear against the weight of 2m of water sitting above the level of the shear plane, and
- the surge resulting from sudden breach of the bund would be much smaller because the water level difference from upstream of the bund to downstream of the bund was reduced from around 4.8m to around 2.8m."[337]
[528] Both Dr Smart and Mr Dam accept that 109m AHD is unrealistic. To ensure, however, that by 4.00 pm the level reached was 124m AHD, Mr Dam had to adjust inputs other than changing the quarry pit level from 109 to 114m AHD. The difficulty I have with Mr Dam's third report is that, having altered the quarry pit level significantly by five metres, he does not re-run his model based on the original inflows from Monkey Water Holes Creek and Flagstone Creek. What Mr Dam has done is to adjust these inflows to ensure that the quarry pit level at 4.00 pm on 10 January 2011 is 124m AHD. This ensures that the model recreates a catastrophic surge when the bund collapses. The inflows are adjusted by Mr Dam not to reflect real world data, but to achieve a certain outcome.
[529] I accept the plaintiffs' submission that a pit water level of 124m AHD at 4.00 pm is an assumption that needs to be proved and the defendants have failed to do so.[338]
[530] Having determined that Mr Dam's reports are inadmissible, or alternatively of no weight, it follows that the defendants have failed to prove the substantial truth of the Category 1 imputations. This is because the defendants' experts have not established any causal link between the collapse of the bund at the quarry and the deaths of 12 people. This finding may be made even prior to a consideration of Dr Newton's evidence and the evidence of eyewitnesses. This is because Dr Newton's expert opinion is that any surge caused by breaching was not significant in terms of property damage and risk to persons. Secondly, Senior Counsel for the defendants conceded in oral submissions that the eyewitness evidence could not establish this causal link:
"HIS HONOUR: ... in terms of your truth defence, do you accept the proposition that the evidence of the eyewitnesses without interpretation by your experts is insufficient for the purposes of establishing the causal link between any collapse of the bund and the deaths of the 12 persons?
HIS HONOUR: Therefore, your case can only be established in terms of substantial truth by reference to your expert evidence - in particular, Dr Smart.
[531] Although this concession was properly made, it is appropriate that I proceed to consider the evidence of Dr Newton and the eyewitnesses.
[532] The defendants submit that, in light of the eyewitness evidence, there is much to be sceptical about the modelling undertaken by Dr Newton:
"Against that of course is the fact that eye-witnesses give consistent accounts of a devastating surge passing through the township of Grantham, a matter seemingly lost in the model analysis - how that evidence could be ignored in favour of the outcomes of a computer programme informed by uncertain inputs and parameters is a perplexing proposition."[340]
[533] This submission reveals both a misunderstanding of Dr Newton's modelling and the effect of the eyewitness evidence. The two are not inconsistent, contrary to the defendants' submissions.
[534] Dr Newton, in creating a model which seeks to recreate the Grantham Flood event, calibrates this model by reference to real world data which includes the accounts of eyewitnesses, together with contemporaneous photographs and video evidence. The accounts of eyewitnesses, however, cannot answer the question as to whether the breaching of the bund at the quarry caused a surge in floodwaters between the quarry and Grantham resulting in the deaths of 12 people. This causation issue is a matter for expert opinion involving, as it does, complex hydrological questions.
[535] Before addressing the criticisms made by Dr Smart of Dr Newton's modelling, it is first important to understand this modelling.
[536] Dr Newton was the only expert who developed a two dimensional flood model of the Grantham Flood event. Dr Newton developed this model to enable him to simulate the counterfactual scenarios and identify how key flood characteristics may have been altered had events unfolded differently. Dr Newton explains this in the following terms:
"It is not possible for anyone to witness a hypothetical alternative scenario which reflects what might have happened if events had unfolded differently. Neither is it possible for any expert, no matter how experienced, to accurately imagine an alternative scenario because of the complex interactions of processes under consideration. For this reason, the quantification of any alternative scenario must be based on a model which realistically represents the physics of fluid motion. Such models are available and widely used in practical and research applications across Australia and internationally. I have used such a model to inform my opinion on the flood impacts of the quarry."[341]
[537] The modelling software used by Dr Newton was TUFLOW HPC. This modelling software is a "well recognised two dimensional flood modelling package" which Dr Newton has used extensively and "is probably the most widely used flood modelling software in Australia at the moment".[342]
[538] Dr Newton investigated the TUFLOW model to ensure that it was capable of accurately simulating the generation and propagation of any surge generated by events at the quarry.[343]
[539] Dr Newton identified that one of the factors affecting the magnitude of any surge caused by breaching of the bund is the assumptions about when the bund breached and how long this process took. The total breached length of the bund was about 260m over a total bund length (including the sections that did not breach) of about 340m. Dr Newton adopted a worst case scenario by proceeding on the basis that there was very fast breaching of the bund along its entire breached section.
[540] The result of his flood modelling was that the breach of the bund and natural bank did not materially impact flood behaviour in Grantham. The timing of the initial inundation, the peak flood depth, the maximum velocity and the rate of floodwater rise were similar whether the bund and bank breached or not. He concluded that breaching did not materially affect property damage or risk to persons. His model results compare the rise in water level across the Grantham floodplain primarily for two cases:
- Fast Failure: this scenario represents a worst case assessment of what could have occurred on 10 January 2011, including breaching of the quarry bund within five seconds;
- No Bund: simulation of the flood with ground levels modified so that the bund did not exist throughout the event.
[541] The model results show that breaching of the bund had a minimal impact on peak flood level, rate of rise and flood velocity in Grantham, compared to the No Bund case.[344]
[542] Dr Newton used both anecdotal observations and recorded flood data to calibrate his flood model. This included numerous statements of eyewitnesses to the Grantham Flood event. According to Dr Newton, most of the witness statements are not specific with respect to levels or times, which makes it difficult to use this information in a quantitative way. Dr Newton also refers to some witnesses referring to a "wave" or a "wall of water". He observes in this respect:
"The use of these terms cannot lead to any conclusion about the impact of the quarry because the same terms were used by witnesses to describe flooding upstream of Helidon, where it is impossible that the quarry had any effect."[345]
[543] The available flood data for the 10 January 2011 flood which was used to calibrate the TUFLOW hydraulic model included eyewitness accounts, photographs and videos, including Channel 9 helicopter video footage and videos taken by Mr Richardson to which I have already referred. Dr Newton also calibrated the model to surveyed peak flood levels and depths. Dr Newton also made use of telephone call records, including calls to emergency services (000).[346] Dr Newton also used velocity estimates from video tracking of debris to calibrate the model.
[544] Three of the eyewitness accounts relied on by Dr Newton are from Mr McGuire, Mr Pinkerton (who were called at trial) and Alan Eichler. Mr Eichler's account is referred to by Dr Newton at paragraph 46 of the Joint Expert Report. Mr Eichler was not called by the plaintiffs as a witness at trial. The plaintiffs seek the tender of Mr Eichler's statement for the truth of its contents pursuant to s 92(2)(c) of the Evidence Act 1977 (Qld) because "the maker or supplier cannot with reasonable diligence be found or identified".[347] The steps taken by the plaintiffs to find Mr Eichler are outlined in an affidavit[348] of James Micallef, a solicitor with the solicitors for the plaintiffs. In a more recent affidavit filed by the defendants[349] however it is affirmed that Mr Eichler is presently living at an address at Broken Hill and is registered on the New South Wales electoral roll. The plaintiffs therefore need to rely on s 92(2)(b), namely that Mr Eichler is out of the State and it is not reasonably practicable to secure his attendance. There is no evidence before the Court that it was not reasonably practicable for the plaintiffs to secure Mr Eichler's attendance. I have therefore not taken into account Dr Newton's references to Mr Eichler. Dr Newton relied on Mr Eichler's account as only one of many matters which confirmed that his model accurately simulated the behaviour of the flood event.
"Calibration of a hydraulic model to historical floods is a critical and important stage of the model's development. Calibration demonstrates that the hydraulic model is capable of reproducing flood behaviour within acceptable parameter bounds. ... Regardless of hydraulic model type or complexity, the calibration process is critical to ensure the model is capable of adequately representing the physical system, and, in doing so, producing reliable results ...
The golden rule is that if it is difficult to achieve a satisfactory calibration then one or more of the below are likely to apply:
[546] An important part of calibration therefore is the accuracy of input data. It is Dr Newton's opinion that his flood model provides a good representation of the flood as it occurred and that the model results are consistent with the available anecdotal information.[352]
[547] The defendants are critical of Dr Newton's modelling in a number of respects. First, Dr Newton is criticised for citing the proposition that a successful model is one which can match real world results,[353] yet he had to run his model more than 50 times to match those results. This criticism, in my view, misunderstands the calibration process. The calibration process is used to confirm that the model is correct. It does not matter that the model parameters are adjusted numerous times to achieve an accurate calibration. The model must be able to predict what actually occurred to be of any value in predicting alternative scenarios.[354] The process of calibration undertaken by Dr Newton as contemplated by the Guidelines envisages numerous adjustments to the parameters so that the model reflects real world data. This is evident from the following questioning of Dr Newton:
"MR ANDERSON: Okay. Now, how many times did you run the model before you settled on the final result?
DR NEWTON: I don't know, but it would have been a lot.
MR ANDERSON: Are we talking 10, 25, 50, what kind of range?
DR NEWTON: Oh, easily dozens, yeah, perhaps 50. I don't really know.
MR ANDERSON: So, in other words, you had to adjust the parameters 50 times or thereabouts before the model matched your real-world results?
HIS HONOUR: ... Whilst you ran the model 50 times and adjusted your parameters to achieve what you saw as real-world results, when you ran the scenarios of no bund and a bund collapsing simultaneously at 4 o'clock or a bund collapsing within a short time, those scenarios were run in accordance with the model that you had arrived at?
DR NEWTON: Yes, that's correct, your Honour. So we decided on the parameter set. Once that was set, that was fixed for all of the different scenario runs. So we were only testing the impact of changes in the quarry bund - for example, what would've occurred if it didn't erode? What would've occurred if it didn't exist? That was the only difference between the scenarios. The Manning's roughness was fixed, the inflows were fixed. That was the change that we were asked to investigate, the impact of the change.
HIS HONOUR: So your ultimate opinions or the questions that were posed for all experts were answered by you by running those scenarios in the context of your model?
[548] The calibration process undertaken by Dr Newton is best understood by reference to Attachment 8 to the Joint Expert Report. This is a "validation" video produced by Dr Newton. The first part of the video shows an initial overview of the model run from 3.00 pm on 10 January 2011. As the model is run references are made to real world data for the purposes of calibration. For example, at 3.08 pm the model is calibrated by reference to photographs taken at the residence of Mr McIntosh at 3.08 pm. This shows floodwaters being contained within Lockyer Creek. A further photograph taken from the McIntosh residence at 3.20 pm shows that the floodwaters started overflowing from Lockyer Creek into the quarry pit.[356] As the model is run, there are further references to matters used for the purposes of calibration, including 000 phone calls, photographs and videos. The validation video, in my view, supports Dr Newton's opinion that his model provides a good representation of the flood as it occurred.
[549] A second criticism made by the defendants is of the water inflow data used by Dr Newton in respect of the inflow from Lockyer Creek at Helidon, ("the Helidon Inflow"). The inflow data used by Dr Newton for the Helidon Inflow was based on a modified recorded hydrograph from a gauging station at Helidon. Dr Newton explains how he arrived at a Helidon Inflow of 4,600m3/s.[357] The gauge for the Lockyer Creek at Helidon failed during the January 2011 Flood event. The estimated peak 2011 flood discharge from the current published rating curve at the Helidon gauge is about 3,640m3/s. The quality of this rating curve is noted by DNRM as "Poor" above 120m3/s. Initial runs of the TUFLOW hydraulic model using this peak discharge indicated that modelled water levels in Grantham and upstream of the quarry were significantly underestimated. Dr Newton notes that, due to the extreme flow velocities and rate of rise in Lockyer Creek at Helidon, the flood had dramatic effects on the hydraulic characteristics of the channel which was almost stripped of vegetation during the flood. This change in channel roughness would have had a very large effect on the flow carrying capacity of the channel. Dr Newton therefore developed a post-flood rating curve with channel roughness (represented by Manning's 'n') adjusted to match the DNRM rating curve. At the peak of the 2011 flood event the derived rating curves for low and high roughness indicate that the flow may be between 3,100m3/s and 5,400m3/s. The modified rating curve is within the range of reasonable roughness values and is considered suitable by Dr Newton for post-flood channel conditions. Dr Newton then generated an alternative flood hydrograph at Helidon with a higher peak flow.
"We found that when we ran that through the model, that our results were much improved ... It much better matched recorded flood level information both upstream and downstream of the quarry. Not only did it match the peaks, but we were able to match the timing derived from various photographs, timestamped photograph, videos, triple zero phone calls - there's a wide variety of information that we considered and using that info of 4600 cubic metres a second, we were able to match virtually all of that information quite well."[364]
[553] A third criticism made by the defendants is of the Manning's 'n' values used by Dr Newton. The modeller must include in the calculations a figure for 'n', as intending to represent the roughness of the surface over which the water flows. The smoother the surface, the lower the 'n' value. A range of values is likely to be applicable for each kind of surface, with the decision on which to choose left to the modeller. Dr Newton used different Manning's 'n' values for a channel, creek banks, floodplain, demolished building, building, road, dense vegetation, low-medium vegetation and quarry pit. Dr Smart considered that Dr Newton had enabled roughness values that were too high, with the consequence that water levels upstream of the bund were too high.[365] The defendants submit that Dr Newton's position appeared to be that because a selection of the 'n' value was not a perfect exercise, it was ultimately the model outcomes that set the appropriate 'n' value. In other words, the 'n' value was a variable that could be adjusted so as to ensure the model met the assumed outcomes.[366] Again this submission proceeds on the basis that it is inherently wrong to adjust inputs in order to calibrate the model to real world data. This is exactly what Dr Newton sought to achieve:
"You can make a model say almost anything if you move the parameters far enough, but the reason why we believe that we've got the parameters pretty right is not only the peak levels but it's also the timing. So, for example, Mr Steffens' photograph shows that that break-out from the Lockyer Creek main channel that moved north and hit Gatton Helidon Road at about - was it 3.58 or something - we found that if we adjusted the roughness, it would be either too early or too late. So we've been able to use the roughness parameters to not only determine the peak flood level but also the timing of when water reached different places across the floodplain."[367]
[554] I prefer the evidence of Dr Newton to that of Dr Smart. I accept the plaintiffs' submission that Dr Newton was demonstrably a candid witness when giving evidence. He answered questions directly and objectively. The calibration of his model to real world data, as evidenced in the validation video, constitutes compelling evidence which supports his conclusion that the breach of the quarry bund did not cause a surge in floodwaters between the quarry and Grantham sufficient to have any material effect on damage to property or risk to persons. The tragic events in Grantham on 10 January 2011 were inevitable based on the magnitude of the flood event in Lockyer Creek.[368]
[555] The eyewitnesses were called to establish the factual basis for the opinions expressed by the experts, in particular Dr Smart. Dr Newton used the eyewitness accounts, photographs and videos more for the purpose of calibrating his TUFLOW model. Dr Smart, on the other hand, relied on eyewitness accounts to support the existence of a surge.
[556] The defendants called 15 witnesses who were resident in Grantham and witnessed the flooding on 10 January 2011. In giving their evidence, these witnesses had to recount events that were both harrowing and distressing. To better understand their evidence, the Court undertook a view of Grantham which included the Railway Bridge, the King and Arndt residences, the quarry, the Hauser residence (including the green shed) and the Helidon Bridge.
[557] Anthony McIntosh resided at 42 Klucks Road, Carpendale, south-west of the quarry. In terms of Lockyer Creek, his residence was upstream of the quarry. Exhibit 14 shows the position of Mr McIntosh's residence at Klucks Road and also contains a number of photographs and videos taken by him on 10 January 2011. On that day, he was to drive his daughter to Toowoomba for a dentist appointment. On the way to Toowoomba he received a phone call from Peter Campbell, who informed him that there had been a huge amount of rain in Toowoomba and that he should turn around and go home. Mr McIntosh did a U-turn and commenced driving home. From previous knowledge he knew that floodwaters would take six to eight hours to arrive. Once at home, his daughter brought his attention to Lockyer Creek. He described what he observed:
"And I looked out the window and we had water going over the weir, which was directly - in the creek directly north of the house and it was only 400 metres away. And there was huge waves that were going over - the weir wall was causing huge waves of water. And I couldn't believe how quick that water got there, the first thing. When we got outside, we could see the water come - how fast it was moving and we looked upstream towards Kapernick's Bridge, which was about a kilometre upstream, and we could see there was a lot of water there already. And when I saw that was - what was coming, I got on my phone to make some calls to warn some people. I think it was Grantham."[369]
[558] Within 10 to 15 minutes of seeing the water going over the weir Mr McIntosh and his family were cut off and trapped at their house. He described his house as a well-built house and above any known flood marks. The water, however, entered the lower part of his house. He also observed whole trees and an enormous amount of floating debris in Lockyer Creek. As the water continued downstream he heard pine trees snapping, which sounded like gunshots.[370] He noticed the flow of water going west starting to pond.[371] He visited the quarry on 12 February 2011 and at the southwestern part of the quarry "we could see what dirt had been washed away, washed off the top of the - of the bund, and - and where the water had - had flowed. There was a - a considerable amount of water had flown from the Lockyer Creek, it had taken a shortcut straight across the quarry."[372]
[559] It is not clear from the Joint Expert Report what reliance Dr Smart places on Mr McIntosh's observations. His references to "huge waves of water" and the destructive nature of the flood and the fact that it was fast-rising do not support Dr Smart's thesis of a surge caused by the collapse of the bund. This is because Mr McIntosh's observations were made of the floodwaters upstream of the quarry.
[560] Jonathan Sippel resided with his wife Annaka and their children at 1649 Gatton Helidon Road, immediately north of the quarry. Dr Smart relies on Mr Sippel's evidence that he noticed water starting to trickle over the southern end of the bund at or about 3.39 pm.[373] On 10 January 2011 at around 2.30 pm Mr Sippel received a phone call from his sister who lived in Alderley Street, Toowoomba. She told him there had been a lot of rain. Mr Sippel started to observe Lockyer Creek, which at that stage was about half full. To observe the creek he went onto his neighbour's paddock, Tom Friend.
[561] At around 3.15 to 3.30 pm he received a call from Steven Kluck, who lived upstream at Kapernick's Bridge. Mr Kluck told Mr Sippel to get out because floodwaters were about a foot underneath Kapernick's Bridge and were "building rapidly".[374] Mr Kluck informed Mr Sippel that "the powerlines and everything had been washed into the creek". Mr Sippel initially did not believe Mr Kluck because he only lived two kilometres up the creek.
"At that stage, the water was probably maybe about 100 millimetres, six inches running sort of across our paddock, just a gradual sort of little stream of - wave of water, I suppose you would say. I ran back to the house and grabbed our two boys, threw them in the back of one of the cars, grabbed a few of the animals and helped Annaka bring a few things out of the house. ... When I had gone back in in that few minutes, the water had risen to probably about knee-deep in those few minutes of leaving and then I proceeded from that point to go back to the road to where Annaka was."[376]
[564] Mr Sippel then drove his family to Dinner Corner and parked on the crest of the road from where he observed water pooling in the area of the turf farm, on the land immediately west of the quarry and the northern turn in Lockyer Creek. Upon returning to the Mallons' house to assist them, Mr Sippel recalled hearing a loud crash and bang coming from the direction of his house, which lasted about 10 to 15 seconds, followed by an increase in the speed of the water, which became so forceful that he watched it carry away his demountable office and Mr Mallon's tractor. After assisting the Mallons to Dinner Corner, Mr Sippel then made some phone calls from Dinner Corner at approximately 4.20 pm and 4.35 pm. The water level at this time was lapping the sleepers on the railway track. He remained there with his family for no longer than half an hour until the water level dropped. The Sippel's house was inundated.
[565] The defendants submit that Mr Sippel's evidence is "critical" because not only did he observe the creek and the quarry area during the afternoon, he gave evidence of seeing the overtopping of the bund and some form of blockage at the northern end of the embankment, and is also able to provide specificity as to timing.[377] I do not understand the use of the word "critical" in this submission because there is nothing in Mr Sippel's evidence which supports Dr Smart's scenario of a surge emanating from the quarry. To the contrary, Mr Sippel's evidence and the phone calls he had with people who lived upstream of the quarry is consistent with the evidence also given by Mr McIntosh of a fast-rising destructive flood flowing downstream from Kapernick's Bridge. Mr Sippel's observation that water had started to trickle over the southern end of the bund does not support Dr Smart's surge scenario.
[566] Marilyn Hylan lived with her sister at 33 Dorrs Road, which is the first road to the east of the quarry. Dr Smart does not rely on any statement made by Ms Hylan.
[567] She was at home on the afternoon of 10 January 2011. She gave evidence about untying her neighbour's dogs when water on the southern side of the property, the side closest to Lockyer Creek, was reaching past her knees. She observed a wave of water coming out of the creek from the south, heading north. She stated that the water was travelling very quickly "and it was probably coming over the top of sorghum that was ... eight-foot high". She stated that it was just like a big wave at the beach.
"As to paragraph 16 of my first statement, it wasn't a wave as I had said in my first statement, it was a surge of water that rose over the bonnet of the car. It was not a breaking wave like you'd see at the beach, it was a sudden surge in the height of the water coming from the west. I remember it came over the bonnet of the car."[392]
[575] Exhibit 14 contains four videos taken by Mr King's son.[393] Mr King's initial observation was of water creeping along the road, moving up from Sandy Creek.[394] This water was moving from east to west. According to Mr King this was typical of a normal flood. As he and his son were moving up the road to move some vehicles, Mr King observed water which started to pour across the road and which appeared to be coming from the south initially. At the time he was walking west along Railway Street, the water was only ankle deep. By the time his son arrived at the car Mr King estimated that the water had risen more rapidly and was up to his knees. This water was dirtier than the water Mr King had initially observed. When he next looked up he saw water going over the bonnet of his son's car up the street. Mr King states:
"And there's this great mass of water ... sort of come down the road from the westerly direction, but there was sort of a - a bit of a southerly component to it - to it - like a wave, sweeping around. ... And then the - then the next thing I recall was being lifted bodily off the road by this great mass of water. ... Well, there was a lot of rubbish and stuff with the water initially. And - well, I - I was sort of carried off the crown of the road, which I was walking on."[395]
[576] Mr King was swept towards the security fence along the railway line. The height of the water at this time was over the security fence. He was wedged up against some cars and his son was able to get hold of his right arm. He was able to get to the windowsill of his son's car. His son commenced filming the second video at 4.15 pm. This video shows water up to the height of the security fence near the railway line. The flowing water is dirty and contains debris, including cars, boats and a horse float. Because of the force of the water Mr King was washed off the car. Fortunately he was able to hold onto a tree. Again because of the force of the water, he lost most of his clothing while holding on to the tree. He was in the tree for about an hour and a half.[396] Eventually the water slowed down and he was able to pull himself up into a neighbouring tree where he stayed for another hour and a half to two hours.
[577] The video commencing at 4.15 pm shows a lot of rubbish attached to the top of the security fence which, according to Mr King, was deposited there by the initial surge of water.[397]
[578] In describing the water, Mr King stated:
"Well, there were components to that water. It wasn't - it wasn't like sitting in a swimming pool. There was an initial - initial body of water which - that body of water carried the cars and myself over to the tree ... that we were up against, and then, as you can see in the - in that video there, it deposited a heap of rubbish on top of the fence. It receded a little bit, and then another - another body of water arrived. I'd liken the - what happened next to being out on the bay in a storm and the sea gets very choppy ... And that continued for the rest of the afternoon, or for at least a couple of - nearly a couple of hours."[398]
[579] While I accept Mr King's evidence, as I do the evidence of all the eyewitnesses, his observations are consistent with other descriptions of the flood event which hit Grantham on 10 January 2011. Neither Mr King's observations nor his description of "a surge" support Dr Smart's opinion that Grantham experienced a devastating surge emanating from the quarry.
[580] Kenneth Otto lived with his wife at 1374 Gatton Helidon Road. He gave evidence of seeing floodwaters "coming across the paddocks".[399] Mr Otto described seeing a long, black line of water coming towards him across the paddocks from the south-west. This was at approximately 3 o'clock.[400] Mr Otto raced back to move his parents from the cottage into his house. While assisting them across the yard towards the house, the water hit them, knocked over Mr Otto's mother and then washed them all into the shed which was located behind the house. Mr Otto described this water as rising up like a wave as it hit the culvert on the side of the road, and bouncing up over the bitumen in their direction. The water was initially knee-deep, moving very fast and hit them with a lot of force.[401] Once in the shed, according to Mr Otto, the water kept coming up and up so he assisted his parents onto the workbench where they remained for approximately 15 to 20 minutes. The water continued to rise by about one or one and a half metres until it reached approximately a foot below the top of the garage roller door. From inside the shed, he observed the water coming across the paddocks and onto the road in waves; "boiling" water, in "big waves".[402] He agreed that the water rise was a steady rise - it "just kept coming up and coming up, and then it levelled off".[403] Dr Smart relies on Mr Otto's 25 January 2011 description: "The first wave was a bit over knee height but it was moving at a tremendous speed".[404] Mr Otto's evidence is, however, consistent with a fast-rising flood rather than a surge, let alone a destructive surge emanating from the quarry.
[581] Frances and Kenley Arndt lived at 1348 Gatton Helidon Road. Both gave evidence at trial. Dr Smart relied on the statements made by Mr and Mrs Arndt to the Grantham Floods Inquiry. Mr Arndt in his statement described what happened as he was driving west on Gatton Helidon Road, about halfway between Sorrensen and Citrus Streets:
"... I hit a foot or two foot of water. I chucked the ute into 4WD and continued driving for a few seconds then I ran into a wall of water, it was like hitting a brick wall. I had a snorkel on the ute, the water was sucked into it and flattened the motor and the engine stopped. I don't know how high the water was, it came over the ute, it was dirty water ..."
[582] To similar effect was Mrs Arndt's statement in which she described hitting "a bit wall of water" which went straight over the top of their ute:
"The water was coming in an east-north-easterly direction across ploughed land near Roses Rd. It was like a big extended roll of water, like you see when people are surfing at the beach ... It was then all of a sudden this great big wave hit the front of the ute, picked us up like a cork and pushed us off onto the side of the road."
[583] Their evidence at trial was to similar effect.
[584] In cross-examination Mr Arndt agreed that at the time he hit the wall of water he was driving at about 60 or 70 kilometres an hour.[406] The plaintiffs submit, and I accept, that Mr Arndt's evidence is consistent with him hitting floodwaters while travelling at speed.[407] Mrs Arndt's evidence does not support Dr Smart's assertion of a devastating surge. Mrs Arndt's evidence was that her daughter rang her to tell her to get out because there was a big wall of water coming down. She described that when in the ute with Mr Arndt "the water was really coming up to the sides of the ute" and "Water, plenty of it and it was coming up to the sides of the doors and - of the vehicle". She stated, "[W]e got up a bit further there just before we got washed off the road, a big wall of water went straight up and over the front of the ute".[408] Mr and Mrs Arndt were able to escape the ute by opening the windows and were washed into some trees along Railway Street. As the waters continued to rise Mr and Mrs Arndt climbed higher into the trees where they stayed until they were rescued by helicopter. While they were in the trees the water continued to rise by approximately a foot or more. This description is consistent with floodwaters and does not support Dr Smart's theory of a devastating surge emanating from the quarry.
[585] Ian Pinkerton lived across the road from Mr and Mrs Arndt on the Gatton Helidon Road. Dr Smart relied on Mr Pinkerton's description in his statement to the Grantham Floods Inquiry:[409]
"The water hit us from 3 directions. Firstly, the main part of the water had come down the Gatton-Helidon Road from the Toowoomba direction towards the east. Secondly, water was also coming up from the direction of the Lockyer Creek, from the south. Thirdly, water was also bouncing off the railway tracks and coming back in towards us, from the other side of the road. I estimate that the water was moving easily at between 80-100 km per hour, taking everything in its path. I say this because I have been a truck driver for most of my life and I am experienced at estimating speed."
[586] Mr Pinkerton escaped to the roof of his house at or about 3.45 pm and observed that the water was around 10 foot deep and continuing to rise when he climbed onto the roof. Mr Pinkerton stated that the water came into the house from the western side. It was probably about a foot and a half to two foot deep in the kitchen.[410]
[587] Exhibit 14 includes videos taken by Mr Pinkerton from 1347 Gatton Helidon Road.[411] None of these videos were relied on by Dr Smart as evidencing a surge. Mr Pinkerton's evidence and these videos are, in my view, consistent with fast-flowing floodwaters containing significant debris, including cars.
[588] Lance Richardson was the manager of the Grantham Hotel at 12 Anzac Avenue, where he lived with both his son and his mother. Dr Smart relies on the video taken by Mr Richardson at 4.14 pm, which Dr Smart claims "shows remnant surge waves".[412] I have addressed this evidence at [470] to [475] above.
[589] Mr Richardson received a phone call just before 4.00 pm on 10 January 2011, informing him that there was a lot of water at Helidon.[413] Soon after he observed that a container which was next door started floating down beside the hotel and out onto the road. He took a video of this event at 4.14 pm. He then went inside the hotel and started to lift equipment. By this stage water had started to come through the hotel and he took another video at 4.26 pm. The water inside the hotel was at this stage ankle deep. Prior to taking his third video at 4.36 pm Mr Richardson states that the water had continued to rise, and had swept items out of the hotel. The third video shows extreme flooding and rapid flowing water from the hotel veranda. Mr Richardson then heard a loud noise which alerted him to the fact that his neighbour's house had collapsed. His final video at 4.53 pm depicts his neighbour's house missing. The three occupants of this house lost their lives in the Grantham Flood event.
[590] Mr Richardson's evidence, including the videos he took, are consistent with a flood event. Mr Richardson did not refer to seeing any waves or a surge of any magnitude. Rather, he describes floodwaters that were rising "dramatically".[414]
[591] Mr Richardson had been in Grantham during the floods in 1986. Compared with previous floods, he said he had "never seen it that high, of course, and I've never seen it flow that fast. Yeah, just a great volume of water." He stated that the water peaked at approximately 4.50 pm and "stayed up pretty high until just on dark". Apart from Mr Richardson's video taken at 4.14 pm, which Dr Smart relies on for the purpose of showing "remnant surge waves", Dr Smart does not rely on the videos taken by Mr Richardson as evidencing a devastating surge.
"On leaving my house in Grantham Fire Truck 51 with my family on board, I looked back in the rear vision mirror in the direction of the railway line behind my house. I could see the water appear to hit the railway line and created a wave rolling back in the direction of my house. I would describe this water as being about two to three metres in height."[421]
[597] The plaintiffs submit and I accept that Mr McGuire's evidence of fast flowing water first coming from a south to south-westerly direction and very soon after from a westerly direction is entirely consistent with Dr Newton's model. This is evident from the validation video. While Mr McGuire describes water going over the fire truck, this is caused by the floodwater hitting a culvert and splashing over.[422] There is nothing in Mr McGuire's evidence which suggests the presence of a surge of the kind postulated by Dr Smart.[423]
[598] It was often difficult and distressing for the eyewitnesses to recount the events of 10 January 2011. I accept their evidence of what they observed on that day. Much of their evidence was unchallenged. The cross-examination of the eyewitnesses by Senior Counsel for the plaintiffs simply sought to clarify what they observed.
[599] To the extent Dr Smart, in forming his opinions, relied on the evidence of the eyewitnesses, such evidence does not support the existence of a devastating surge caused by the breaching of the bund. The eyewitness evidence is consistent with an unprecedented volume of floodwater flowing down the Lockyer Valley, across the floodplain at Grantham.[424]
[600] 2GB and Mr Jones have failed to establish the substantial truth of the Category 1 imputations.
Category 2 - the plaintiffs engaged in conduct designed to cover up the role played by them and the quarry in the Flood event
[601] In accordance with my determination as to which imputations were conveyed, the relevant imputations which fall within Category 2 sought to be justified are: 12(a), 12(b), 15(a), 15(b), 31(c), 31(d), 37(c), 40(c), 43(e), 52(b), 52(c), 71(a), 71(b), 80(c), 80(d), 86(a), 86(c), 91(d), 91(e), 91(g), 92, 93B(a), 93B(b), 94, 95B(b), 96, 99(a), 99(b), 100(a), 100(b), 102, 102A and 105A.[425] In their written submissions,[426] the defendants identify 52 imputations which fall within Category 2. I have determined that eight of these 52 imputations were not conveyed.[427] It is evident from Amended Attachment A to the defendants' submissions that 2GB and Mr Jones no longer seek to justify 11 of the 44 imputations conveyed.[428] These 11 imputations include the following meanings:
- knowing of their culpability, the plaintiffs tried to persuade the Premier that allegations about a cover-up were a conspiracy theory;
- knowing of their culpability, the plaintiffs persuaded the Premier that she should put her own self-interest ahead of assisting the truth to come out, and refuse to appear before a Senate inquiry into the disaster;
- the plaintiffs conspired with the Deputy Prime Minister, Warren Truss and Barnaby Joyce to cover up their culpability for the deaths of people in the Grantham flood disaster;
- the plaintiffs, in concert with the Bligh and Newman Governments and police, criminally conspired over a period of four years in a disgraceful and massive cover-up of the cause of the horrific and terrifying Grantham flood;
- each of the plaintiffs disgracefully instructed the barrister appearing for him at the Grantham flood inquiry to bully a local resident, Ian Pinkerton, while cross-examining him as he gave evidence about the torment he and his family suffered during the fatal floods that hit the Lockyer Valley in 2011;
- in concert with politicians, big business and the police, the plaintiffs engaged in a cover-up of their culpability for the Grantham flood in which 12 people died;
- each of the plaintiffs attempted to cover up his culpability for causing the Grantham flood that killed 13 people on 10 January 2011 by removing large sections of an embankment on the northern side of his quarry in May 2011; and
"(i) were responsible for the deaths of 12 people in Grantham because it was the breaching of the levee at the Wagner Business owned Quarry that caused the torrent of water;
(ii) took part in attempts to cover up, by denying, the involvement of the levee in creating the torrent;
(iii) intended or were prepared to take part in any attempt to cover up the involvement of the levee in creating the torrent;
(iv) intended or were prepared to benefit from any attempt to cover up the involvement of the levee in creating the torrent;
(v) benefitted in that there was an avoidance of, or an attempt to avoid, by virtue of the matters set out herein:
[606] The allegation in relation to the SKM Reports was not pursued in evidence. Nor were any of the alleged motives outlined in (v) above (apart from evading liability for property damage) put to any of the plaintiffs in cross-examination.
[607] A material component of the Category 2 imputations is the allegation that the plaintiffs orchestrated a cover-up. In order to participate in, or orchestrate, a cover-up there must be some actual intention on the part of the plaintiffs which is deceptive in nature to conceal evidence of wrongdoing.[431] The articles and the submissions made on behalf of the plaintiffs to the Grantham Floods Inquiry cannot in themselves establish the truth of the Category 2 imputations. The defendants seek to establish the truth of these imputations by inviting the Court to reject the evidence of the first plaintiff, Denis Wagner, given in the course of cross-examination. Denis Wagner was responsible for the operation and management of the Grantham quarry and for dealing with the scrutiny following the flood. He was cross-examined extensively in relation to this issue. Having observed Denis Wagner give evidence over the course of two days, I found him to be a straightforward and credible witness. I accept Mr Wagner as an honest witness.
[608] Before I consider his evidence, however, I note that there is a further difficulty with the truth defence in relation to the Category 2 imputations. The common sting of the imputations is that the plaintiffs orchestrated a cover-up to conceal their responsibility for the collapse of the bund and the resulting loss of life. I have already concluded that the defendants have failed to establish the substantial truth of the Category 1 imputations. That is, the defendants have failed to establish the culpability of the plaintiffs. There is no evidence that any of the plaintiffs held a belief that they were in fact culpable and that such culpability necessitated the orchestration of a cover-up. 2GB and Mr Jones have therefore failed to justify a material component of the Category 2 imputations. They have also failed to prove the substantial truth of the first component of the Category 2 imputations, namely that the plaintiffs orchestrated a cover-up.
[609] In considering this first component it is necessary to have some understanding of the topography of the quarry. The experts agree that the 2010 LiDAR and the 2011 LiDAR describe the surface topography of the quarry and surrounds before and after the January 2011 flood event. The Joint Expert Report defines both the word "bund" and the term "natural bank". "Bund" is defined to mean a mound of earth up to about six metres high which had been placed on top of the natural bank along the western side of the quarry pit prior to the January 2011 flood event. "Natural bank" is defined to mean the original ground between the quarry pit and the main channel of Lockyer Creek. As stated by Dr Newton in his report, during the January 2011 Flood event, floodwaters from Lockyer Creek overtopped the natural bank causing a breach in the bank between the quarry pit and the creek channel. The crest of the bund was also subsequently overtopped, resulting in sections of the bund being washed away. The breach in the natural bank between Lockyer Creek and the quarry pit was up to about 8 metres deep and about 50 metres wide. The breach to the bund was in two sections, one of approximately 170 metres and one of 90 metres wide. The depth of material removed from these two sections of the bund averaged between 2 metres and 4 metres, but was greater in some places where the bund and underlying material had both been removed. The bund height ranged from about 2 metres up to a maximum of about 6 metres near its southern end.
"Wagner's managing director Denis Wagner says he hopes the doctor's evidence ends speculation about the quarry's role. 'It's very important that out of the flood inquiry has come the fact and the realisation that our operation at Grantham actually lessened the impact of the flood on the Grantham township, as opposed to making it worse, as has been alleged in various media reports over recent times,' he said."
[612] In an article, "Quarry family firm: let's get the facts but our hands are clean" published in The Australian on 7 March 2015, the following statements are ascribed to Denis Wagner:
- "Denis Wagner, the head of the quarry operations before his family sold it to Boral after the flood, has repeatedly rejected accusations that the embankment was both man-made and played a deadly role in the flood. There have been other claims of cover-up and culpability."
- "Mr Wagner said yesterday: 'These allegations have been concerning because some people may believe them. We have never had any issues about being held accountable for our actions. But we take exception to false and misleading allegations.'"
- "According to Mr Wagner, the embankment wall of soil surrounding the quarry is not man-made, but natural. The claim is strenuously challenged by some locals who insist the high earthen wall, in alignment with the creek, was built relatively recently. 'The flows in the creek have never been altered,' Mr Wagner said."
- "'During the event in question the quarry pit acted as a flood mitigation structure because what it did was reduce the water that flowed downstream.'"[437]
[613] In an article, "Key Queensland independent MP Peter Wellington joins push for Grantham flood inquiry" published by ABC News on 10 March 2015, the following statement is ascribed to Mr Wagner:
- "But quarry owner Denis Wagner said his pit lessened the flood's impact and he had nothing to fear from another inquiry."[438]
[614] In an article, "Grantham Flood findings flawed" published in The Australian on 7 March 2015,[439] the following statements are made:
- "Denis Wagner, a director of Wagners, said yesterday he and his family still strongly believed in the original expert finding, supported by the floods inquiry, that the deep quarry gave the townsfolk more time and slightly reduced the flooding in Grantham."
- "'Regardless of how big the breach in the embankment was, what you had there was a deep pit and all of this water rushing down the creek filled it and that delayed the water that went on to hit Grantham,' he said. 'The pit has taken that huge volume of water out of the flood. The other point that we keep trying to make is that the embankment or alleged levee is not man-made and was certainly not developed by Wagners - it is the natural creek bank.'"
Similar statements are made by Denis Wagner in two further articles.[440]
[615] Denis Wagner was cross-examined extensively in respect of the statements made by him in these articles. His evidence was that he always maintained that the "quarry wall" and the "embankment" were natural and were not man-made, and that the quarry mitigated the effects of the flood.[441] The defendants submit that Mr Wagner's maintenance of this position was unreliable for the following reasons:
"(a) It is completely contrary to numerous news articles - which Mr Wagner professed to have read at the time they were published - in which locals were quoted, complaining of a man-made earthen structure which held back the floodwater at the quarry, and telling of how they saw the earth being piled along the western side of the quarry, getting higher and higher;
(b) It is simply unbelievable that in the face of those public complaints, the first plaintiff chose not to investigate the existence of a man-made structure at the quarry. He cannot have reasonably maintained the understanding that the numerous references to a stockpile, dam, wall or other man-made structure was merely a reference to the internal wall of the quarry pit or the natural creek embankment;
(c) It is also unbelievable that the first plaintiff, given his familiarity with the quarry since at least the 1990's, would have no knowledge of such a structure being built, particularly when he visited it frequently and when, during the later years, the quarry was under his direct management and control;
(d) The Wagners commissioned a survey of the quarry in 2008, which clearly showed excess material along the western edge of the quarry pit. It is difficult to believe that the first plaintiff would not have been aware of that survey, given he was managing the quarry at the time."[442]
[616] Upon a proper analysis of Mr Wagner's cross-examination there is, in my view, nothing unreliable in him maintaining his position. The cross-examination of Mr Wagner on this issue covers close to 70 pages of transcript.[443] Mr Wagner's understanding of the public narrative was that the media reports referred to "a quarry wall or a quarry embankment". To his knowledge, in the media reports in 2011 or shortly thereafter, there was no mention of "a quarry bund or a levee".[444] He understood the allegation to be that the quarry wall had failed.
[617] It was suggested to Mr Wagner that part of the public narrative from 2011 included concerns being expressed that the "stockpile had collapsed".[445] Mr Wagner did not agree with this on the basis that a stockpile, according to industry standards, is simply material that is put in a heap and reprocessed and later sold. This is to be contrasted with a bund which is on the edge of a pit. Mr Wagner readily agreed that stockpiles were placed on the quarry of material which was processed for subsequent sale. Mr Wagner's understanding was that a reference to the "quarry wall" was a reference to the face of the wall of the quarry.[446]
[618] Mr Wagner did not accept that the public narrative, soon after the Grantham Flood event, concerned "a manmade bund on the western side of the quarry [which] had collapsed causing an inland tsunami".[447] Mr Wagner's public position was that the quarry mitigated the impact of the flood on the township of Grantham. He knew that part of the natural embankment had collapsed during the Grantham Flood event.[448] It is apparent from the discussion of the topography of the quarry above, that approximately 50 metres of the natural embankment was breached in the course of the flood.
[619] Mr Wagner was consistent in his answers that he understood that locals were concerned about the breach of the embankment and the quarry wall. At no time did Mr Wagner, in making these public statements, intend to refer to the bund. His recollection is that the bund was never mentioned in the public discourse.[449] It was put to Mr Wagner that by repeatedly denying that there was a man-made construction at the quarry he was seeking to cover up any role played by the quarry in the Grantham flood. Mr Wagner's evidence in response, which I accept, was as follows:
"That's actually not correct. I never once denied that the quarry had some impact on the flood. Our position was - or my position was back then and is still today that the impact that it had on the flood was to delay the flow of water into Grantham and to reduce the height of the flood water in Grantham, and I have always run that line, and that is still my position today. In all discussion and interviews and, to my knowledge, correspondence up until the Sofronoff inquiry actually started, we always spoke about the embankment and the quarry wall, which - so, you know, there was never any discussion about the bund. There was sort of never any discussion about sort of anything else. It was always about the embankment and the quarry wall. And it is still my position today that both the embankment and the quarry wall are natural features."[450]
[620] There is nothing in the evidence to contradict Mr Wagner's evidence that, until the Grantham Floods Inquiry, there was no reference made to a "bund".
[621] Mr Wagner understood the reference to the embankment being breached or collapsing as a reference to the 50 metre wide breach that was four metres deep, which was the breach of the natural bank.[451]
[622] According to Mr Wagner, he did not know of the existence of the bund until he saw a 2008 survey in preparing for the Grantham Floods Inquiry. The survey did not come to his attention until that time.[452]
[623] Mr Wagner was cross-examined about his familiarity with the quarry and the frequency of his visits over the years. It was suggested to Mr Wagner that he must have known of the bund prior to the flood. Mr Wagner gave the following evidence:
"DENIS WAGNER: Prior to all this sort of coming out, you know, to drive around that quarry and see a bund on the edge of the quarry was not something that you would say, well, there's a bund on the edge of the quarry because, you know, it's just an ordinary feature in the development of a sandpit.
DENIS WAGNER: At one point. And, you know, I think you said before it was 250 metres long, and a large portion of the 250 metres was a bit over two metres high.
MR ANDERSON: Which is still - you're a very tall man, but it's still taller than you?
DENIS WAGNER: Well, yeah, but I don't go climbing over the bund, sir. I---
MR ANDERSON: You must have? ... If you went on the access track, you must have?
DENIS WAGNER: No. No. That is certainly not the case. The access track was very rarely used and would very rarely used for quarrying purposes. The power company - the access track was really for the power company to inspect the power lines. We would drive from the sand washing plant, which is on the eastern side of Lockyer Creek, through the Lockyer Creek on the eastern side of the horseshoe bend and into the pit. So very rarely would I or, I would suggest, any of our people onsite drive along that western embankment."[453]
[624] I accept Mr Wagner's evidence on this issue. He did not seek to lessen the number of times he had attended the quarry, stating that he would get there once every two, three or four weeks".[454] As correctly submitted by the plaintiffs, Mr Wagner had many responsibilities and aspects of the business to look after. The Grantham quarry was just one. There was no reason for the bund to have lodged in Mr Wagner's consciousness, and there was even less reason for the few remnants of it to impinge on his consciousness after the flood, by which time the bund had virtually washed away.[455]
[625] As to the 7 July 2011 article in The Australian, Mr Wagner gave the following evidence:
"The Australian article - I'm unsure the date of it. But The Australian article - and I think it was about six months after the flood - was specifically, in my opinion, referring to the breach and the quarry wall and the embankment. That's what the article spoke about. And post that, in any discussion I had with any media outlet or a journalist, we always spoke about the quarry wall, which, in turn, led to the breach and breached through the embankment. The bund came into play when - prior to the Sofronoff inquiry. When we became aware of it - and I think the word 'bund' was ever only used at the inquiry. I don't think the word 'bund' was ever used anywhere else. Had anyone at any time said bund, you know, on top of the embankment, the lights may have come on that they were talking about something differently to what I was talking about."[456]
[626] In circumstances where there was a 50 metre breach to the natural bank, it is understandable that Mr Wagner comprehended references to the breach of the quarry wall as a reference to that breach.
[627] Mr Wagner rejected outright any suggestion that it was his intention to cover up the role played by the quarry in the Grantham Flood event:
"MR ANDERSON: All right. Now, I just wanted to show you one more - sorry, I do need to say one more thing. Your intention - I know you disagree with me, but I need to put it to you. Your intention in this respect was to cover up the role played by the quarry in the Grantham flood disaster?
MR ANDERSON: Because the more you deny it, the further distance you put between yourselves and public responsibility for what had occurred?
DENIS WAGNER: I find that a bit offensive, but abs - the answer to that is absolutely not, Mr Anderson."[457]
[628] I accept this evidence.
[629] 2GB and Mr Jones have failed to establish the substantial truth of the Category 2 imputations.
Category 3 - the plaintiffs were involved in bullying and intimidation
[630] There is only one imputation which falls within Category 3 which is sought to be justified. The defendants seek to prove as substantially true the imputation that the plaintiffs are people who know only two things - self-interest and bullying.[458] The imputation is sought to be justified by reference to evidence said to prove two allegations. First, that the plaintiffs bullied and intimidated Heather Brown and David Pascoe and, secondly, attempted to intimidate Ian Pinkerton. The defendants' pleaded case is that:
- "the plaintiffs had acted so as to bully and intimidate Heather Brown and David Pascoe, the desired effect of which it may be inferred was to prevent them from speaking out against them and to cover-up, or alternatively deflect attention away from, the true facts ... or any investigation of them";[459]
- "the plaintiff[s] had bullied and intimidated persons who were witnesses at the Grantham Flood Commission of Inquiry, or acquiesced in the bullying of those people, ... it may be inferred, to prevent them from speaking adversely about the plaintiffs or the Wagner business, and therefore to protect [themselves] or [their] business from being held to account for the deaths of people in the Grantham Flood disaster."[460]
[631] The true facts pleaded in Annexure A to the defence in respect of Heather Brown and David Pascoe are as follows:
- "on or about 24 November 2013, an open day was conducted at the airport involving the low flying over the property occupied by Heather Brown and David Pascoe, at which (the plaintiffs knew or ought to have known, from the general knowledge of the area and because the [second plaintiff] had been told words to that effect by Ms Brown on previous occasions) Ms Brown and Mr Pascoe kept horses. The lowflying of aircraft over the property had the effect of spooking the horses. Ms Brown attempted to contact the second plaintiff to complain. The second plaintiff telephoned Ms Brown that evening and said to her, using words to the effect, and dismissive of Ms Brown's complaint about the effect of the airport on the horses, that their respective businesses were incompatible and that Ms Brown should move";
- "on or about 19 December 2013, an excavator owned or operated by the plaintiffs (through, it must be assumed, a corporate entity) was operated at night and in close proximity to Ms Brown's horses. Ms Brown complained to the second plaintiff in response to which she was told, using words to the effect, that she should move";
"MR ANDERSON: Did you have a conversation with Mr Wagner that night?
HEATHER BROWN: Yes, we did. As I - as I gained my feet, I turned around. And I was very shocked. But having been a - a journalist who'd done a lot interviews and - handled a lot - a lot of situations, I regained my composure.[464]
MR BLACKBURN: You agree that it was a pleasant conversation?
HEATHER BROWN: I - the conversation, as I recalled earlier, which I spoke about, he said, 'We didn't have your - I'm John Wagner. We didn't have your house done over.' He - he said, 'You've got - you've got some horse event in Cloncurry'. He gave me his card. He said, 'Contact me direct'. That was the conversation.[465]
MR BLACKBURN: And you said to him words to the effect, 'It's nice to meet you at long last' or words to that effect?
[637] Apart from shaking Ms Brown's hand, John Wagner denies that he touched her in any other way.[467] Further, according to Mr Barham, when he and John Wagner approached the table, Ms Pascoe stood up. His evidence was that at no stage did Mr Wagner touch Ms Pascoe.[468]
[638] This is a sufficient description from the evidence of the relevant conduct. Irrespective of how Ms Brown viewed Mr Wagner's actions, it has to be accepted that this was the first time that Mr Wagner and Ms Brown met. The meeting was at a fundraising function attended by 600 people. Both Mr Wagner and Ms Brown described the conversation that ensued as pleasant. There is nothing in Mr Wagner's conduct that would in any way suggest that he sought to bully or intimidate Ms Brown on their first meeting.
[639] The second aspect of conduct that is said to constitute bullying and intimidation arises from an open day conducted for the Wellcamp Airport held on 24 November 2013. The open day involved the low flying of old aeroplanes, Warbirds. These planes conducted two flyovers. According to Ms Brown and Dr Pascoe, these flyovers spooked many of the horses at Plaintree Farms and caused some to hurt themselves by running into or through or over fences. Ms Brown attempted to contact John Wagner to complain about the damage being caused and sent text messages to him on the day.[469] Ms Brown and Dr Pascoe spent several hours sedating and moving horses to less exposed locations, however despite their efforts, six colts were injured.[470]
[640] John Wagner telephoned Ms Brown that evening when she was in the car with Dr Pascoe. According to Ms Brown, Mr Wagner said words to the effect that their two businesses were incompatible and that Ms Brown and Dr Pascoe needed to relocate.[471] Mr Wagner admitted that in conversation with Ms Brown after the open day, he was dismissive of her complaints,[472] and told her that their businesses were incompatible. It was known to Mr Wagner that Ms Brown had publicly opposed the construction of the Wellcamp Airport and also made public statements regarding the influence of the quarry in the Grantham Flood event. Mr Wagner admitted to having a growing level of resentment towards Ms Brown and Dr Pascoe.
"MR ANDERSON: And the reason you didn't was because you'd been bullying and intimidating Mrs Brown and Dr Pascoe for some period of time, because they were antagonists as you see it?
JOHN WAGNER: Absolutely not, and I have never bullied or intimidated Brown or Pascoe.
MR ANDERSON: And, indeed, on the occasion at the fundraiser, when you came and grabbed Mrs Pascoe by the arm and pulled her to her feet, that was another example of your attempts to bully and intimidate?
JOHN WAGNER: Well, I - I totally - totally - disagree that I touched Heather Pascoe in any shape or form apart from shaking her hand."[477]
[642] I accept Mr Wagner's adamant denial that he sought to bully or intimidate Ms Brown or Dr Pascoe.
[643] Further conduct complained of is that on 19 December 2013 an excavator was operating at night in close proximity to Plaintree Farms. Ms Brown sent a text message at or about 6.50 pm to John Wagner asking that the work be stopped.[478] Dr Pascoe drove down to the entry to Wellcamp Airport and spoke to the night foreman and the Work Health and Safety officer, requesting that they shut the excavator down. There was also discussion about the sound. Mr Wagner's evidence was that the noise was at a low level.[479] The Wellcamp Airport was being constructed at the time. Mr Wagner's conduct should be viewed in the context of him responding to a noise complaint from a neighbouring property. This conduct is, in my view, incapable of constituting bullying and intimidation.
[644] Ms Brown and Dr Pascoe also gave evidence of occasions when a distinctive yellow helicopter, which they recognised as belonging to the Wagners, flew low over their property without cause and circled the office and the sheds multiple times.[480] Both John and Neill Wagner gave evidence about this topic. John Wagner stated that he knew nothing about the alleged incidents.[481] Neill Wagner stated that he did not ever fly a helicopter over Plaintree Farms.[482] One may readily understand, given Ms Brown's opposition to the construction of the Wellcamp Airport, that she would be sensitive to aircraft, including helicopters flying over or near Plaintree Farms. There is, however, no evidence that this was intentional conduct on the part of the plaintiffs, or that the plaintiffs sought to bully or intimidate Ms Brown and Dr Pascoe.
[645] The alleged conduct, quite apart from not constituting bullying and intimidation, is readily explicable by the nature of the event. The meeting at the fundraiser, for example, arose because Ms Brown and Mr Wagner had not previously met. Mr Barham, who was present at the fundraiser and knew both of them, was able to facilitate an introduction. Similarly with the open day at the airport, there is an obvious explanation for the flyovers by the Warbirds, namely to entertain the crowd that was attending the open day. Further, as Plaintree Farms is across the road from the airport, some helicopter traffic would be expected.
"And his - there's this person, Denis Wagner, standing between his door and the car, and I've looked again, and that's when I've noticed who it was, and we eyeballed each other for probably a minute, I suppose, and I couldn't believe it, wondered what he was up to, so I went inside to get my partner to get a camera or video or whatever, and when I've come back out, he had started to drive off then."[484]
[647] Denis Wagner denies that this incident ever occurred.[485] The defendants submit that it may be inferred that this alleged behaviour by Denis Wagner was designed to intimidate Mr Pinkerton because he had given evidence at the Grantham Floods Inquiry about the torrent of water in Grantham, and his evidence could potentially harm the plaintiffs in the circumstances that the torrent originated at their quarry.[486] I do not accept this submission. First, from Mr Pinkerton's own evidence it would appear that his sighting of the white Land Cruiser and the driver occurred purely by chance. He only became aware of the vehicle when he went out to his front veranda for a cigarette. Secondly, if the alleged conduct was for the purpose of bullying or intimidating Mr Pinkerton, the timing of such conduct is illogical because Mr Pinkerton had already given his evidence to the Grantham Floods Inquiry. Thirdly, the allegation that Mr Wagner sought to bully or intimidate a person who had just given evidence to a commission of inquiry is a very serious allegation. Such conduct could have exposed Mr Wagner to contempt proceedings. In those circumstances, and having already accepted Denis Wagner as a witness of truth, I accept his denial of ever having engaged in such conduct.
[648] Mr Wagner's denial is only countered by the identification evidence of Mr Pinkerton. The plaintiffs submit that Mr Pinkerton's evidence should not be accepted on the basis that he is a disgruntled ex-employee of Wagners who had an axe to grind.[487] It is not, in my view, necessary to make an adverse finding of credit in relation to Mr Pinkerton. Having accepted Mr Wagner's denial of the alleged conduct, I find that Mr Pinkerton was mistaken as to his identification of the driver of the white Land Cruiser.
[649] 2GB and Mr Jones have failed to establish the substantial truth of the Category 3 imputation.
Category 4 - the plaintiffs constructed and operated the Wellcamp Airport in breach of all the rules
[650] In accordance with my determination as to which imputations were conveyed, the relevant imputations falling within Category 4 sought to be justified are paragraphs 28(b), 37(e) and 80(a).[488] In their written submissions, the defendants identify seven additional imputations with the same common sting as those falling within Category 4.[489] The defendants no longer seek to justify these seven additional imputations.[490] Although the defendants no longer seek to justify these imputations, some of them are defended on the basis of contextual truth (s 26 of the Act).
[651] The seven imputations which the defendants no longer seek to justify conveyed the following meanings:
- each plaintiff was a corrupt businessman in that he was able to build an airport in breach of all laws by reason of his connections with the Premier, Campbell Newman and other officials in local government and state government;
- each plaintiff built an airport without seeking proper approvals which he knew were required with disgraceful disregard for the interests of the community;
- each plaintiff dishonestly tried to get away with building an airport in Toowoomba without seeking proper approvals from the Toowoomba Regional Council, because he knew the Council was gutless and the state government was on side, letting him walk over the community;
- each plaintiff built the infamous Wellcamp Airport in disregard of the interests of the community without first obtaining, as he was required to do, an environmental impact statement, a health impact statement, a community impact statement or a water impact statement, or paying the compensation owing to those adversely affected because they lived in close proximity to the airport;
- each plaintiff illegally obtained a national asset, the airspace over the Oakey military base, for use at his private airport;
- each plaintiff thought he could get away with building an airport at Toowoomba without seeking proper approvals, and without having to pay for a national asset, the airspace over Oakey; and
- each plaintiff by reason of his corrupt relationship with the Coalition in Queensland and Canberra, was able to buy the airport at Toowoomba without seeking the required approvals and was then gifted Oakey airspace, which is a valuable national asset.
(a) No approvals obtained under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) ("the EPBC").
[655] The defendants submit that in proceeding with the development of the Wellcamp Airport, the plaintiffs breached s 18 of the EPBC.[493] Section 18(4) provides:
(a) has or will have a significant impact on a listed threatened species included in the vulnerable category; or
(b) is likely to have a significant impact on a listed threatened species included in the vulnerable category."
[656] The breach of s 18 is alleged on the basis that the development of Wellcamp Airport "had an obvious and significant impact on the koala species". Section 18 is a civil penalty provision, a breach of which has serious consequences. A breach of s 18 will only occur, however, if the relevant action "has or will have a significant impact on a listed threatened species included in the vulnerable category". The only evidence identified by the defendants in support of this alleged breach is that of Dr Pascoe and Ms Brown. Ms Brown gave evidence that she observed koalas in the trees on Plaintree Farms. According to Ms Brown the koalas used to come across from Wellcamp Downs. On a few occasions she conducted rescues of koalas crossing the road.[494] Her evidence was that there were koalas up until the point of the development of the airport: "... and then we saw a lot of koalas crossing the road frantically when the bulldozers went in and moving out, which was incredibly sad."[495] Dr Pascoe's evidence was that he and Ms Brown saw a koala once a month.[496] This changed around 2011 and 2012 when the Wellcamp Airport was being constructed. Dr Pascoe noted that the koalas fluctuated "depending on the weather and the drought and the quality of the tree foliage".[497]
[657] None of the plaintiffs were cross-examined in relation to any alleged breach of s 18 of the EPBC.
[658] The evidence of Ms Brown and Dr Pascoe does not establish a breach of s 18 of the EPBC. The defendants did not call any expert evidence to establish that the airport development had an impact, let alone a significant impact upon the koala population within the development area. As correctly submitted by the plaintiffs, one might have expected expert evidence to address such topics as:
- (a) whether the area in which the airport was to be developed had a koala population;
- (b) assuming it did, what impact the development would likely have on that population; and
- (c) whether the development did in fact have an impact on the koala population.[498]
[659] The defendants have failed to establish either that the plaintiffs, in constructing the Wellcamp Airport, required approval under the EPBC or that by not doing so they breached s 18.
[660] The defendants identify a number of objections lodged with the Toowoomba Regional Council in respect of the proposed airport development. These include responses dated 19 November 2012 from the Civil Aviation Safety Authority (CASA), the Department of Infrastructure and Transport, and the Department of Defence, as well as a response dated 9 November 2012 from the Department of Sustainability, Environment, Water, Population and Communities.[499]
[661] It is not apparent from the defendants' written submissions[500] how these objections and any public criticism establishes the substantial truth of the three imputations. I accept the plaintiffs' submission that on no view can the fact that these objections, which were made before the first development application was approved in January 2013, prove as substantially true imputations that the airport was constructed having broken "all the rules", or that the plaintiffs were "callous and selfish" people because they built an airport without various impact statements and without payment of compensation to people, or that the plaintiffs built an airport "without seeking proper legal approvals and then taking a national asset, the airspace over Oakey, without making any payment for it."[501]
[662] The parties called town planning experts. The plaintiffs called Mr Chris Schomburgk. The defendants called Mr Greg Ovenden. As well as individual reports, the experts produced a joint report, dated 17 April 2018. The expert town planning evidence was limited.
[663] In all, there were 10 development applications lodged in respect of the Wellcamp Airport. In their joint report, the town planners accept that the relevant application history is accurately set out in section 1.3 of Mr Ovenden's report dated 29 November 2017. The first development application was lodged on 6 October 2011, with the final and tenth development application being lodged on 27 March 2015. There is no suggestion in Mr Ovenden's reports that the plaintiffs, in seeking and obtaining approval, in any way acted illegally. Generally, the town planning matters considered by the experts were technical.
[664] At the date of the lodgement of the first development application on 6 October 2011, the Jondaryan Shire Planning Scheme was in force, with the Toowoomba Regional Planning Scheme commencing on 1 July 2012. The relevant provisions of each planning scheme are set out in Mr Ovenden's report, dated 29 November 2017.[502]
[665] There are three areas of disagreement between the town planning experts:
- (a) whether the Toowoomba Regional Council should have accepted the proposed use for "utilities public - public airport" under the Jondaryan Shire Planning Scheme;
- (b) whether there were restrictions on aircraft type or seating; and
- (c) whether the applications made were "piecemeal".
[666] An additional issue addressed by the experts is whether one of the present uses of the airport as a function centre is in breach of the development approval.
[667] As to the first matter of disagreement, the defined land use proposed by the plaintiffs and accepted by the Toowoomba Regional Council as part of the third development application was "utilities public". This is defined in the Jondaryan Shire Planning Scheme as follows:
"Any premises used or intended for use for any of the following undertakings, namely:
(a) a railway, tramway, road or air transport, wharf, harbour, sea or river undertaking; or
(b) major undertakings for the supply of water, hydraulic power, electricity or gas, or the provision of radio broadcasting, television, sewerage, or drainage services.
The term includes works conducted by or for a local government, the Chief Executive Officer of the Department of Main Roads or Queensland Rail or, that are ancillary to or associated with works on or adjacent to a road or rail corridor where works are being carried out."
[668] Both experts agree that whether the land use under the third development application fell within this definition is a question of law for the Court.
[669] Mr Ovenden is of the opinion that the definition did not adequately or correctly describe and encompass the extent of development being applied for. In his experience the definition typically envisages the supply of infrastructure needed to facilitate urban development, generally carried out by or on behalf of local or state government. The definition according to Mr Ovenden does not contemplate an entrepreneurial proposal by a private company on private land to make a private commercial profit. His opinion is that the ability to serve the public, does not mean that the airport will derive a public character. The effect of the land use being categorised under this definition of "utilities public" was that the development application was code assessable rather than impact assessable. Mr Schomburgk's view is that the definition expressly contemplates air transport. In his opinion, the definition includes utilities that are intended for the general public, such as transport facilities, which include an airport, because public airports (as Wellcamp Airport is) also provide an essential public service/facility.[503] Mr Schomburgk further states:
"While it is true that a code assessment does not provide the assessment manager with the full range of criteria against which to assess an application (as distinct from an impact assessment application, where the whole of the planning scheme is able to be considered), the IDAS process nevertheless allows an assessment manager to seek whatever information it may require to properly assess the potential impacts of any specific proposal."[504]
[670] I accept Mr Schomburgk's construction of the definition of "utilities - public". The relevant definition not only expressly refers to "air transport", it also contemplates other major infrastructure, such as a harbour. Mr Ovenden accepted a harbour was a major undertaking and one that is high impact.[505] He also accepted that it is immaterial whether a harbour was public or private. The definition therefore contemplates large scale undertakings such as a harbour, which also would be only code, rather than impact assessable.
[671] The second area of disagreement between the experts is whether there were restrictions pursuant to the approvals on aircraft type or seating. The experts disagree that the use of the airport remained restricted by Condition 9 in the Toowoomba Regional Council's decision notice, dated 25 January 2013, relating to the third development application. Condition 9 stated:
"The approved use is to be generally in accordance with the proposed 'Stage 1 - Start Up' description outlined in the TRC Information Request Response Volume 1 prepared by Precinct Planning and received by Council on 22 October 2012 unless modified by the conditions of this approval and must not include any of the following uses:
(b) Warehouse (as defined in the Jondaryan Shire Council Planning Scheme 2005 (amended 2009));
(c) Overnight storing of trucks, buses, taxis or other road transport vehicles, or aircraft; and
[672] It is not in dispute that the eighth development application lodged in February 2014 sought approval to expand the operational parameters to accommodate all aircraft types and aircraft having varying seating capacity, thereby precluding any restrictions on aircraft type or seating capacity. Both experts agree that for a period, the applicant was locked into the Stage 1 limitations. According to Mr Schomburgk, the limitations lapsed after two years because it was a sunset provision. Mr Ovenden opines, however, that there is nothing in the condition or in the decision notice which states that the condition lapses after two years, and thus the airport operations remained limited to 50-seater aircraft until the eighth development application, which was lodged on 19 February 2014.
[673] The issue is, in my view, a technical one. To the extent that any restrictions as to aircraft type and seating required clarification, such clarification was obtained by the approval of the eighth development application. In any event, as correctly submitted by the plaintiffs, there is no evidence of what type of aircraft was flying in and out of Wellcamp Airport between the third and eighth development applications. The defendants did not seek to adduce any evidence that there was aircraft of a size greater than that nominated in the third application and the plaintiffs were not cross-examined about this issue.[506]
[674] The third matter of disagreement between the experts concerns whether the development application process was performed in a piecemeal way, that disguised the final intended scope of the development. The concept of a "piecemeal" application has its genesis in the decision of the High Court in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council.[507] Stephen J identified the relevant issue as "whether an applicant for consent to use land for a particular purpose may make application piecemeal, or must he, on the contrary, apply at the outset for the entirety of the use in question and, consequently, in respect of the whole of the land devoted to that use."[508] By a majority of three to two,[509] the High Court decided that an applicant under the relevant legislation for consent to use land for a particular purpose must apply at the outset for the entire proposed use. Where a change of use is contemplated, the proposed use must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application.
"I refer to the response provided for information request item 1 above. At the direction of Toowoomba Regional Council, certain component uses were removed from the SPS Development Application for the airport terminal as they were deemed to be not necessarily associated with the use of 'Utilities Public' (Airport Terminal). As previously outlined these uses will be subject of a future development application(s). The mezzanine areas referred to will be occupied by a yet to be determined use, however any separately defined use ultimately proposed in this area of the building will be the subject of a future application(s) for development approval."
[676] In cross-examination, Mr Ovenden accepted that prior to the fifth development application the area of the mezzanine was able to be used for airport terminal activities.[510] That is, in the absence of any future development applications, the mezzanine area could lawfully be used for airport terminal activities. As opined by Mr Schomburgk:
"That approach is not uncommon or, in this case, unexpected. We had a new airport being established, and the range of terminal activities for each and every space may well not have been known or foreseen at that time, but it was prudent to build the main terminal building in anticipation of future uses.
In the interim, those spaces can be used for anything that fell within
the term airport terminal. I do not consider that this represents piecemeal development, as I understand that term."[511]
[677] I accept Mr Schomburgk's opinion in this respect. The fifth development application does not, in my view, offend the principle identified in Pioneer Concrete. Even if it did, such contravention is merely a technical town planning consideration which does not assist the defendants in justifying the three imputations.
[678] The final area considered by the experts is whether the present use of the airport as a function centre is in breach of the development approval. Between 13 October 2014 and 15 August 2017 the airport hosted approximately 13 events, including the Trade and Investment Queensland Commissioners' dinner for Toowoomba and Surat Basin Enterprises, as well as events for QantasLink. The plaintiffs admit that these functions were held at the airport but contend that they were charitable events. As an initial observation, it is difficult to appreciate how any such breach of the development approval, even if established, is relevant to the defendants seeking to justify the three imputations.
[679] Both town planning experts agree that, irrespective of whether the function is charitable or not, the airport is not approved as a function centre and even charitable events held there would be in breach of the approval.[512] Both experts, however, agree that the airport holds an approval for a "Food and Drink Outlet". This approval would permit functions that were related to the airport.[513]
[680] The defendants did not lead any evidence as to the nature of the functions held at the Wellcamp Airport. Nor did they cross-examine John Wagner or the other plaintiffs as to the nature of these functions. The cross-examination did not go beyond the fact that there are functions hosted at the airport.[514] The paucity of evidence does not permit the Court to make a positive finding that the plaintiffs, by conducting the particularised functions at the airport, are in breach of the relevant approval. Accepting that these are charitable functions, however, it is difficult to comprehend how any such contravention assists the defendants in justifying the three imputations. Those imputations concern the construction rather than the operation of the airport. To the extent one of the imputations conveyed the meaning that the plaintiffs are "callous and selfish", such an imputation could hardly be justified by reference to the plaintiffs permitting the airport to be used for charitable functions.
Category 5 - the plaintiffs are self-interested and greedy
[682] The only imputation sought to be justified in this category is paragraph 63(a), namely that each of the first, second, third and fourth plaintiffs is a person who knows only two things: self-interest and bullying. This is the same imputation I have already dealt with in relation to Category 3. In their written submissions, the defendants identified two additional imputations, namely paragraphs 63(b) and 63(c), with the same common sting as the one falling within Categories 3 and 5.[515] The defendants no longer seek to justify imputations 63(b) and 63(c), although both are defended on the basis of contextual truth.[516]
[683] The two imputations which the defendants no longer seek to justify convey the following meanings:
- each of the plaintiffs, for his own selfish and greedy purposes, stole airspace above the Oakey Army Base, which will destroy the Oakey Army Base, which trains helicopter pilots, and harm the national defence interest; and
- each plaintiff is a monumental hypocrite, in that he went to Canberra to talk to his mate Ian Macfarlane to stop the destruction of the Borneo Barracks on the ground that they are important for defence, when he is responsible for destroying the Oakey defence base for his own selfish, greedy purposes.
[684] In relation to imputation 63(a), the defendants seek to justify the "bullying" aspect of this imputation by reference to the same true facts that I have already dealt with under Category 3. As the defendants have failed to establish the substantial truth of the "bullying" aspect of this imputation, it follows that they have failed to justify a material aspect of the imputation.
[685] The defendants seek to justify the "self-interest" aspect of the imputation not by reference to the conduct of each of the four plaintiffs, but only by identifying certain conduct on the part of the second plaintiff, John Wagner, and the third plaintiff, Neill Wagner. The relevant conduct upon which the defendants rely to justify the imputation is:
- (a) John Wagner's "public speech boasting of environmental destruction"; and
- (b) Neill Wagner's "unlawful landing of a helicopter".
[686] As to the matter concerning John Wagner, the defendants submit:
"Following the construction of the airport, the second plaintiff spoke in boasting terms during a session at the 2015 Sir Thomas McIlwraith Lecture about the destruction of the environment during the course of construction of the airport."[517]
"During a question and answer session, the second plaintiff was asked about the development of the airport and said, using words to the effect that when advised by the Commonwealth Government's Department of Environment that an environmental impact statement would be required, he told them that the wildlife was all gone, that everything on the property had been knocked down and that there was nothing left. In doing so, the second defendant evidenced his acts of self-interest and greed in a public demonstration of satisfaction in the destructive process adopted."[518]
[687] Exhibit 4 is a short extract of a video entitled "Australian Institute for Progress - Wellcamp Airport - Handling the last minute environmental hurdles". In the video John Wagner appears to be responding to a question. He refers to the person he was dealing with in CASA as being away for a period of 10 months. Upon this person's return and approximately three weeks before the opening of the Wellcamp Airport, the CASA representative informed John Wagner that the matter had been referred to the Federal Department of Environment under the EPBC Act. Mr Wagner travelled to Canberra where he met with the CASA representative and the "environmental people". He recounts that at this meeting the government representatives raised matters such as the Barrier Reef, snails, fish and birds. Mr Wagner informed the representatives that Wagners had already knocked down everything for the purpose of constructing the airport and that the airport was nowhere near the Great Barrier Reef.
[688] In my view, Mr Wagner's statement does not evidence "self-interest". Mr Wagner is conveying to the audience how he dealt with government representatives in relation to a suggested last minute referral under the EPBC Act. The fact that the construction of the Wellcamp Airport had largely been completed without any previous suggestion of a reference under the EPBC Act does not, within that context, support the defendants' submission that Mr Wagner's statement evidences self-interest. Mr Wagner denied that it did:
"No, I don't think that's actually the case because what actually happened in relation to this is that the airport was just about built, from memory, and the site had been totally cleared when CASA referred it to the Department of Environment and Heritage, so it was an absolute nonsense. So you couldn't help but be amused by the fact that you sit with bureaucrats and they want to talk about the Barrier Reef and what effect it's having on the Barrier Reef when you're sitting up at 2,000 feet on the western side of the Great Divide. So that's how ridiculous it was and it was, actually, a laughable situation, which they ultimately agreed with, 10 months after construction had started."[519]
[689] Mr Wagner in the passage quoted above places his statement into its proper context. Within that context his statement does not evidence self-interest.
[690] The allegation in relation to Neill Wagner is that he unlawfully landed a helicopter at Downey Park in Brisbane on 22 March 2015. Mr Wagner explained the circumstances of this event. He was flying five passengers including his son from Toowoomba to Ballymore. His son had a training session at Ballymore. Mr Wagner had obtained permission to land at Ballymore. Ordinarily the flight would take 30 to 35 minutes. As he was entering controlled airspace he lodged his flight plan and sought clearance to enter the controlled airspace around Brisbane International Airport. He encountered some weather, including cloud. This required him to remain outside controlled airspace. Mr Wagner then went into a holding pattern, which required him to perform circles at 150 kilometres an hour for approximately 10 minutes. He again sought permission to enter controlled airspace and was informed that he needed to continue to hold. Once he was granted permission to land at Ballymore, he observed that there were children on the field which prevented him from landing. Mr Wagner was starting to feel fatigued so he landed at Downey Park, which is approximately 150 metres away from Ballymore.[520] Downey Park was controlled by the Brisbane City Council. Mr Wagner did not have permission from the Council to land the helicopter at Downey Park. Mr Wagner left one of the passengers with the helicopter and proceeded to Ballymore where he watched his son train.
[691] Approximately 12 months later, in February 2016, Mr Wagner received a summons to appear in the Magistrates Court at Brisbane on a charge of undertaking a prohibited activity contrary to s 71 of the Public Land and Council Assets Local Law 2014 (made under the City of Brisbane Act 2010 (Qld)). A further charge was made under the same local law for Mr Wagner taking off in the helicopter without permission. This second charge was discontinued. Mr Wagner initially pleaded not guilty to the first charge but subsequently changed this plea to guilty and was fined $1,000.
"When air services said, 'You're right to enter into the controlled airspace', and - and the tone of the conversation was, 'Report on the ground', and I took it, 'Get on the ground as quick as you can, because we've got other traffic in the - in the area.'"[521]
[693] In cross-examination Mr Wagner was very frank that he used the helicopter because he personally wanted to see his son train:
"MR ANDERSON: So you could - okay. So if you weren't interested in going, they would have driven themselves?
NEILL WAGNER: I may have driven, I may have flown. It was my choice on the day.
MR ANDERSON: Right. In any event, that's a - you know, that was your personal self---?
NEILL WAGNER: Yeah, yeah, it was a - it was a private - private flight.
MR ANDERSON: Yeah. It was just a personal, self-interested decision to do it that way?
MR ANDERSON: Similarly, to land it in the park on the other side of - to land in Downey Park on the other side of the creek - the other side of Breakfast Creek, that was your choice?
MR ANDERSON: And your decision to leave the helicopter there so that you could watch your son train was your choice?
[694] The defendants submit that the illegal landing by Neill Wagner at Downey Park was a choice he made which displayed "self-interestedness". Further, his decisions to land in Downey Park and to initially plead not guilty to the charges "are a demonstration of the selfishness or self-interestedness that the second defendant referred to in his broadcast."[523]
[695] The difficulty with the defendants' submission is that even if these actions of Neill Wagner evidence self-interest, the pleaded imputation which the defendants must establish as substantially true is that each of the plaintiffs is a person who knows only two things: self-interest and bullying. Such a meaning cannot be justified merely by a reference to an isolated act even if that act is thought to be motivated by self-interest.
[696] In any event, it is not the use of a helicopter to take his son to a training session at Ballymore that is the alleged self-interested act. It is the illegal act of landing on Brisbane City Council property that is said to demonstrate self-interest. In my view, it does not. Mr Wagner had permission to land at Ballymore. He gave a full explanation as to why he landed at Downey Park rather than at Ballymore. His decision to land at Downey Park rather than Ballymore involved a number of considerations including weather, having been placed in a holding pattern, fatigue, communications with Air Services, and his observation that there were children on the field at Ballymore where he had permission to land. While his actions were illegal, they are explicable by factors which have nothing to do with Mr Wagner acting out of self-interest. There is no suggestion that Mr Wagner breached any aviation regulations or compromised aviation safety. He had clearance to enter a controlled airspace.[524]
[697] The defendants have failed to establish the substantial truth of the Category 5 imputation.
Defence of fair report of proceedings of public concern - section 29 of the Act
[698] The defendants rely on the defence of fair report of proceedings of public concern contained in s 29 of the Act in respect of the Twenty-Third, Twenty-Fourth, TwentyFifth, Twenty-Seventh, Twenty-Eighth, Twenty-Ninth, Thirtieth, Thirty-First, Thirty-Second, Thirty-Third and Thirty-Fourth Matters. As I have found that the TwentyFourth Matter did not convey the pleaded imputations[525] the defence is only relevant to 10 of the matters complained of.
[699] Section 29 relevantly provides:
"29 Defences of fair report of proceedings of public concern
(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.
(2) It is a defence to the publication of defamatory matter if the defendant proves that -
(a) the matter was, or was contained in, an earlier published report of proceedings of public concern; and
(b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and
(c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.
(3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or for the advancement of education.
(f) any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country ..."
[700] The parties accept that the Grantham Floods Inquiry was a proceeding of public concern. The defence in relation to the 10 matters complained of raise for consideration the following two issues:
- (a) Were each of the matters a fair report of the Grantham Floods Inquiry?
- (b) If so, were the matters published honestly for the information of the public?
[701] There is no dispute as to the relevant legal principles:
- (a) fairness, in the context of the defence reflects upon the accuracy of the report, and not on the manner in which it speaks of the plaintiffs. It must be substantially accurate and convey to the recipient an impression of the event not substantially different from the impression the recipient would have received had he or she been present during the proceeding;[526]
- (b) errors are permitted. However, they should not substantially alter the impression that the listener would have received had that person been present in the proceeding;[527]
- (c) a matter does not constitute a fair report merely because it repeats information obtained from the proceeding of public concern. There must be a requirement of attribution, that is, the matter must appear to bear the character of a report of the proceedings in question;[528]
- (d) it is also essential that the matter said to constitute a fair report be substantially accurate and not contain omissions or inaccuracies that result in the impression or effect that the actual proceedings are being substantially misrepresented in a manner that defames the plaintiff;[529] and
- (e) the intermingling of extraneous material may detract from an assessment that a report of proceedings is a fair and accurate report. The quality of fairness in a report may be lost by an excessive intermingling of extraneous material. Whether the extraneous material is sufficient to do this is a question of fact and degree. If the extraneous material is excessive and cannot be distinguished from the report of the proceedings, the report will not be privileged.[530]
[702] In my view, the defence fails at the threshold as the relevant 10 matters complained of are not fair reports of the Grantham Floods Inquiry.
"(a) The Twenty-Fifth Matter contained a fair report on the progress of the GFCI including a summary of evidence given by several of the Grantham residents;
(b) The Twenty-Seventh Matter contained a fair report of the fact that the GFCI, called by the Premier, had begun, and summarised the evidence given by several Grantham residents;
(c) The Thirtieth Matter contained a fair report of the first plaintiffs' evidence at the GFCI public hearings."[531]
[704] These submissions merely assert conclusions and do not assist the Court in determining whether the defendants have discharged their onus of establishing that each of the 10 matters complained of was or was contained in a fair report.[532]
[705] The Court cannot overcome the conclusory nature of the defendants' submissions by comparing the broadcasts of the relevant matters complained of with a transcript of what is said to be reported. No such comparison can be made in the present case because the defendants have failed to tender into evidence the transcripts of the Grantham Floods Inquiry apart from the evidence of the first plaintiff, Denis Wagner. As correctly submitted by the plaintiffs, this failure means that there is no evidentiary basis for the Court to engage in the task of assessing whether the relevant matters are truly fair reports.[533]
[706] Even without being able to undertake such an assessment, I am of the view that each of the 10 relevant matters was not a fair report of the Grantham Floods Inquiry proceedings.
[707] I have already analysed each of these broadcasts above in determining whether the pleaded imputations were conveyed. Without repeating this analysis, the following points may be made in respect of each of the 10 matters:
- (a) I deal with the Twenty-Third Matter in [294] to [303] above. The Twenty-Third Matter was a broadcast made on 20 July 2015 prior to the commencement of public hearings of the Inquiry. Mr Jones commences the broadcast with the words "all hell will break loose in Queensland today". He refers to the Toowoomba based company, Wagners, as "the darlings of the Coalition in Queensland and in Canberra". He then refers to the Wagners in the following derogatory terms: "The mob who built the airport in Toowoomba, remember, without seeking proper approvals". Mr Jones asserts that the Wagners were "gifted Oakey airspace. Gifted. A national asset handed to a private company for nothing." The reference to the airport is wholly extraneous to any fair report of what is expected to occur at the Inquiry. In the course of the broadcast Mr Jones makes the following three statements:
● "Well, they had the rights to mine the quarry at Grantham. But one of the conditions was pretty simple: quote condition four; over-burden is not permitted to be stockpiled so as to form a levee bank. It's there in writing in front of me. Well, the argument will be that this over-burden, this rubbish, not wanted, was stockpiled, creating a massive wall alongside the quarry."
● "Wagners have said it was part of the natural landscape ... The weight of water collapsed the embankment and 12 people had no hope. Of course, Wagners couldn't wait to sell the quarry in the same years the floods to Boral. Boral haven't operated the quarry since."
● "Annastacia Palaszczuk has called for an inquiry, which begins today to end the cover up. How did these people die? This will be horrible stuff."
Although Mr Jones describes the assertion that overburden created the wall alongside the quarry as an "argument", the clear impression he creates is that the Wagners have in fact created a wall alongside the quarry. Mr Jones is asserting these statements as matters of fact. As observed above, in listening to the broadcast it becomes apparent that Mr Jones conveys to the listener that what will be argued is true and what the Wagners say is false.[534]
(b) As is evident from my discussion of the Twenty-Fifth Matter in [318] to [331] above, Mr Jones conveys to the ordinary reasonable listener the impression that the outcome of the Grantham Floods Inquiry is a foregone conclusion. That conclusion is that a man-made wall built by the Wagners at the quarry had burst creating a surging wall of water which resulted in the Grantham Flood event. Additionally, Mr Jones makes an extraneous derogatory remark that "Rumour has it of course that they [the Wagners] have problems with their airport, unable to make a quid."
(c) I deal with the Twenty-Seventh Matter in [338] to [349] above. In the TwentySeventh Matter Mr Jones makes references to the Wagners as being "the darlings of the Coalition in Queensland and Canberra. The mob who bought the airport at Toowoomba without seeking approvals and then were gifted Oakey airspace, gifted a national asset, handed over to a private company. They thought they could please themselves, that the world ran according to their dictates." These statements are extraneous to any reporting of the proceedings of the Grantham Floods Inquiry. Far from being a fair report of the proceedings, the delivery of this broadcast by Mr Jones conveys to the ordinary reasonable listener that the Grantham Floods Inquiry will find as a foregone conclusion that the Wagners are culpable.
(d) I deal with the Twenty-Eighth Matter in [350] to [360] above. In the Twenty-Eighth Matter, Mr Jones commences the broadcast by informing the listener that Mr Sofronoff QC had suspended the Grantham Floods Inquiry "due to quite unforeseeable circumstances". He refers to the next witness to be called, John Gillespie, whose evidence "will be red hot". Having summarised what Mr Gillespie and another witness Patrick Gallagher will say, Mr Jones states: "So much for the natural features of the landscape rubbish that Wagner goes on about. Word is out that the inquiry's going to call Denis Wagner up as early as Wednesday". Mr Jones then raises the topic of bullying of potential witnesses in the context of the allegation that Denis Wagner had been observed outside Mr Pinkerton's house in Grantham. Mr Jones finishes the broadcast by stating that "they're not going to escape the scrutiny that must apply ... I'll keep you posted on that Grantham thing - it's just appalling and the cover-up is being uncovered. And there will be no escape for some. None."
"MR SOFRONOFF: Over the course of the last four years since the flood, as everybody knows, there have been allegations made that I'm to investigate in this Commission concerning the significance of the quarry to the flood, and it's been publicly stated that a lot of people believed that the quarry had something to do with, or had a lot to do with the consequences to Grantham. How has that affected you?
DENIS WAGNER: We, as a family, suffered somewhat by the flood, being part of this community, so it had an impact on us. It certainly had an impact on our business.
MR SOFRONOFF: When I say 'washed away', it certainly filled it and no doubt - what about the machinery, was it---?
DENIS WAGNER: Yes, there was a lot of machinery that was rendered inoperable after that, several trucks end loaders. However, I would say that after sitting through these hearings for the last week, I have heard some very inspirational stories.
MR SOFRONOFF: You're quite right, and property is nothing in that context?
DENIS WAGNER: Yes, that's right. I've probably sort of heard some stories that don't ring true as well in the last week, but there is some inspirational stories from the people of this region. I, and the family, our family, have sympathy, you know, for those people that were affected, and particularly those that lost relatives and friends, so, you know, it's harrowing stuff."
The day after this evidence was given, Mr Jones broadcast the following statement:
"Does Mr Wagner understand that these personal stories about what happened to Grantham people, during the flood, were given under oath? Now Wagner is saying they didn't ring true. He said his family had suffered from the flood, and his business had been impacted. Is he serious? A family worth millions, with a private jet and a chopper, which lives in Gone With the Wind style, and they're saying they suffered? And 12 people died. Lost their lives. What kind of selfish, insensitive grubs are these people?"
These statements made by Mr Jones in the course of the broadcast constituting the Thirtieth Matter do not accurately express or summarise the evidence given by Denis Wagner to the Inquiry. By his statements Mr Jones has substantially altered the impression that the listener would have received had that person been present at the Inquiry. In my view, not only is the impression substantially altered, Mr Jones by his statements creates a false impression. Mr Jones' statements ignore the effect of Mr Wagner's evidence accurately summarised by Mr Sofronoff QC: "You're quite right, and property is nothing in that context". The omission of this clarification by Mr Jones renders the Thirtieth Matter a wholly inaccurate report of Mr Wagner's evidence.
(g) I deal with the Thirty-First Matter in [386] to [396] above. This is not a fair report of the proceedings before the Inquiry. Although some of the words used by Mr Jones suggest that the outcome of the Inquiry is unknown, when listened to as a whole, including the delivery and content of the broadcast, what is conveyed is that the Wagners' culpability, which has been the subject of a cover-up, will be exposed. In the course of the broadcast Mr Jones asks his listeners, "[W]hy were some people being protected?" Mr Jones invites the listener to speculate as to who was being protected. This is in the context of recounting Denis Wagner's evidence to the Inquiry. Mr Jones refers to the Channel Nine video showing the quarry wall and that the video "makes it clear there's not a single doubt as to what happened at Grantham". He tells his listeners, "This is a scandal, make no mistake".
(h) I deal with the Thirty-Second Matter in [397] to [413] above. The Thirty-Second Matter is an interview between Mr Jones and Ms Gearing. While some aspects of the proceedings before the Inquiry are touched upon, the broadcast is not a report of those proceedings. The topics covered in the course of the interview include Ms Gearing entering the quarry with Mr Koch and a photographer in May 2011 for the purposes of taking photographs because large sections of the remaining embankment at the quarry were being removed. Mr Jones also refers to there being a cover-up: "... it's a big headline in the Courier Mail at the weekend, Walter Sofronoff QC, has not heard a shred of evidence of cover ups or criminal wrongdoings by police. Well, that's a judgement yet to be handed down, the premiers, the Wagners or anybody else." The impression created by Mr Jones is that the statement in the Courier Mail article is inaccurate and that in fact there will be some form of judgment handed down which does contain evidence of cover-ups involving the Wagners.
(i) I deal with the Thirty-Third Matter in [414] to [424] above. The broadcast concerns the Grantham Floods Inquiry and a hydrology report which Mr Jones states "was leaked last week". The finding of that hydrology report was that the quarry did not contribute to the disaster. Having stated the conclusion of the report Mr Jones tells his listeners, "Believe that and you'll believe anything". Mr Jones follows this by summarising the opening statements of the legal representatives for the victims to the Inquiry. These statements are to the effect that the quarry did contribute to the disaster when a wall burst sending a large influx of water into Grantham. The statements made by Mr Jones in the course of this broadcast create the impression that the leaked hydrology report cannot be believed.
"It is a defence to the publication of defamatory matter if the defendant proves that -
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantial; and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations."
[710] In Nationwide News Pty Ltd v Weatherup[536] Applegarth J (with whom Fraser JA and Douglas J agreed), explained the purpose of the defence:
"[44] Section 26 creates a defence which allows a defendant to rely upon imputations arising from the matter which are additional to, and differ in substance from, the defamatory imputations of which the plaintiff complains. The defence is established if those additional contextual imputations are substantially true, and if the defamatory imputations of which the plaintiff complains 'do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations'.
[45] The defence of contextual truth exists to permit a defendant to prove that the substantial truth of more serious contextual imputations resulted in no further harm being done to the plaintiff's reputation by the imputations upon which the plaintiff succeeds. It addresses a defect in the common law. The rationale for the section is to deny a plaintiff an entitlement to recover damages where the plaintiff has selected, and succeeded in establishing, a less serious imputation than the more serious imputation which the defendant selects and is able to prove are substantially true. In such a case, the defendant's justification of the more serious imputation may establish that the plaintiff's reputation was not actually harmed, as the plaintiff alleges, by the less serious imputation."
[711] The defendants seek to establish this defence in relation to the Ninth, Tenth, Eleventh and Twenty-Seventh Matters to the extent that these four matters conveyed the following imputations:
- (a) Ninth Matter: that the plaintiff was a callous and selfish person in that he built an airport without an environmental impact statement, a health impact statement, a community impact statement, a water impact statement, and without any compensation for people living in hopeless proximity to the airport;
- (b) Tenth Matter: the plaintiff built an airport without seeking approvals which he knew were required with disgraceful disregard for the interests of the community;
- (c) Eleventh Matter: that the plaintiff built the infamous Wellcamp Airport in disregard of the interests of the community without first obtaining, as he was required to do, an environmental impact statement, a health impact statement, a community impact statement or a water impact statement, or paying the compensation owing to those adversely affected because they lived in close proximity to the airport;
- (d) Twenty-Seventh Matter: that the plaintiff is a person who thought he could get away with building an airport at Toowoomba without seeking proper approvals, and without having to pay for a national asset, the airspace over Oakey.
[712] The defendants plead that in addition to the imputations relied upon by the plaintiffs, each matter carries the following contextual imputations:
- (a) the plaintiffs conduct business on their own terms, with disregard for the laws that regulate them;
- (b) the plaintiffs conduct business on their own terms, with disregard for the impact operations have on the broader community.[537]
[713] The defendants plead that the contextual meanings are substantially true on the basis of the true facts pleaded in Attachment A to the defence.[538] For the reasons articulated above in [650] to [681], the defendants have failed to establish the substantial truth of the two pleaded contextual imputations. Further, I am of the view that the contextual imputations do not differ in substance from the plaintiffs' defamatory imputations. The sting is identical. As correctly submitted by the plaintiffs, the fact that the defendants seek to justify the contextual imputations by reference to the same pleaded true facts as the plaintiffs' defamatory imputations demonstrates that the contextual imputations do not differ in substance.
Failure to accept reasonable offer to make amends - section 18
"Effect of failure to accept reasonable offer to make amends
(1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if -
(a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory; and
(b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and
(c) in all the circumstances the offer was reasonable.
(2) In determining whether an offer to make amends is reasonable, a court -
(a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account -
(i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published; and
(ii) the period that elapses between publication of the matter in question and publication of the correction or apology; and
(i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried; and
(ii) any other matter that the court considers relevant."
[716] The defendants made an offer to make amends on 27 November 2015. The offer was made within 28 days of receipt of service of these proceedings and was made on behalf of all of the defendants. There is no issue therefore that the defendants made an offer to make amends as soon as practicable after becoming aware that the matters were or may be defamatory. The issue is whether, in all the circumstances, the offer was reasonable.[541]
[717] The letter of 27 November 2015 relevantly states:
"Our clients' position is that at all times Mr Jones was concerned that there were unanswered questions in relation to Grantham and an inquiry was needed. When that report was handed down, our clients accepted, reported on and commented on those findings without adverse comment to your clients. To the extent that any of the broadcasts go beyond expressing that concern and are defamatory of your clients, please pass on to your clients our clients' apology and regret.
If this offer is accepted, our clients will comply with section 15(1)(e) of the Defamation Act and take reasonable steps to inform any person, to whom any particular material containing the matters complained of has been given, that the matter may be defamatory of the Wagners.
In accordance with Division 1 of Part 3 of the Defamation Act, our clients offer to resolve your clients' complaint on the following basis:
This letter is made without prejudice in accordance with Section 13 of the Defamation Act. We note as a matter of courtesy to you and your clients that should your clients decline to accept this offer to make amends and continue proceedings, our clients will rely on this offer to make amends as a defence to the claim and, in the alternative, by way of offer to make amends as a defence to the claim and, in the alternative by way of mitigation. We draw your attention to Section 18 of the Defamation Act 2005 in that regard."[542]
[718] Attachment "A" to the letter is the draft retraction/apology. It states:
"I have spoken to you many times concerning the plight of the people of Grantham following the severe flooding of 11 January 2011 which caused vast property damage but, more importantly, the deaths by drowning of 12 people. I was at the forefront of calls for an inquiry into the cause of the flood and why it had had such a devastating effect and caused an unprecedented loss of life.
There are some things we will never know about the flooding but we now have a detailed report as to many matters that previously had been uncertain or unknown. Commissioner Sofronoff in the Grantham Floods Commission of Inquiry report found that the Wagner quarry on the outskirts of Grantham, and in particular a quarry wall he found was built by Wagners, did not contribute significantly to the tragic deaths that occurred on that day, but were rather the result of the weather event that caused the floods.
It is fair to say that I was extremely concerned by the building of the quarry wall and the role local residents believed it had played in exacerbating the flooding when it collapsed under the vast weight of water that built up behind it. In fact, locals reported to me that they had heard a huge bang and reported a wall of water surging down into the township of Grantham and they believed that the quarry wall had been a significant factor. These locals wrote to me and others begging for the matter to be reopened after only one and a half pages were dedicated to Grantham in the Queensland Floods Commission of Inquiry report.
I had been critical of the failure, of that earlier Inquiry, to investigate this matter. I had also been critical of the conduct of the Wagner family. They have asserted that some of my broadcasts amounted to defamation of them.
While I spoke out on these issues regularly, I did so due to my genuine concern as to the treatment of the victims and survivors of Grantham and the fact that, prior to the Sofronoff report, they had not received the answers they deserved. My comments were made in good faith but I accept that I was highly critical of the Wagners.
I was also highly critical of the Wagners in relation to an airport they built in Toowoomba. The Wagners have claimed that I alleged the airport was illegal. Of course, those of you who listen to me regularly know that my concern was not the legality of the airport. My concern was about the government processes which allowed it to be built. To the extent that any of my broadcasts suggested that the airport was illegal I am fully prepared to retract that suggestion. It was approved by the local council and given approval by all the necessary regulatory bodies and is now fully operating.
To the extent that the Wagners believe I have defamed them in relation to any of these issues, then I apologise to each of them for that."[543]
[719] In Zoef v Nationwide News Pty Ltd[544] Gleeson JA (with whom Ward and Payne JJA agreed) considered this defence. His Honour noted that the reasonableness of an offer of amends is determined objectively.[545] His Honour agreed with the observation of McCallum J in Pedavoli v Fairfax Media Publications Pty Ltd:[546]
"The reasonableness of any monetary offer is necessarily informed by the reasonableness of the correction, including the extent of its reach. To adopt any different approach would subvert the object of the Act of encouraging the non-litigious resolution of defamation disputes."[547]
"Nonetheless, as McCallum J also noted, this is not to deny that 'the seriousness of the defamation undoubtedly remains a relevant factor in assessing the reasonableness of the monetary component of an offer.'
It should be accepted that the assessment of the adequacy of the sum offered is informed by the seriousness of the defamation and the other components of the offer, including any proposed apology, and the fact that acceptance of it would have made amends and obviated the need for a trial. In addition, the adequacy of the monetary offer is informed by the risk of the proceedings being successful, taking into account the defences raised by the defendant."[548]
[721] In my view, determined objectively, the offer of amends was not, in all the circumstances, reasonable. The 32 matters complained of were broadcast over the period 28 October 2014 to 20 August 2015. The matters conveyed very serious defamatory imputations. These imputations included that the plaintiffs were culpable for the deaths of 12 people in Grantham and were involved in a cover-up of their culpability for these deaths. This cover-up included the plaintiffs conspiring with high level politicians. The imputations also conveyed defamatory meanings that the plaintiffs engaged in conduct that was corrupt, bullying and intimidatory. In this context, the offer of $50,000 for each plaintiff was grossly inadequate. This assessment remains unchanged when one considers the inadequacy of the suggested apology. The defendants submit that the monetary compensation offered was adequate when one has regard to the other components of the offer which included a "fulsome and very public apology".[549] I do not accept that the suggested apology was "fulsome". The plaintiffs submit that the proposed apology was "woefully inadequate; indeed it was not an apology at all".[550] The plaintiffs refer to the following passage from Spencer Bower_, A Code of the Law of Actionable Defamation_:[551]
"The terms of the apology must obviously be a factor in determining the question whether it is full and frank, or reserved and dubious; whether it covers the whole of the libel, or leaves behind any suggestion of insinuation. The terms may not only be thought inadequate, but so disingenuous or insulting, as to amount, if not to a repetition of the offence, at least to something which would justify an enhancement of the damage."
[722] The plaintiffs submit and I accept that while this passage is not precedent, its contentions are compelling.[552]
[723] The draft apology commences by identifying Mr Jones' role in calling for an inquiry into the cause of the Grantham Flood event. In the second paragraph reference is made to the finding of Mr Sofronoff QC, namely "that the Wagner Quarry on the outskirts of Grantham, and in particular a quarry wall he found was built by the Wagners, did not contribute significantly to the tragic deaths that occurred on that day, but were rather the result of the weather event that caused the floods". In introducing this finding, however, the words proposed to be broadcast are:
"There are some things we will never know about the flooding but we now have a detailed report as to many matters that previously had been uncertain or unknown."
[724] The apology then refers to locals reporting to Mr Jones that they had heard a huge bang and reported a wall of water surging down to the township of Grantham, and that they believed that the quarry wall had been a significant factor. Nowhere in the apology does Mr Jones acknowledge that the broadcasts were defamatory of the Wagners. The apology refers to the Wagners in these terms:
- "They have asserted that some of my broadcasts amounted to defamation of them."
- "My comments were made in good faith but I accept that I was highly critical of the Wagners."
- "The Wagners have claimed that I alleged the airport was illegal. Of course, those of you who listen to me regularly know that my concern was not the legality of the airport."
- "To the extent that any of my broadcasts suggests that the airport was illegal I am fully prepared to retract that suggestion."
- "To the extent that the Wagners believed I have defamed them in relation to any of these issues, then I apologise to each of them for that."
[725] I accept the plaintiffs' submission that the apology does not contain an expression of regret by the defendants for the publications, nor does it contain an unqualified acknowledgment of the falsity of the defamations and a withdrawal of them. As submitted by the plaintiffs, the apology "sought to subordinate the gross defamation of the Wagner family to mere matters that the family have 'asserted' and 'believe'."[553]
[726] Given the very serious nature of the defamatory imputations, viewed objectively, the defendants faced considerable difficulties in establishing any of the pleaded defences. This is to be contrasted with the position of the plaintiffs who faced little risk in establishing that the matters complained of were of and concerning each of them and conveyed defamatory imputations that were very serious.
[727] The defendants submit that in respect of the assessment of the adequacy of the monetary amount offered, the aggravating factors now relied upon by the plaintiffs are much more extensive than what had been pleaded at the time the offer to make amends was made.[554] While this may be accepted, the offer of $50,000 for each plaintiff in the context of the draft apology was, in my view, wholly inadequate irrespective of any consideration of the additional aggravating factors.
[729] As the defendants have failed to establish any defence to the publication of defamatory matter and as damage to reputation is presumed, there must be an award of damages in favour of each plaintiff.
[730] I have determined that in relation to the 32 matters complained of, the Twelfth, TwentySecond and Twenty-Fourth Matters did not convey the pleaded imputations. Of the remaining 29 matters complained of, I have determined that 76 of the pleaded imputations are conveyed and a further four imputations not substantially different from the plaintiffs' pleaded meanings were also conveyed.
[731] As to the Eleventh Matter complained of, I have determined that imputation (c) is conveyed only by 2GB and Mr Jones, and in the result the plaintiffs' claim against the fourth defendant, Mr Cater, is dismissed.
[732] As to the remaining 29 matters complained of, 2GB and Mr Jones admit responsibility for the publication of 27 of the matters, and 4BC and Mr Jones admit responsibility for the publication of the Fifth and Sixth Matters.
[733] Section 39 of the Act provides that if the court in defamation proceedings finds for the plaintiff as to more than one cause of action, the court may assess damages in a single sum. Pursuant to s 8, a person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter. In the present case each plaintiff has 27 separate causes of action against 2GB and Mr Jones and two separate causes of action against 4BC and Mr Jones. Damages may therefore be assessed as a single sum for each plaintiff in respect of the publication by 2GB and Mr Jones of the 27 matters complained of (apart from the Fifth and Sixth Matters) and as a single sum for each plaintiff in respect of the publication by 4BC and Mr Jones of the Fifth and Sixth Matters.
[734] Although some imputations conveyed are only of and concerning the first or second plaintiffs, none of the parties submitted that in assessing damages the Court should seek to distinguish between individual plaintiffs on this basis.
[735] Each plaintiff claims compensatory damages for defamation to:
- (a) vindicate his reputation;
- (b) compensate him for the distress and embarrassment caused by the publication of the imputations conveyed by the matters complained of;
- (c) reflect the extent of publication including the ordinary grapevine effect;
- (d) be sufficient to convince a person to whom the imputations were published or republished of the baselessness of them; and
- (e) provide reparation for the damage to his reputation.[555]
[736] These claims as pleaded, recognise that an award of damages in a defamation case serves three purposes, namely to provide consolation for hurt to feelings, compensation for damage to reputation, and vindication of the plaintiff's reputation.[556] John Dixon J in Wilson v Bauer Media Pty Ltd[557] conveniently summarised the principles relevant to the assessment of general damages:
"(a) ... The assessment of general damages is necessarily imprecise and, accordingly, damages are 'at large' in the sense that they cannot be arrived at through calculation or the application of a formula.[558]
(b) The sum awarded must demonstrate vindication of the plaintiff's reputation. The level of damages ought to reflect 'the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment'.[559]
(c) The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff.[560] The award must be sufficient to convince a bystander of the baselessness of the charge.[561] At common law, it was legitimate to take into account not only what the plaintiff should receive but also what the defendant ought to pay.
(d) Section 34 of the Act requires that the court in determining the amount of damages to be awarded in any defamation proceedings is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.[562]
(e) The extent of publication and the seriousness of the defamatory sting are pertinent considerations.
(f) In determining the damage done to a plaintiff's reputation, the court should also take into account the 'grapevine' effect arising from the publication of the defamatory material.[563] This phenomenon is no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published.[564] It is precisely because the 'real' damage cannot be ascertained and established that damages are at large. It is often impossible to track the scandal and to know what quarters the poison may reach.[565] The award of damages must be sufficient to ensure that, the damage having spread along the 'grapevine', and being apt to emerge 'from its lurking place at some future date', a bystander will be convinced 'of the baselessness of the charge'.[566]
(g) It is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff, and for which a plaintiff is to be compensated by damages.[567] Injured feelings include the hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by the plaintiff.[568]"
[737] The plaintiffs plead that the hurt suffered by each of them has been aggravated by the following matters:
- (a) each plaintiff's knowledge that the imputations conveyed are untrue;
- (b) each plaintiff's knowledge of the refusal of the defendants to retract the imputations or any of them, or to apologise "for their relentless campaign of vilification of each of the plaintiffs".[569]
The plaintiffs further plead[570] that in making the publications complained of the defendants were actuated by malice in that the predominant and improper motive for their publication was to harm the plaintiffs. This allegation is particularised by reference to the matters set out in (c) to (f) below. The plaintiffs rely on these matters in further support of their claim for aggravated damages on the basis that the matters particularised constitute conduct which is improper, unjustifiable or lacks bona fides:[571]
(c) Mr Jones was motivated by a desire to injure the plaintiffs' reputation. Such motivation to injure is to be inferred from the following matters:
(i) the publication of the matters complained of between 28 October 2014 and 20 August 2015 "as part of a campaign of vilification" against each of the plaintiffs;[572]
(ii) the publication, prior to the matters complained of, of a further 53 broadcasts of and concerning the plaintiffs or one or more of them;
(iii) the intrinsically vicious and spiteful wording used in the matters complained of;
(iv) the fact that Mr Jones failed to make any or any adequate enquiry of the plaintiffs or any persons who could have informed Mr Jones, and therefore 2GB and 4BC, of the falsity of the imputations;
(v) the failure of Mr Jones to make contact with the plaintiffs to ascertain their responses to the allegations made in the matters complained of;
(vi) the failure by Mr Jones to inform the plaintiffs of his intention to publish the matters complained of, or to allow the plaintiffs any opportunity or adequate opportunity to challenge the allegations contained in them;
(vii) Mr Jones' reliance on Heather Brown for information, a person who he knew or ought to have known was hostile towards the plaintiffs.
(d) the unjustifiable plea in the Defence filed on behalf of the defendants that the imputations as pleaded in the statement of claim are substantially true in circumstances where the defendants have no proper basis to advance a defence of truth or contextual truth;
(e) when publishing the matters complained of (apart from the Fifth and Sixth Matters) 2GB and Mr Jones:
(i) to their knowledge had no or no sufficient factual basis to publish the imputations conveyed;
(ii) further or alternatively, knew or had reason to believe that the imputations particularised in the proceedings were false or were and are recklessly indifferent to the truth or falsity of the imputations conveyed such that 2GB and Mr Jones were and are wilfully blind to the truth or falsity of those imputations;
(f) when publishing the Fifth and Sixth Matters complained of, Mr Jones and 4BC:
(i) to their knowledge had no or no sufficient factual basis to publish the imputations conveyed;
(ii) further or alternatively, knew or had reason to believe that the imputations were false or were and are recklessly indifferent to the truth or falsity of the imputations such that Mr Jones and 4BC were and are wilfully blind to the truth or falsity of those imputations.
[738] In addition to the pleaded matters (a)-(f) above, the plaintiffs in their written submissions further allege that throughout the proceeding, the defendants have acted in an improper and unjustifiable manner that is lacking in bona fides and which has increased the harm suffered by each plaintiff. This conduct includes the following:
- (g) each of the defendants have failed, or refused to apologise to the plaintiffs despite being unable to justify the allegations they have made about the plaintiffs and in circumstances where the defences are clearly hopeless. That an apology is called for is, according to the plaintiffs, self-evident;
- (h) the defendants have pleaded and persisted with a variety of justification defences even though it must have been clear that they would fail, even on the very scant particulars provided. None of these defences should have been pleaded, let alone maintained. It must have been obvious to the defendants at all times that none of their defences in this proceeding was of any merit whatsoever;
- (i) in Mr Jones' evidence he gratuitously attacked the plaintiffs' reputations and repeated many defamatory assertions, often in answers that bore no connection with the questions he was asked;
- (j) the conduct of Mr Jones discovered during the proceeding whereby he had an email exchange with the Chief Executive Officer of Qantas, Mr Alan Joyce. The plaintiffs submit that the inference to be drawn from this email exchange is that Mr Jones was motivated by a desire to injure the plaintiffs and their business by ensuring that Qantas did not fly into the Wellcamp Airport.[573]
[739] The plaintiffs' pleaded claim for aggravated damages reflects the principles identified by the High Court in Triggell v Pheeney[574] and Carson v John Fairfax & Sons Ltd.[575] In Carson Brennan J stated:
"Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant. Conduct of the defendant from the time of publication until verdict (including conduct at the trial ...) is relevant. In Broome v Cassell & Co Lord Reid, speaking of the bracket within which any sum could be regarded as not unreasonable compensation, said:
'It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.'
Evidence of the defendant's conduct is admissible also in proof of malice."
[740] Brennan J's reference to conduct being admissible in proof of malice must be understood in the context of s 36 of the Act which provides:
"State of mind of defendant generally not relevant to awarding damages
In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff."
[741] In Carson, Brennan J considered a similar provision, being s 46(3)(b) of the Defamation Act 1974 (NSW). His Honour observed:
"Evidence of the defendant's conduct is therefore relevant and admissible on the issue of compensatory damages, whether or not it tends to prove malice, but only so far as that conduct exacerbates or ameliorates the consequences of the original publication or the plaintiff's injured feelings."[576]
[742] Conduct of a defendant which is improper, unjustifiable or lacking in bona fides is a basis upon which aggravated damages are awarded. Such conduct does not have to be malicious.[577] The relevant conduct, however, must affect the harm sustained by the plaintiff either by increasing the injury to the plaintiff's feelings or the injury to the plaintiff's reputation. As observed by Applegarth J in Cerutti:
"Thus malice or a reckless indifference to the truth or falsity of the publication does not warrant, of itself, an award of aggravated damages. However, if the plaintiff is aware of the defendant's state of mind and this aggravates the plaintiff's hurt feelings, then damages may be increased in order to appropriately compensate."[578]
[743] Where conduct of a defendant which is improper, unjustifiable or lacking in bona fides is established, an increase to a plaintiff's sense of hurt may be presumed from all the evidence.[579]
[744] The failure to publish a retraction or an apology may make an award of aggravated damages appropriate if it amounts to a continuing assertion of the defamatory imputations.[580]
[745] A damages award is not usually broken down into components for pure compensatory damages and aggravated compensatory damages.[581]
(c) The plaintiffs' reliance on 53 prior broadcasts
[746] As is evident from the plaintiffs' pleaded claim for aggravated damages, the plaintiffs seek to rely on the publication, prior to the matters complained of, of a further 53 broadcasts. These 53 broadcasts are one of a number of matters from which the plaintiffs allege an inference may be drawn that Mr Jones, in broadcasting the matters complained of, was motivated by a desire to injure the plaintiffs' reputation.[582]
[747] The First Matter complained of was broadcast on 28 October 2014. The 53 broadcasts pre-date 28 October 2014. They span a period from 23 September 2013 to 16 October 2014.[583]
[748] The issue is whether the plaintiffs may rely on these 53 broadcasts in respect of their claim for aggravated damages.
[749] Ordinarily for aggravated damages, it is the defendants' conduct from the commission of the tort up until the day of judgment that can be considered.[584] As correctly submitted by the defendants:
"The important aspect about aggravated damages is that it focusses on the additional hurt suffered. ... and it cannot have been aggravated merely by, for example, the fact that there were defamatory publications made before the publications that are sued upon."[585]
[750] The plaintiffs could not rely on the 53 previous broadcasts as additional defamations. In John Fairfax Publications Pty Ltd v Jones[586] the plaintiff's pleaded claim for aggravated damages relied on the publication of articles, prior to the publication of the matters complained of. Hodgson JA (with whom Spigelman CJ and Ipp JA on this aspect agreed), in refusing to interfere with the decision at first instance not to strike out the plaintiff's claim for aggravated damages, observed:
"In my opinion, the plaintiff is not relying on the additional material as additional defamations, and indeed could not do so; and there is no need to proceed as if additional defamations were alleged and no need to comply with the requirements for claiming damages for defamation. Thus there is no need for the plaintiff to specify imputations. I would add to this that, in my opinion, the plaintiff cannot seek to increase damages by reference to injury to reputation caused by the content of this additional material: although aggravating conduct may increase damages by a way of increasing injury to reputation, in my opinion this will only be through adding to the effect of the defamation actually sued on."[587]
[751] The danger of relying on subsequent publications for the purposes of increasing damages was identified by Gray J in Collins Stewart Ltd & Anor v The Financial Times Ltd (No 2):[588]
"The starting point for any discussion of the legitimacy of the use to which Collins Stewart wish to put the subsequent articles is that they could, if they had chosen to do so, have complained of them as separate causes of action. Issues of meaning and any defences could then have been debated at trial in the usual way. In the event that Collins Stewart failed to establish that any of the subsequent articles was defamatory of them or The Financial Times established a defence to it, no question of additional damages would arise. If on the other hand liability were to be established against the newspaper, Collins Stewart would be entitled to further separate awards after the judge had directed the jury (or himself) to take care to avoid double-counting. This is a familiar and workable scenario.
My starting point is therefore that there are sound reasons both of principle and of practice why a claimant, whether an individual or a corporation, should not be permitted to seek to recover increased damages in respect of the publication by the defendant of article A by reason of the publication by that defendant of subsequent articles B and C which are not themselves the subject of complaint."[589]
[752] As is evident from the plaintiffs' pleaded case, the 53 publications are relied on for a limited purpose. The plaintiffs refer to the following statement in Gatley on Libel and Slander:[590]
"Evidence has been held to be admissible which shows that the defendant has published other defamatory words about the claimant, whether such words were or were not connected with the subject-matter of the action, and whether publication took place before or after the publication giving rise to the action. The reason was explained by Tindal CJ:
'Either party may with a view to damages, give evidence to prove or disprove the existence of a malicious motive in the mind of a publisher of defamatory matter.'[591]
But subsequent publications which shed light on the defendant's motive or state of mind, and thus go to prove malice and consequent injury to the claimant's feelings, should not be confused with publications relied on to increase damages for injury to reputation. ...
Nonetheless, evidence of matters tending to establish malice on the part of the defendant is, as a general rule, admissible to support a claim for aggravated damages. As the damages are compensation for the additional injury to the claimant's feelings, it is submitted that the conduct of the defendant from which malice is to be inferred must have been known to or have come to the knowledge of the claimant."
[753] McGregor on Damages[592] deals with "other derogatory statements about the claimant" in the following terms:
"Any other derogatory statements made of the claimant by the defendant may be given in evidence to show malice. At one time there was a conflict of authority as to whether a derogatory statement which was itself defamatory was admissible, particularly if subsequent to the statement sued upon; the courts clearly feared that the jury would give damages for the other defamation as a separate cause of action, and tended to allow such evidence only if given to explain the meaning of the statement sued upon where that was ambiguous or, sometimes, if the other defamatory statement was in substance the same as or related to that sued upon. Such limitations were swept away by the decision in Pearson v Lemaitre, which in 1843 established the modern law."
[754] The defendants accept that a defendant's conduct prior to publication may be relevant to aggravated damages. Such pre-publication conduct must, however, demonstrate improper or unjustifiable conduct, or "a malicious attitude".[593] As pleaded, the plaintiffs do not seek to rely on the 53 previous broadcasts for a purpose other than inferring that Mr Jones was motivated by a desire to injure the plaintiffs' reputations. Any consideration of the 53 broadcasts in respect of aggravated damages is limited to the plaintiffs' pleaded case.
(d) Section 35 - statutory cap
[755] Section 35 of the Act relevantly provides:
"(1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded.
(2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages."
[756] Section 35(3) permits the Minister, on or before 1 July of each year, to declare the amount that is to apply from that date. The maximum amount applies as at the date the damages are awarded. On 25 May 2018, the Queensland Attorney-General declared that on and from 1 July 2018 the maximum amount of damages that may be awarded for noneconomic loss in defamation proceedings is $398,500.[594] Pursuant to s 35(2), this cap may be exceeded "if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages". For reasons which are developed below, I am satisfied that the circumstances of the publication of the matters complained of are such as to warrant an award of aggravated damages.
[757] The defendants in their written submissions assert that the cap retains relevance for the setting (even if only nominally) of the amount prior to the determination of any component for aggravated damages:
"The defendants accept that, as the terms of s 35 made plain, the cap may be exceeded by an award of damages for non-economic loss, however the starting point must be what would be awarded but for the aggravating conduct. Were it otherwise, the cap would be meaningless. It is clear that this is the case, for two reasons. First, the statutory mandate is that the cap only be exceeded if the circumstances of the publication are such as to mean aggravated damages ought to be brought to account. Secondly, it would mean that the non-aggravated component of an award of damages could be different in cases where an award of aggravated damages were available, and where it were not. Comparability between cases where there was and was not an aggravated component would become impossible."[595]
[758] At the time of making that submission, there were decisions at first instance that had rejected the defendants' construction of s 35. These decisions include those of John Dixon J in Wilson v Bauer Media Pty Ltd,[596] and Chaney J in Rayney v The State of Western Australia [No 9].[597] John Dixon J considered the statutory text of s 35(2) to be unambiguous:
"Section 35(2) postulates a condition for its application, being that the court be satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages. If and only if such circumstances are found, the court is no longer constrained by the statutory cap under s 35(1) and may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made.
The expression 'damages for non-economic loss', like the expression 'maximum damages amount', does not refer to 'an award of aggravated damages'. That expression refers to general damages that, as I have noted, are compensatory damages for non-economic loss that provide consolation for hurt to feelings, compensation for damage to reputation, and vindication of the plaintiff's reputation and that may, in appropriate circumstances, be assessed to reflect aggravation caused to a plaintiff's hurt or injury by reason of some conduct of the defendant."[598]
[759] Chaney J in Rayney followed the decision of John Dixon J in Wilson, finding that once the court determines that aggravated damages are justified on the application of the normal common law test, the cap has no application.[599]
[760] On the last day of the trial, 14 June 2018, the Victorian Court of Appeal published its reasons in Bauer Media Pty Ltd v Wilson (No 2).[600] The parties were given the opportunity to file further written submissions as to the effect of this decision.
[761] The Court of Appeal upheld John Dixon J's construction of s 35(2):
"The judge was correct to construe s 35(2) as empowering a court to lift both pure compensatory damages and aggravated compensatory damages above the cap when the condition for the exercise of the discretionary power is enlivened. That condition is identified in the second limb of s 35(2), namely, if, and only if, an award of aggravated damages is warranted. The reference to 'aggravated damages' is singled out from the collective expression 'damages for non-economic loss' only as a means of specifying under what conditions the discretionary power can be exercised.
We further consider that the judge was correct to acknowledge that the direction under s 34, to ensure there is an appropriate and rational relationship between the harm sustained and the damages awarded, continues to apply even where the discretionary power is used to exceed the cap. Section 34 thus operates as an ever-present guide to ensure remedies are fair and effective in the context of achieving the objects of the Act with the aim of ensuring consistency of awards in defamation proceedings across jurisdictions and to correct any imbalance with awards of damages for personal injuries."[601]
"We accept that when a court is satisfied that an award of aggravated damages is appropriate the court is entitled to make an order for damages for non-economic loss that exceeds the statutory cap in respect of both pure compensatory damages and aggravated compensatory damages. In other words, the statutory cap does not then constrain the court's assessment of damages for non-economic loss; when an award of aggravated damages is warranted, the statutory cap is inapplicable.
We consider that if the Legislature seeks to confine the extent to which the maximum damages amount can be exceeded to the award of aggravated damages alone, it ought consider re-drafting s 35(2) to insert as the closing words of s 35(2) 'but only to the extent that an award of aggravated damages is warranted' or some other appropriate express qualification."[602]
[762] The defendants have invited the Court not to follow the reasoning of the Victorian Court of Appeal on the basis that the decision, which is not binding on this Court, was incorrectly decided. No submission has been made by the defendants that the decision of the Victorian Court of Appeal was plainly wrong.[603] This Court should not depart from a decision of an intermediate appellate court in another jurisdiction on the interpretation of uniform national legislation unless convinced the decision is "plainly wrong".[604] For my part, I respectfully agree with the Victorian Court of Appeal's construction of s 35(2).
[763] Good reputation is presumed in favour of each of the plaintiffs.[605] The plaintiffs also led evidence of their good reputations generally. They called six reputational witnesses, each of whom knew one or more of the plaintiffs. None of these witnesses were crossexamined. Irene Myers served with Denis Wagner on the Jondaryan Council and remained in contact with him. Ms Myers described Denis Wagner's reputation as follows:
"... he is a very honest young man. And he has certain principles of his own which he makes decisions with that are usually spot on. He mixes well with everybody. He's got compassion for his fellow man. And he does not at any one time cut you short."[606]
[764] William Baskett is a transport operator and had dealings in this role with Denis Wagner. Mr Baskett's evidence was that Denis Wagner had a very good reputation "both as a businessman, a family man, a man who worked for the community".[607] He referred to Denis Wagner as being "well respected" in the transport industry but also in the community around Toowoomba. He was also respected for his involvement with junior hockey. Mr Baskett also knew John and Neill Wagner. He considered that Neill Wagner had a good reputation around the town and in the transport industry.[608] He described Neill Wagner as having "an excellent reputation"[609] and John Wagner having "a very good reputation".[610]
[765] Michael Ezzy worked for Wagners for 27 years. He knows each of the plaintiffs. Mr Ezzy described Denis Wagner's reputation as "hard working, reliable, approachable, honest, a man of integrity, compassionate, sympathetic and generous".[611] Mr Izzy stated that John, Neill and Joe Wagner had the same reputations.[612]
[766] David McDonald has known Neill Wagner since 2003 both as a friend and a business acquaintance. He described Neill Wagner's reputation as "one of integrity, extremely strong family man, very community minded and would do anything for you".[613]
[767] Melissa Taylor first met John Wagner in 2004-2005 through the Toowoomba Chamber of Commerce. She described John Wagner's reputation as follows:
"John's reputation is very much of a strong businessman with great vision, a tough businessman but very fair with great integrity and honesty."[614]
[768] Michael Doohan has known John Wagner for approximately 20 years. He referred to John Wagner founding the charity "It's A Bloke's Thing".[615] Mr Doohan stated that John Wagner was held in high regard within the community, especially within the business community.[616]
[769] The defendants criticise the evidence of the reputational witnesses (apart from Ms Myers) on the basis that their evidence was restricted to the plaintiffs' reputations as at September 2013, which pre-dates the First Matter complained of by approximately one year.[617] There is, however, no suggestion that each of the plaintiffs had anything other than an excellent reputation for honesty and integrity both in business and community circles prior to the publication of the First Matter complained of.
[770] The extent of publication of the relevant matters complained of cannot be precisely ascertained. From the following factors, however, I find that the publication of the matters complained of was very extensive.
[771] An examination of the relevant correspondence between the solicitors for the plaintiffs and the solicitors for the defendants[618] reveals that the defendants provided only audience figures for the Brisbane and Sydney metropolitan areas. These figures are as follows:
Fifteenth Matter - 149,000 (Sydney and Brisbane metro)
Sixteenth Matter - 149,000 (Sydney and Brisbane metro)
Seventeenth Matter - 201,000 (Sydney and Brisbane metro)
Eighteenth Matter - 200,000 (Sydney and Brisbane metro)
Nineteenth Matter - 188,000 (Sydney and Brisbane metro)
Twentieth Matter - 167,000 (Sydney and Brisbane metro)
Twenty-First Matter - 205,000 (Sydney and Brisbane metro)
Twenty-Third Matter - 186,000 (Sydney and Brisbane metro)
Twenty-Sixth Matter - 194,000 (Sydney and Brisbane metro)
Twenty-Eighth Matter - 177,000 (Sydney and Brisbane metro)
Twenty-Ninth Matter - 180,000 (Sydney and Brisbane metro)
Thirtieth Matter - 159,000 (Sydney and Brisbane metro)
Thirty-First Matter - 200,000 (Sydney and Brisbane metro)
Thirty-Third Matter - 179,000 (Sydney and Brisbane metro)
Thirty-Fourth Matter - 158,000 (Sydney and Brisbane metro)
[772] These figures considerably underestimate the extent of publication for the following reasons correctly identified by the plaintiffs:[619]
- (a) The figures exclude broadcasts by regional stations. The defendants accept that each of the matters was broadcast beyond radio stations 2GB and 4BC to at least 44 regional radio stations. Mr Jones in evidence, for example, accepted the fact of broadcasts on 77 stations around Australia.[620] The defendants did not provide (despite repeated requests) audience figures for regional stations. This was because the defendants are not in possession of regional audience data and do not subscribe to any such service;[621]
- (b) The figures also exclude those who listened to the matters on-line either as a livestream or who subsequently downloaded the audio from 2GB or 4BC's website. The defendants have failed (despite knowing of these proceedings) to retain these figures. This failure was not explained;
- (c) It may be inferred that the broadcasts would have been heard by many people who did not deliberately tune in to either 2GB or 4BC, for example, by people hearing a broadcast while travelling in a taxi; and
- (d) The figures supplied by the defendants do not take into account the grapevine effect.
[773] Each plaintiff gave evidence that in the course of building the Wagner business he established a wide circle of acquaintances. Denis Wagner, for example, estimated that he had dealt with thousands of people in the course of the business.[622] John Wagner estimated that he interacted with tens of thousands of people, across a very wide range.[623] Neill Wagner stated that he encountered thousands of people in the course of building the business.[624] Joe Wagner estimated that he dealt with hundreds, perhaps a thousand acquaintances in the course of the business.[625] These acquaintances included
suppliers, accountants, lawyers, government officials, clients, bankers, engineers, large corporations and politicians.
[774] Quite apart from each plaintiff having an extensive circle of business acquaintances, each was also involved in their community. I have already referred to Denis Wagner's involvement in junior hockey. John Wagner was well known in the community. He was on the board of Downlands College for a number of years. Similarly, Neill Wagner has been involved in the community in relation to sporting events and school activities. The Wagner business is also well known in the community having sponsored the Queensland Ballet, sporting clubs and donated to charitable organisations both publicly and anonymously. Joe Wagner has also been heavily involved in the community, having attended what he described as hundreds of social and community functions.
"MR BLACKBURN: How many times do you think - and, obviously, you won't be able to put any kind of exact figure on this. How many times, do you think, over the years have people said things to you or asked you questions or said things to you about Alan Jones' comments about the Wagners?
DENIS WAGNER: I would say it would be in the tens of thousands. Tens of thousands."[630]
[777] When challenged that the reference to "tens of thousands" must be an exaggeration (because this would be three people every day for 10 years), Denis Wagner maintained that this figure was not an exaggeration.[631] The defendants submit that this reflects on Mr Wagner's credit.[632] I have previously observed that I found Denis Wagner to be a truthful witness. In the exchange that occurred with Mr Blackburn SC, Mr Wagner was asked to estimate the number of persons who had made comments to him about the matters complained of. While I accept that the actual number of people who commented to him about the matters complained of is an exaggeration, I otherwise accept the import of Mr Wagner's evidence that numerous people would regularly comment to him about the broadcasts.
[778] Denis Wagner also recalls that it was not uncommon for people to say to him "Well, you've caused the flood at Grantham. People are saying you've caused the flood at Grantham."[633] People would make similar comments to him at school functions. He also recalls attending a conference in Adelaide in March 2016, when a senior person from Hitachi recounted many of the things Mr Jones had said in the course of his broadcasts concerning Grantham and the Wellcamp Airport.[634] Denis Wagner also recalled an incident in a taxi in Sydney where the taxi driver, having been told Denis Wagner (who was accompanied by John Wagner) was from Toowoomba (but otherwise not knowing who he was), said to Denis Wagner that he had been listening to Alan Jones, and the taxi driver said with conviction statements suggesting that "those Wagner guys" had not done the right thing.[635]
[779] Elizabeth Wagner is the wife of John Wagner. She gave the following evidence:
"It was not unusual, to go anywhere, to a friend's house, a - you know - a school function, a business function - wherever you seemed to go, people would say to you, 'How are you getting on with all this Alan Jones stuff? Like, how are you getting on? Like - you know - what's happening?' And you sort of - you were unsure whether you were immediately being judged or - yeah; it was difficult. It was really difficult. It seemed to cross every path that you took; people seemed to be asking."[636]
[780] Neill Wagner was also asked about the broadcasts when he was interacting with people both socially and in business. According to Neill Wagner this occurred "hundreds of times" and involved "many hundreds" of people.[637] He recalls people asking questions such as, "Did you guys really cause that?" and one person asked whether he was going to go to jail.[638] Neill Wagner recalls that at school functions people would come up to him and ask him, "Did you actually murder those people?"[639] People would also say to him, "You've obviously got the ear of the government."[640]
[781] Joe Wagner had similar experiences. His recollection was that people would make comments about the broadcasts to him almost on a daily basis and he felt it was endless. He recalls people asking him, "What have you done to Jones?" "What happened at the quarry? Whose fault's that?" "Who's responsible for Grantham?"[641] In relation to the airport, Joe Wagner would be questioned by people to the effect, "How did you get that through council so quickly?"[642] Such comments would also come up in the business context. According to Joe Wagner, "Alan Jones was always mentioned" at the commencement of meetings.[643] In crossexamination it was suggested to Joe Wagner that it could not be right that at hundreds and hundreds of business meetings he attended over the years, the broadcasts would be mentioned. Mr Wagner's response was emphatic: "When Mr Jones' name is mentioned to you at the start of most meetings, let me tell you, I can remember it. It sits very clearly in my mind."[644] I accept this evidence. In my view, Joe Wagner, and indeed all the plaintiffs, were witnesses of truth. To the extent that their estimates of the number of people who commented about the defamatory broadcasts or the number of occasions upon which those comments were made are exaggerated, this may be readily explained by the profound effect both the defamatory broadcasts and people commenting to the plaintiffs about those broadcasts had on them.
[782] Helen Wagner is the wife of Joe Wagner. She recalls people who did not even know them say words to the effect, "So are you one of those Wagners that they have been talking about on the radio?" Mrs Wagner stated that this occurred almost on a daily basis. Mrs Wagner had to defend herself so often that there were times when she pretended not to be one of the Wagners so that no-one would know who she was.
"You people killed those people in the Floods at Grantham, You pigs are now suing Alan Jones 2GB to cover up and feel good, Only to get more cash. 'wake up you piss poor person for a businessman oxygen starved pigs. Campbell Newman got his Ass kicked out, watch your backs 'WAGNERS-SCRABS'. GO TO CHINA."[647]
[784] By reference to this message the plaintiffs submit, correctly in my view, that "it is practically impossible to track the scandal and to know what quarters the poison of the broadcasts has in fact reached".[648]
[785] Finally, in relation to the grapevine effect of the defamatory broadcasts, John Wagner gave evidence of Wagners being involved in major overseas projects and the importance of reputation in this context:
"So the way our industry works is, particularly for the major - major projects they're not a price-sensitive project. It's about having the reputation and the ability to be able to execute on what the project is, but over and above that, we have to sign up, particularly with the US companies. Even as the ultimate owner, you may have a Japanese contractor in the middle of the US company. So Exxon down to Chiyoda down to us. We have to sign up with those people, and they have to have absolute assurance in our integrity to a point where they can satisfy themselves that we won't be part of any corruption, bribery, or underhandedness, and without that reputation, you don't even get a look in."[649]
[786] No part of the plaintiffs' case includes a claim for special damages. Both John and Denis Wagner acknowledged in evidence that the Wagner business was going from strength to strength.[650] It remains the case, however, that in determining the damage done to each plaintiff's reputation, which includes business reputation, the Court should take into account the grapevine effect arising from the publication of the defamatory material.[651] As observed by John Dixon J in Wilson v Bauer Media Pty Ltd:[652]
"The award of damages must be sufficient to ensure that, the damage having spread along the 'grapevine', and being apt to emerge 'from its lurking place at some future date', a bystander will be convinced 'of the baselessness of the charge'."[653]
[787] Attachment 35 to these Reasons is a list of the imputations conveyed by the relevant matters complained of. In all, 80 imputations are conveyed. They include accusations that:
- (a) the plaintiffs were responsible for the deaths of 12 people at Grantham, including two children;
- (b) knowing of their culpability, the plaintiffs were knowingly involved in a massive cover-up. This cover-up involved the plaintiffs 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 plaintiffs bullying and intimidating persons who sought to expose the truth;
- (c) the plaintiffs 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;
- (d) the reason the plaintiffs were able to construct the Wellcamp Airport was because of their corrupt relationship with the Coalition in Queensland and Canberra; and
- (e) the plaintiffs are selfish and sensitive grubs who falsely claimed to have suffered in the Grantham floods.
[788] The 80 imputations conveyed are, in my view, extremely serious and of the gravest kind.
[789] The seriousness of the defamatory imputations conveyed calls for a substantial award of damages to signal to the public the vindication of the plaintiffs' reputations. Further, as correctly submitted by the plaintiffs, there is an additional feature of vindication in the present case.[654] Mr Jones in the course of the trial continued to assert the truth of a number of the imputations conveyed, including some which were no longer sought to be justified. I deal with Mr Jones' conduct in this respect below in relation to aggravated damages.
[790] Each plaintiff gave evidence as to their hurt feelings. This evidence was not challenged.
[791] At different stages of giving evidence each of the plaintiffs became visibly upset and broke down. Having observed each plaintiff give evidence, I find that the defamatory broadcasts have caused each of them to suffer profound personal hurt.
[792] To understand the depth of each plaintiff's hurt feelings, it is necessary to understand the personal pride each feels in having built the Wagner business and in the reputation the plaintiffs have earned in both business and community circles for honesty and integrity. This pride was best expressed by Neill Wagner:
"MR BLACKBURN: Are you proud of the business that you and your brothers started in 1989?
NEILL WAGNER: Very. ... to start with nothing, basically, and then, ... to build a business that ... had 1100 employees working for it ... I often sit back and say, 'Well, ... we paid 1100 people this week ... and we're putting two and a-half meals' - for each employee, you put two and a-half meals a day onto the table. You say to yourself, 'Well, ... you're doing your bit for society here.' ... do your bit for the local community and the state and the country.
MR BLACKBURN: Does the company have some principles or guiding values that you try to adhere to?
NEILL WAGNER: Yeah. Many years ago, ... the business managers of the business and the four directors went away to a place called Couran Cove for the weekend to do a bit of a strategy session, and out of that weekend came our guiding principles. And the guiding principles - you know, ITSFAIR. So if you use the acronyms of ITSFAIR - deal with integrity, work together to overcome challenges, to work in a safe environment, be family conscious.
NEILL WAGNER: Yeah. Look after your employees. Family conscious. You know, they've got to have ... the right work-life balance. Acknowledge success and innovation. We're ... very much an innovative ... company and require excellence. So you get the letter out of those guys and come up with the acronym ITSFAIR. So at Wagners, ... if you look after those guiding principles - if you don't know how to make a decision and you go back ... on the back of every one's business card, and you quite often turn the business card over and say to yourself, ... 'Is that fair?' And if you go through those points, if it's fair, you make the decision and you move on. And we've never had - never, ever had any come back to us if we've use[d] those guiding principles."[655]
[793] In the course of giving evidence a number of defamatory broadcasts were played to each plaintiff. The sample of defamatory broadcasts generally covered the sting of all the imputations conveyed. These included accusations in relation to Grantham, the Wellcamp Airport, bullying and intimidation and the plaintiffs being self-interested and greedy.
[794] Denis Wagner's evidence was that the accusations in relation to Grantham, including him being responsible for the deaths of 12 people, made him feel "gutted":
DENIS WAGNER: Oh, terrible. Terrible. Gutted, actually. It just - it's hard - again, it's hard to describe, but you can't - you just get deflated. You just - it's really hard to cop.
MR BLACKBURN: It's pretty well-known, Mr Wagner, how those people died. They drowned in horrible circumstances. Did that affect you when you heard Mr Jones talking like this?
DENIS WAGNER: It certainly - certainly did. You really just sort of wonder for yourself, you know, where is this thing going? You know, unfortunately when he speaks with such authority on radio people believe him and the impacts of that are sort of far and wide - far and wide. ... and then hearing these allegations that the thing collapsed and all these people died as a result of it, very difficult."[656]
Denis Wagner, in addressing the accusations of a cover-up, gave evidence of his feeling of helplessness.[657] He also spoke of feeling humiliated:
"At times you get angry, but you - it is really sort of - and I've used this word before - but gut-wrenching stuff and, you know, you do actually feel humiliated, you know, when those sort of accusations are made."[658]
[795] Denis Wagner stated that the accusations made by Mr Jones were totally against the principles by which the Wagner business was conducted.[659]
[796] Despite trying to control himself, Denis Wagner became very emotional when he described the stress he observed that these accusations placed on his parents:
"Dad was gutted. He'd ring up daily and say, 'What are we going to do about him?' And how do you tell an 80-year-old man - we have the resources to build an airport. We could send concrete plants to Russia and batch concrete in minus 60 degree temperature. We could build bridges in Toowoomba and install them in North America. But we seemed powerless to stop this slander."[660]
[797] The defamatory broadcasts also had an impact on Denis Wagner's family and created tension. It also affected his ability to work and operate his business.[661] Denis Wagner was played the Thirtieth Matter complained of in which Mr Jones purports to summarise Denis Wagner's evidence before the Grantham Floods Inquiry. This was the broadcast in which Mr Jones posed the question, "What kind of selfish, insensitive grubs are these people?" Denis Wagner described his feelings in relation to this defamatory broadcast as "just absolutely humiliating".[662]
[798] Similarly in relation to the accusations concerning Wellcamp Airport, these made Denis Wagner feel "quite gutted" and "terrible".[663] A number of persons, including those in business circles such as bankers and bureaucrats both within local and state government, as well politicians, would raise with Denis Wagner accusations made by Mr Jones in relation to the airport. Denis Wagner stated, "And then I found myself in a position where we had to try and sort of defend our reputation, defend our position ... just not a nice feeling. A terrible feeling."[664]
[799] Denis Wagner experienced anxiety because he could not properly assess what impact the defamatory broadcasts were having on the Wagner business.[665]
[800] He found the accusations of bullying and intimidation to be "gut-wrenching" and felt "humiliated".[666]
[801] John Wagner's evidence was to similar effect. He was asked how he felt about the accusations that he was involved in a cover-up in respect of Grantham with the Premier and the Deputy Prime Minister: "Well, it goes right to the heart of integrity, honesty and reputation and, you [k]now, it was a terrible place to be."[667] He described his business reputation as taking "a pretty serious battering". He saw the Wagner business potentially going down the drain:
"JOHN WAGNER: I was extremely worried about it. You know, the banks were continually asking, you know, ... when's this Jones thing going to stop. It was getting to a point where people were actually sort of saying, well, do we really want to fund these people? Do we really want to be known to be part of the Wagner story? And it's a great story, but, you know, people were sort of starting to doubt whether they actually wanted to be part of - part of what we were doing.
JOHN WAGNER: ... it was just a point that we just didn't know where it was going to end or how it was going to end. And it put a lot of stress on everything."[668]
[802] John Wagner at the time of these broadcasts was battling prostate cancer.[669] He felt helpless, angry and unable to defend himself.[670] He also observed the impact it had on his family, which he found very stressful.[671] The defamatory broadcasts also affected his home life. This included people making comments about the broadcasts to his wife and his daughters. He noticed that people became standoffish and were keeping their distance. He also observed the broadcasts having an effect on his elderly parents.[672]
[803] Elizabeth Wagner is the wife of John Wagner. Prior to the broadcasts she described John Wagner as always being easy-going, fun-loving and committed to working hard. After the broadcasts she noticed that he became teary and appeared troubled. He was also short with her and the children, which was unlike him. She described him as still being stressed, sleeping erratically and being quite teary. She stated that he is "a very different man these days".[673]
[804] Neill Wagner was devastated and hurt by the Grantham allegations. He described himself as feeling "gutted".[674]
[805] Neill Wagner's reaction to the playing of the defamatory broadcasts was that the matters made him feel angry, helpless and powerless. As to the accusation that the Wagners knew only two things, namely self-interest and bullying, Neill Wagner stated: "You can't - you just can't - can't hold your head high any more. You know, you go out - you go out in the community and you see people - you know they're talking about you."[675] He believes that he will have to live with these accusations for the rest of his life: "As I say, this is going to live with me for the rest of my life and I don't know how you get over this kind of stuff, you know."[676]
[806] The defamatory broadcasts had an impact on Neill Wagner's family. He became very emotional when he recounted an incident with his wife of 23 years, where she doubted him asking, "What have you blokes done here?"[677] This was a reference to the Grantham accusations. He also observed that the defamatory broadcasts had a definite effect on his children.
"Well, it's, you know, sort of very upsetting, knowing that you've worked so hard to build a reputation for yourself and the business and your family, and then someone on a national radio talking to you about - or talking about you like that is very hurtful, very hurtful. And then that leads into many other, you know, issues such as, you know, what's - how do you handle this? What do you do?"[680]
[809] More specifically, in relation to the accusation that the plaintiffs were responsible for the deaths of 12 Grantham residents, Joe Wagner responded: "Just gut wrenched. Just - devastated. I suppose I - I - I felt hurt and - and probably more guilt that I was - that I had put my wife and children ..."[681] Joe Wagner in giving this evidence became so visibly upset that an adjournment was required.[682]
[810] Joe Wagner gave emotional evidence concerning verbal and physical abuse his daughter was subjected to at school because of the broadcasts. His son was also taunted with accusations that his parents were responsible for killing people in Grantham.[683]
[811] The defamatory broadcasts had other impacts on Joe Wagner, including sleepless nights.[684] He stated that he was devastated by the impact the broadcasts had on his parents.[685] It also impacted one of his close friendships when a friend told him that Mr Jones was right and the Wagners were wrong.[686] The broadcasts had such an impact on Joe Wagner that he sought to escape to a remote property outside Tenterfield. Even there, he was unable to avoid comment about the broadcasts - his neighbours asked him, "Which one of you boys is responsible for the Grantham disaster?" - and as a consequence he felt "totally trapped".[687] He stated that he became paranoid about what people were thinking and saying about him.[688]
[812] Joe Wagner's wife, Helen Wagner, gave evidence that the broadcasts caused her husband to be deeply upset. He became withdrawn, restless at night and would go into a room by himself to listen to the broadcasts. While Helen Wagner has always been proud to be a Wagner, there were times, because of the broadcasts, that she used her maiden name. When she informed her husband of this he became very upset.[689]
[813] Although none of the plaintiffs' evidence as to hurt feelings was challenged, the defendants nevertheless submit that the plaintiffs did not seek to mitigate their hurt feelings by commencing the present proceedings until after the Grantham Floods Inquiry had concluded.[690] The defendants also challenge the plaintiffs' evidence that they felt powerless and helpless in the face of the defamatory broadcasts on the basis that the plaintiffs were able and did, in fact, take various steps. These included the plaintiffs engaging The Punch Group as general media advisers. The plaintiffs made a business decision to "promote good news rather than bad news". The plaintiffs also pursued their legal rights in respect of other publications by , Heather Brown, Channel 9 and 60 Minutes. After settling the claim against , the plaintiffs released a media statement which disclosed the settlement, classifying it as both a win and vindication.
[816] I have identified in [737] to [738] above the matters relied on by the plaintiffs in respect of aggravated damages. I analyse the evidence in relation to these matters below. From this analysis I make the following findings:
- (1) Mr Jones, for whose conduct 2GB and 4BC are vicariously liable,[695]
- (a) engaged in unjustifiable conduct; and
- (b) was motivated by a desire to injure the plaintiffs' reputations;
which conduct and motivation increased the harm to the plaintiffs' feelings and to their reputations.
[817] Some of the matters which constitute unjustifiable conduct also support the finding that Mr Jones was motivated by a desire to injure the plaintiffs' reputation.
[818] While Mr Jones is contracted to the owner of 2GB, he is largely given free rein in what he says on radio and is not subject to editorial control.[696] For the period 2013 to 2015, Mr Jones had five staff who assisted him. Some were employed by him and some by Macquarie Media. He and his staff controlled production. The staff employed by Macquarie Media would provide technical assistance to enable the program to go to air, subject to Mr Jones' direction.[697] None of the five staff utilised by Mr Jones were either journalists or researchers.[698] Mr Jones generally received information from listeners or members of the community, either by email, letter or phone call. He stated in evidence: "I have always argued that my listeners are my best researchers."[699] Mr Jones also monitored various media applications for both local and international content.[700] He would utilise staff to ring listeners or members of the community to obtain their story which the staff member would type up for him.[701] His staff would also compile dot point summaries of various news reports.[702]
[819] In relation to issues concerning Grantham and the Wellcamp Airport, Mr Jones views himself both as a supporter of the local community and as being the "voice of the voiceless".[703]
[820] Mr Jones' primary sources of information in relation to the Grantham Flood event were eyewitnesses and journalists, including Mr Cater and Amanda Gearing. I accept that Mr Jones, in his role as a national broadcaster, sought to ventilate the concerns expressed to him by the victims of the Grantham Flood event. Mr Jones was entitled, of course, to ventilate these concerns and agitate for a fresh inquiry.[704] Mr Jones, however, went much further in his broadcasts than merely ventilating these concerns and calling for an inquiry. He accused the plaintiffs of being responsible for the deaths of 12 Grantham residents and seeking to cover up their culpability by bullying, intimidation and political influence. That is, prior to the Grantham Floods Inquiry being established and Mr Sofronoff QC publishing his findings, Mr Jones was repeatedly asserting on national radio that the plaintiffs were responsible for the 12 deaths and implicitly, that any inquiry established would find accordingly.
"MR BLACKBURN: ... Mr Jones, that is an exact description, power without responsibility, of your attacks on the plaintiffs, isn't it?
MR JONES: No, my - my attacks were based on my understanding of the grievous circumstances facing the victims."[706]
Mr Jones' understanding, without further research, investigation or hydrological evidence, constituted a wholly inadequate basis for the broadcasting of grave accusations concerning the plaintiffs. The role played by the quarry in the Grantham Flood event is a complex hydrological issue which arises in the context of a wider severe flood event. As properly conceded by Senior Counsel for the defendants, the evidence of the eyewitnesses, without interpretation by experts, is insufficient for the purposes of establishing any causal link between the collapse of the bund and the deaths of 12 people.[707]
[822] Mr Jones had a copy of the DHI hydrology report commissioned by The Australian when he interviewed Mr Cater on air on 17 March 2015, which is the Eleventh Matter complained of. Mr Jones had not read this report.[708] He believed, however, that he was entitled to rely on those who had written "authoritatively" about the report.[709] Mr Jones agreed that the DHI report did not support "all the way" his own understanding of events.[710]
[823] Another example of Mr Jones being wilfully blind to the truth or falsity of his accusations is the Thirtieth Matter complained of. I have already dealt with this matter in [707(f)] above. This broadcast concerned Denis Wagner's evidence at the Grantham Floods Inquiry. In the course of this broadcast Mr Jones states, "What kind of selfish, insensitive grubs are these people?" As I have already observed, by his statements in this broadcast Mr Jones substantially altered the impression that a listener would have received had that person been present at the Inquiry and heard Denis Wagner's evidence. Not only is the impression substantially altered, Mr Jones creates a false impression. If Mr Jones was in possession of the transcript of Denis Wagner's evidence, he could not fairly have made those statements. If he was not in possession of the transcript, he should not have made those statements.
[824] Mr Jones sought to obtain the transcript of the evidence given at the Grantham Floods Inquiry.[711] He was not able to say whether or not he had the transcript of Mr Wagner's evidence.[712] Mr Jones did, however, state that through orthodox methods he was obtaining transcripts each day of the Inquiry and tried to read those transcripts.[713] He agreed that he had no way of knowing the evidence given by Denis Wagner, for the purposes of commenting upon it, other than by being made aware of it.[714] He believed that he would have received the transcript prior to commenting upon it.[715]
[825] When cross-examined in relation to the Thirtieth Matter complained of, Mr Jones was not certain whether he had received a copy of the transcript.[716] Having had the transcript read to him, Mr Jones described the sentiments expressed by Denis Wagner as "most laudable". When it was suggested to Mr Jones that he had entirely misrepresented Mr Wagner's evidence at the Grantham Floods Inquiry, his response was, in my view, disingenuous:
"MR BLACKBURN: Now, Mr Jones, I just have a few questions for you about that. First of all, this: the transcript that you've read that I read to you, on any fair reading - this is an accurate summary of it, I suggest to you - the commissioner asked Mr Wagner whether he'd suffered any damage and he replied they'd suffered some loss of equipment but that was nothing compared to the damage that'd been suffered by others. That's the effect of his answer, wasn't it?
MR BLACKBURN: Yeah. And you have entirely misrepresented that answer in your broadcast, haven't you?
MR BLACKBURN: You called him a selfish, insensitive grub, didn't you?
MR BLACKBURN: Yes, and a few moments ago, you said they were laudable sentiments?
MR JONES: Well, what kind of words would apply to someone who built a bund contrary to the licence of 1989 and denied it over and over again?"[718]
[826] Irrespective of whether Mr Jones was in possession of the transcript of Mr Wagner's evidence, the defamatory accusations he made based on that evidence demonstrate a wilful blindness to the truth or falsity of what was broadcast.
[827] As to the accusations made by Mr Jones that the plaintiffs had lied about a man-made wall at the quarry, there is no evidence to support this accusation. According to Mr Jones, "[T]he Wagners have argued for years that the bund was a feature of the natural landscape and was not man-made".[719] When it was suggested to Mr Jones that the Wagners had never stated that the bund was a natural feature or that it was not man-made, Mr Jones' response was, "That's not my understanding".[720] In the absence of actual evidence, serious accusations should not be the subject of national broadcasts merely based on one's understanding.
[828] Mr Jones accepted that he was in possession of Denis Wagner's statutory declarations given to the Grantham Floods Inquiry prior to his broadcast of the Thirtieth Matter.[721] In paragraphs 18 and 19 of the statutory declaration[722] Mr Wagner states:
"18. I have marked in orange a part of the western boundary of the sand pit (the Western Embankment) that, to the best of my knowledge and belief, was a natural feature of the site. To the best of my knowledge and belief, and subject to what I say in paragraph 19 below:
(a) Wagners did not deposit overburden, fill or other material on the Western Embankment that is marked in orange; and
(b) Wagners did not alter the height or profile of the Western Embankment that is marked in orange.
19. I have marked in yellow the general location of a bund on the Western Embankment which I believe was man-made (the Western Embankment Bund). I am unsure whether or not the Western Embankment Bund was constructed by Wagners or whether it already existed as at the date that Wagners acquired the Grantham Sandplant. In my experience, a bund of this nature generally exists to provide a safety barrier against people or vehicles falling into a pit."
[829] In spite of the express terms of paragraph 19, where Mr Wagner admits that the bund was man-made, Mr Jones insisted in cross-examination that, when read with paragraph 18, Mr Wagner was asserting that the bund was part of the natural landscape. The statutory declaration speaks for itself. It is apparent that Mr Wagner was not asserting that the bund was part of the natural landscape.[723]
[830] Mr Jones was also wilfully blind as to the truth or falsity of the Wellcamp Airport accusations. Heather Brown was a principal source of information for Mr Jones in relation to the airport.[724] Mr Jones had known Ms Brown for approximately 15 years. He described her as "a distinguished feature writer for [The Australian] newspaper".[725] They would communicate by text message approximately two to three times a week.[726] They would also communicate by email. More than two years prior to any of the matters complained of in relation to the airport, Mr Jones was in receipt of emails from Ms Brown which were highly critical of the plaintiffs. In an email to Mr Jones from Ms Brown dated 5 June 2012,[727] she writes:
"It's the story of how one ambitious family and their hand-picked team of henchmen took over an entire community - and along with it, Australians [sic] richest food bowl - so they could wipe it out for their own greed.
It was carefully and cleverly done behind the backs of all the good, ordinary, hard-working people of Toowoomba and the Darling Downs: the ratepayers, the farmers, businessmen, community leaders. The so-called Mountain Mafia used their money - and then they abused their trust."
[831] In another email dated 31 May 2012, Ms Brown wrote to Mr Jones as follows: "We have struck GOLD ... Well, this week the Godfathers of the town paid her back."[728] Ms Brown, therefore, as early as mid-2012 was referring to the plaintiffs as "the Mountain Mafia" and "the Godfathers" to Mr Jones. Mr Jones agreed that from the date of those emails he knew that Ms Brown was very hostile towards the plaintiffs,[729] yet she remained a principal source of information.
[832] Prior to accusing the plaintiffs on national radio of corruption in constructing the airport, Mr Jones was in receipt of an email from Ms Brown, dated 28 April 2013.[730] In this email Ms Brown refers to the fact she and Dr Pascoe had sought legal advice in relation to the plaintiffs' airport application. As was known to Mr Jones, Ms Brown and Dr Pascoe ran a horse stud neighbouring the airport. The legal advice from Mr Mark Hinson SC recorded in the email was that the airport application was legal. Mr Jones accepted that he knew that Mr Hinson SC had dismissed any arguments of illegality.[731]
[833] Prior to airing the accusations that the plaintiffs, for their own selfish and greedy purposes, stole airspace above the Oakey Army Base which would destroy the Oakey Army Base and harm the national defence interest, Mr Jones had received a letter from CASA, dated 16 May 2014. Mr Jones had written to Mr Terry Farquharson, the Deputy Director of Aviation Safety at CASA. In this letter he raised with Mr Farquharson concerns in relation to the Wellcamp Airport. Mr Jones referred to unnamed army sources who told him that CASA was required to do an environmental study before any airport could be approved. Mr Jones also raised with Mr Farquharson concerns that had been expressed in relation to the Oakey Air Base and its future operations in light of the development of the Wellcamp Airport.[732]
[834] In Mr Farquharson's reply dated 16 May 2014,[733] Mr Jones was informed and thereafter knew the following matters:
- (a) the proposed airport posed no threat to Oakey airspace and defence operations at Oakey because:
- (i) Defence had conducted a review which concluded that the Oakey Restricted Areas could be rationalised to better reflect the airspace needed for the safe conduct of military aircrew training;
"MR BLACKBURN: And when you made the broadcast on 26th of May 2015 that I took you to a few moments ago, you didn't say, did you, anything to the effect, 'I've been informed by the Civil Aviation Safety Authority that the airspace changes that came into effect regarding Oakey in May last year will have negligible net impact on military flying,' did you? You didn't say that on the broadcast?
MR BLACKBURN: And you didn't even inquire, did you, of anyone whether those changes were having negligible net impact on military flying, did you?
MR JONES: I didn't. No. Because, Mr Blackburn, Mr Farquharson isn't the government. There was no guarantee that Mr Farquharson's views were going to be embraced by the government.
MR BLACKBURN: Mr Jones, Mr Farquharson was the deputy direct[or] of aviation safety at the Civil Aviation Safety Authority, wasn't he?
MR JONES: But there are no guarantees that his views would be embraced by a government which had, in fact, expressed deep concern about the nature of the training facility at Oakey.
HIS HONOUR: But Mr Jones, it was [you] who addressed your inquiries to Mr Farquharson in your letter specifically addressed to him dated the 29th of April 2014?
MR JONES: Correct. Correct, your Honour."[738]
[836] The defendants submit that the caution with which Mr Jones dealt with Mr Farquharson's letter was justified.[739] In a radio interview with Mr Jones conducted with the then Prime Minister Mr Abbott on 5 March 2014 the following exchange occurred:
"ALAN JONES: ... your Defence Department is surrendering 40 per cent of the nation's army base at Oakey to a private airport in Toowoomba, which has met no environmental criteria, no noise assessment, no public input, no community consultation. But every cent the airport makes, if it was ever to make money, will go into the pocket of a private millionaire. Not a cent will come back to taxpayers if the government is surrendering 40 per cent of an army training base to this private millionaire ...
MR ABBOTT: That's a very fair question Alan. Now, when Stephen Smith was the Minister, a letter was written where Defence said it was completely unacceptable for the airspace around Oakey to have to be adjusted - this is the Oakey helicopter ... training centre. And we do a lot of work at Oakey, including a lot of work with our Singaporean friends and allies. ... And Defence, under Stephen Smith, said that they needed the airspace for the operational purposes of the base. Now, there've been some indications that Defence might of changed it's [sic] mind, and I am looking at that. I find it hard to believe that it could be unacceptable on day one for this airspace to be required by a private airport, and acceptable at some later date for it to be required. And I'm trying to get to the bottom of if and why Defence has changed its mind."[740]
[837] Prior to this broadcast Mr Abbott, as opposition leader, had informed Mr Jones in writing that the Oakey airspace was "sancrosanct".[741] These communications with Mr Abbott pre-date Mr Farquharson's letter. Mr Jones, however, by reference to these previous communications with Mr Abbott, suggested in evidence that "there are a whole heap of qualifications" in Mr Farquharson's letter which were yet to be resolved.[742] It was in this context that Mr Jones stated that it was not his job "to be running around writing to Defence and whatever. I'm not the industry ombudsman."[743] The difficulty with the defendants' submission is that Mr Jones' subsequent broadcasts after the receipt of Mr Farquharson's letter included assertions that the plaintiffs stole, or illegally obtained, airspace above the Oakey Army Base and that this would destroy the Base. These serious accusations were made on national radio without Mr Jones or any member of his staff investigating whether any of the perceived "qualifications" to Mr Farquharson's letter had been resolved.
[838] At no stage in the course of broadcasting the matters complained of in relation to Wellcamp Airport did Mr Jones once make any reference to, or inform his listeners of, the existence of Mr Farquharson's letter or the fact that Mr Jones knew that the airport development was legal.[744]
[839] Mr Jones accepted that a failure to take reasonable steps to ensure the accuracy of what he was broadcasting would constitute a dereliction of duty on his part.[745]
- Vicious and spiteful language
[840] Mr Jones agreed that some of the criticism he levelled against the plaintiffs was very savage, particularly in relation to Grantham.[746] I accept the plaintiffs' submission[747] that the tone of the matters and their content are self-evidently vicious and spiteful. In light of Mr Jones' wilful blindness to the truth or falsity of the imputations conveyed, his conduct in using such language was unjustifiable. Mr Jones variously described the plaintiffs as "selfish, insensitive grubs"; "stealing airspace"; as knowing only two things, "bullying and self-interest"; "hypocrites of the year"; and as being of "Wagner infamy".
[842] On 24 September 2013, one of Mr Jones' staff invited Ian Macfarlane, John Wagner and Mayor Paul Antonio onto the Jones Program. This was the only occasion on which Mr Jones had invited any of the plaintiffs onto his program.[750] According to Mr Jones, the response to this request was that none of the plaintiffs wished to speak to him and they made it quite clear that they would not speak to him. Mr Jones therefore considered he had no recourse because the plaintiffs would not come on his program.[751]
[843] This one invitation, which was made more than 12 months prior to the first matter complained of, and the response received by Mr Jones, did not, in my view, permit him to make such serious accusations without first informing the plaintiffs and seeking a response. Asking the plaintiffs onto the program is one thing; informing them of the accusations and requesting a response is another.
[844] Mr Jones asserted that if the practice of informing a person of an accusation prior to publication was followed, one would never get a program to air.[752] At no stage were the plaintiffs informed of any of the accusations to be made against them in the broadcasts.[753]
[845] In circumstances where Mr Jones aired on national radio very serious accusations concerning the plaintiffs over a period of 10 months, it was unjustifiable conduct not to make any inquiry of the plaintiffs or to seek a response from them or to inform them of the nature of the allegations.
[846] The defendants have refused to retract any of the defamatory imputations or to apologise. Mr Jones refuses to apologise because he holds to his views.[754] This includes his view that the plaintiffs are responsible or culpable for the deaths of 12 people at Grantham.[755]
- Persisting with justification defences
[847] The plaintiffs submit that the defendants, by pleading and persisting with a variety of justification defences, have acted in an unjustifiable manner, which has increased the harm suffered by each plaintiff. The plaintiffs further submit that none of these defences should have been pleaded, let alone maintained:
"It must have been obvious to the defendants at all times that none of their defences in this proceeding was of any merit whatsoever.
No responsible analysis could have resulted in advice to the effect that any of the broadcasts were substantially true. It was incomprehensible that the defences of truth and contextual truth were persisted with."[756]
[848] In Bauer Media Pty Ltd v Wilson (No 2),[757] the Victorian Court of Appeal determined that the learned trial judge had erred in making a number of findings as to circumstances of aggravation and, in particular, the finding that "no responsible analysis could have informed advice that any of the articles was substantially true". The Court of Appeal identified as the relevant issue whether there was any impropriety in counsel at trial putting forward the defences and arguments that they did.[758] The Court observed:
"While Bauer's arguments about justification at trial may have been weak and unpersuasive, they were not, of themselves, improper or unjustifiable. As we have said, care needs to be taken to separate the impropriety of a litigant in knowingly running a false defence and the conduct of a litigant's lawyers in pursuing arguments based upon evidence that was open to be accepted by the trier of fact ... There is nothing in the material before us that suggests that Bauer's solicitors or counsel were aware of Bauer's improper purpose in the publication of the articles. ... Moreover, additional care needs to be taken in this area to ensure that findings of impropriety are not based upon hindsight analyses. Whether a particular step in a proceeding was improper or unjustifiable or lacking in bona fides falls to be determined at the time the step is taken, rather than by reference to whether the jury did or did not 'comprehensively reject' the losing party's case."[759]
[849] In the present case, the defendants did not persist with substantial truth defences in relation to a number of imputations. To the extent that the defences were persisted with in respect of the Category 2 to 5 imputations, they were of limited scope. In relation to the Category 1 imputations, the defendants called and relied upon expert evidence as well as the evidence of eyewitnesses. As is apparent from my analysis at [442] to [600] above, the defendants failed to justify the Category 1 imputations because of a stark failure to establish any causal link between the collapse of the bund and the deaths of 12 people.
[850] In considering the substantial truth defences in respect of the other four categories of imputations, the defences may properly be viewed as weak and unmeritorious. They were, however, the subject of evidence from a number of witnesses including town planning experts, Ms Brown, Dr Pascoe and Mr Pinkerton, as well as reply evidence from John, Denis and Neill Wagner.
[851] Although I have found that the defences of substantial truth and contextual truth fail, I do not accept that the pleading and running of these defences constitutes unjustifiable conduct.
[852] What does, however, constitute unjustifiable conduct is Mr Jones in evidence repeating many of the defamatory accusations in circumstances where this Court had not yet made any findings in relation to the justification defences or the contextual truth defences.
- Mr Jones repeating defamatory accusations
[853] Mr Jones' conduct in repeating a number of defamatory assertions in the course of his evidence was unjustifiable. The repeating of these defamatory assertions was gratuitous and, as correctly submitted by the plaintiffs, often in answers that bore no connection with the questions that Mr Jones was asked.[760] The plaintiffs, in their written submissions, have identified the defamatory assertions repeated by Mr Jones:[761]
- (a) the plaintiffs were "not remotely concerned" about the deaths of 12 people at Grantham and "that's the Wagner attitude ... they want things done their way";[762]
- (b) the plaintiffs built the bund, the bund collapsed, and 12 people died;
Third, in spite of agitating for a fresh inquiry and notwithstanding his praise of Mr Sofronoff QC, Mr Jones has refused to accept the findings of the Grantham Floods Inquiry. His explanation as to why he has not accepted those findings does not withstand any sensible analysis. Mr Jones' evidence was as follows:
"At the end Mr Sofronoff accepted the conclusions of the hydrology report. Mr Blackburn, the hydrologists were accepted at the end of the report. The eyewitnesses weren't. And the hydrology report in the Sofronoff inquiry was cross-examined by Holt and Co QC. And I think they said - I think Holt's evidence was something - it stretches credibility or it tests one's sanity to believe the bund didn't cause it. But the hydrology reports were then presented at the end because Mr Blackburn, though you may not know it, they were being prepared concurrently with the inquiry. And people at the - people at Grantham thought the proper procedure should have been to have all the evidence assembled beforehand. The hydrologist report should have been compiled before the inquiry began so that every person had an opportunity to cross-examine the details of the report. They were being prepared concurrently with the Sofronoff inquiry. They only became available when the Sofronoff Inquiry was at its end, and Mr Sofronoff accepted those. But the witnesses to the collapse of the bund weren't given an opportunity to cross-examine or test what the hydrology report had found."[774]
"The witnesses weren't given a chance to cross-examine the hydrology. So my concern was that the hydrology reports were not correct, not accurate. And, therefore, while I accepted what Mr Sofronoff has said, I didn't accept the conclusions."[775]
[856] This was the first time that Mr Jones has publicly stated that he did not accept the conclusions of the Grantham Floods Inquiry.[776] Mr Jones' explanation for not accepting those conclusions ignores the fact that the eyewitnesses to whom he refers were represented at the Inquiry by Mr Holt QC.[777] As I comprehend Mr Jones' evidence, his assertion is that he is unable to accept Mr Sofronoff QC's conclusions because certain eyewitnesses, who were represented by Queen's Counsel, were unable to personally cross-examine the hydrology experts. This assertion is nonsensical.
(b) Mr Jones' motive to injure the plaintiffs' reputations
[857] The finding that Mr Jones was motivated to injure the plaintiffs' reputation is supported by a number of considerations. These include a number of matters which constitute unjustifiable conduct, such as the intrinsically vicious and spiteful wording used in the matters complained of, Mr Jones' wilful blindness to the truth or falsity of the defamatory accusations, and his failure to inform the plaintiffs of his intention to publish the matters complained of or to allow the plaintiffs any opportunity to respond to the allegation.
[858] When considered in the context of previous broadcasts, the publication of the matters complained of between 28 October 2014 and 20 August 2015 constitute part of a campaign of vilification against each of the plaintiffs. I have already discussed in paragraphs [746] to [754] above how prior broadcasts may be relied on by the plaintiffs for the purposes of establishing Mr Jones' motivation to injure the reputations of the plaintiffs.
[859] In a broadcast dated 13 December 2013,[778] Mr Jones made the following statements:
"The quarry wall collapsed, full stop. A quarry wall that shouldn't have been there. A quarry wall at Grantham, down the range from Toowoomba, that wasn't on the planning map. A quarry wall that Wagners owned and had no permission to build. And 12 people died as the quarry wall broke.
Wagners had been building this stuff up, building it up, building it up, building it up, building it up. The water overflowed, into the dam, into the quarry, and then whack, the wall broke and came down like an explosion. A quarry wall that Wagners had no permission to build. ...
Well the people are speaking. Without the Wagner quarry, many of these people wouldn't have died. ... Wagners quarry. The same bloke who's bullied and run over the top of people to build an airport. With no authority from the public at all. I'm Wagner I can do it. ... But nothing happens because the Wagners are untouchable. Well that's until now. And the Wagners should be called before a reopened inquiry until we f[ind] out what really did cause the deaths at Grantham. ... The Grantham story isn't even partly told. But it's a story of dishonesty and treachery and it's going to be exposed. ... Why should the Grantham flood victims be treated any differently? Lies at levels of government, this letter writer sent to me. Municipal murder."
[860] When cross-examined in relation to this broadcast, Mr Jones did not resile from the description 'municipal murder'. He stated, "I don't know how else we describe the death of 12 people". In evidence, Mr Jones repeated his assertion that without the quarry, 12 people would not have died. He referred to this as "a self-evident fact".[779] The vicious language of this broadcast and the reference to 'municipal murder', together with Mr Jones' refusal in evidence to resile from these statements, constitutes compelling evidence that Mr Jones was motivated by a desire to injure the plaintiffs' reputations.
[861] Another example of this is two previous broadcasts of 29 May 2014[780] and 20 June 2014.[781] In these broadcasts Mr Jones taunts the plaintiffs in relation to obtaining contracts for airlines to fly into the Wellcamp Airport. In the 29 May 2014 broadcast, Mr Jones states: "Perhaps Mr Wagner can tell us which airlines have signed up to this socalled Toowoomba airport. Have Virgin and Qantas signed up?" Mr Jones accepted in cross-examination that he was taunting the plaintiffs by suggesting that no airlines would fly into their airport. He believed that no airline would, in fact, fly into Wellcamp Airport.[782] He had stated this to his listeners on a number of occasions.
[862] In the broadcast of 20 June 2014, Mr Jones made a satirical reference to the Beverly Hillbillies and the Clampetts in speaking of the plaintiffs and Wellcamp Airport:
"And I was thinking last night, this Wagner Airport in Toowoomba, I wonder when Mr Wagner is going to tell us which airlines are flying into his airport, or Mr Wagner, have you misled the Toowoomba people about that as well? Because, as a Toowoomba listener wrote to me to say, I have a vision of big Johnny, as in Johnny Wagner, with a feather up his backside running up and down his empty runway calling out vroom, vroom, vroom, and pretending it's a plane because there are none.
Maybe, Johnny, we could call it Clampett airlines. After all, you promised the public it would be a major airport with major national airlines, like Qantas and Virgin ... then we have cousin John and cousin Denis Wagner. They can be the travel agents for Clampett Air. ... Clampett Air, here today, and gone tomorrow. You will get it all in Queensland, I've got to tell you. You get it all in Queensland. Johnny Clampett, eh? Tell us, Johnny, when are the airlines going to hit the track in Toowoomba?"
[863] In evidence Mr Jones accepted that when he made this broadcast on 20 June 2014 he believed that no passenger airline would be persuaded to fly into Wellcamp Airport.[783]
[864] Following these broadcasts, Mr Jones learned that Qantas had agreed to fly into Wellcamp Airport. This came as a surprise to him.[784] There followed an exchange of emails between the Chief Executive Officer of Qantas, Alan Joyce, and Mr Jones. In an email sent by Mr Jones on 3 September 2014 to Mr Joyce, he stated:
"Are you seriously telling me you're flying planes into Wellcamp. After all the discussions we've had?
Here we are at a point of significant national security need and in what I regard as one of the most corrupt infrastructure deals ever done, Wagner has been given 40 per cent of the Oakey air space. This was a base given to the Government in war time to train helicopter pilots. That need now is more urgent than ever. Julia Gillard refused the request for air space to go to Wagner out of the Army base. Defence Minister Stephen Smith refused the request. The Defence Department and others presented 140 pages of submission as to why this shouldn't happen. Gillard was sacked, Rudd came in. Rudd thought he was going to lose Griffith. He wanted heavy aircraft to be removed from the flying space over his electorate. Rudd is a mate of Macfarlane, the local Federal Member.
Tony Abbott told me on air many times that a private millionaire would never be given public and national air space. But before Tony Abbott was sworn in a deal was done.
I could go on. I told you all of this. You assured me that you understood. And now I'm told today you're going back on your word and you are endorsing this behaviour. I have to tell you I'm not the only one who is beyond disgusted."[785]
"When we spoke about Wellcamp several months ago, I indicated to you that QANTAS had not made a decision on the airport and that I would look into the matter.
Since that time, we have held many long discussions with the operators of the airport. Their offer to QANTAS is commercially very attractive, and one that our competitor would have also taken if provided the opportunity.
Since we last spoke, I have also been contacted by numerous Federal Cabinet Ministers on this issue who are very supportive of Wellcamp and believe it will provide economic growth and job opportunities in the future for this region. We have also discussed the airport and its operations at length with the Department of Infrastructure and Regional Development, who are also supportive of this development.
My team have also met with local business people and community leaders who are also supportive of Wellcamp."[786]
[865] Mr Jones replied to this email on the same day in the following terms:
"Alan, I fear we're on a collision course. Of course these people will bribe you to go there. You call it 'commercially very attractive'.
Are you aware that there is no environmental impact statement for this airport, no community consultation, no compensation to people living under the flight path or going to schools or to farmers next door or to a thoroughbred breeder across the road. No compensation. ... Did it ever enter your head why all these people were lobbying you or why they were bribing you? Alan, I'll have to reserve my decision here but I may well go public. This is a massive story. Qantas have entered where, on principles of ethics and common decency, let alone national security vis-a-vis Oakey airport, they should never be.
My final words to you are these. This is a monumental blunder."[787]
[866] Mr Jones in evidence sought to justify his reference to the plaintiffs "bribing" Mr Joyce by suggesting that the plaintiffs' offer to Qantas was not "an orthodox commercial deal".[788] There is no evidentiary basis for this suggestion. Mr Jones assumed that some inducement had been given to Qantas to fly into Wellcamp Airport.[789] Again, there is no evidentiary basis for this assumption. I accept the plaintiffs' submission that the correct inference to be drawn is that Mr Jones engaged in this email exchange (and whatever other discussions he had with Mr Joyce referred to in the email exchange) motivated by a desire to injure the plaintiffs and their business by ensuring that Qantas did not fly into Wellcamp Airport.[790] Mr Jones accepted that he had previous discussions with Mr Joyce prior to sending his first email on 3 September 2014. In those discussions he had raised similar matters with Mr Joyce as contained in his email.[791] The email refers to there being no environmental impact statement for the airport and no community consultation. Mr Jones denied that in his discussions with Mr Joyce he was trying to persuade or convince Mr Joyce not to fly into Wellcamp Airport.[792] I do not accept this denial. The email communication speaks for itself. Mr Jones, by informing Mr Joyce that he was reserving his decision whether to "go public" and by describing Mr Joyce's decision as "a monumental blunder", supports the proposition that in his previous discussions with Mr Joyce, Mr Jones was seeking to ensure that Qantas would not fly into Wellcamp Airport. The rejection of Mr Jones' evidence in this respect is further supported by the fact that Mr Jones also communicated with Mr John Borghetti, the Chief Executive Officer of Virgin. Mr Jones' evidence was that in his discussions with Mr Borghetti he raised issues concerning the plaintiffs "stealing" 40 per cent of the Oakey airspace and the national security implications.[793] He discussed with Mr Borghetti that the construction of the airport involved a "corruption of process".[794] Mr Jones accepts that he would have emphasised to Mr Borghetti that it was a very corrupt process.[795]
[867] The defendants submit that I should not make a finding that Mr Jones was motivated to injure the plaintiffs' reputations because when it was suggested to Mr Jones that he hated the Wagners and wanted to see them injured, his response was: "I don't hate people. I'm only trying to serve the concerns expressed to me by the community", and "I don't hate people, Mr Blackburn. I'm just trying to represent public concerns". Mr Jones' response to the suggestion that he might be satisfied if no-one flew into the Wellcamp Airport was, "I like people succeeding, Mr Blackburn. I don't like people failing." I do not accept the import of this evidence. It is wholly contradicted by Mr Jones' unjustifiable conduct identified in [818] to [840] and [842] to [856] above, the content of the email exchange with Mr Joyce, and Mr Jones' discussions with Mr Borghetti.
(c) Increased harm to the plaintiffs' feelings and reputations
[868] Each plaintiff gave evidence as to the effect on them of Mr Jones repeating the defamatory imputations. John Wagner stated that the repeating of the accusations about Grantham made him feel variously "angry", "disappointed", "humiliated" and "embarrassed". He also noted the lack of remorse or acknowledgment shown by the defendants.[798] John Wagner stated that the allegations that the Wagner family conspired with politicians to cover up Grantham (notwithstanding the defence of truth having been dropped) was a "very hurtful thing to say".[799] He said that maintaining the allegations about the airport made him feel humiliated, disappointed, hurt and embarrassed.[800]
[869] As to Mr Jones' email exchanges with Mr Joyce, John Wagner stated that what affected him most was that the Wagner family came very close to not having any airlines fly into the Wellcamp Airport. This, he stated, could well have bankrupted the company.[801] Upon learning that Mr Jones made similar comments to Mr Borghetti, John Wagner said he felt extreme hurt and embarrassment.[802]
[870] Denis Wagner felt "indignant" and "humiliated" at Mr Jones' suggestion that he had lied in his statutory declaration, and was "very offended" that Mr Jones had asserted that the Wagners were not remotely concerned about the deaths of 12 people in Grantham.[803] Hearing Mr Jones continue to maintain that the Wagners were responsible for the deaths of those people was, for Denis Wagner, "gut-wrenching".[804] Mr Jones' accusation that he and his brothers had destroyed the Oakey Defence Base for their own selfish, greedy purposes caused Denis Wagner to feel he had been "quite unfairly" shamed.[805] He considered these allegations to be "extremely offensive and extremely humiliating".[806]
[871] Denis Wagner's feeling was one of shame arising from Mr Jones' accusations that the Wagner family had conspired with politicians to cover up Grantham:[807]
"... people may think that we had sort of colluded with senior Federal Government politicians to try, and, you know, change history and facts."
[872] As to Mr Jones' email exchanges with Mr Joyce, Denis Wagner was deflated and disheartened upon learning of the exchanges, particularly because Denis Wagner considers Alan Joyce to be one of Australia's senior business leaders.[808] Upon learning that Mr Jones made similar comments to Mr Borghetti, Denis Wagner said he was "annoyed, concerned as to ... what impact that may have had or has had."[809]
[873] The evidence of Neill and Joe Wagner was to similar effect.[810]
[874] I accept the plaintiffs' submission that the cumulative effect of the aggravating conduct has greatly increased the harm to the plaintiffs' reputations and to their feelings.[811]
[875] In mitigation of damages the defendants rely on the following two pleaded facts:[812]
- (a) the plaintiffs have recovered damages for defamation from The Spectator (1828) Ltd and Mr Cater in relation to the publication of matter having the same meaning or effect of the matters complained of in these proceedings;
- (b) the plaintiffs have brought proceedings against Nine Network Australia Ltd (and associated entities) and Mr Cater for damages for defamation in relation to the publication of a 60 Minutes program having the same meaning or effect as the matters complained of in this proceeding.
[876] The plaintiffs' proceedings against The Spectator and Mr Cater (10981/15) were commenced in the Supreme Court of Queensland. The amended statement of claim dated 24 May 2016 pleads that the matter complained of conveyed that each of the plaintiffs:
- (a) by failing to prevent a crude mound of clay and earth that had been constructed on the quarry he owned from collapsing, caused the killer flood that wrecked the town of Grantham and killed 12 people, including a one year old girl who was ripped by the force of the water from her exhausted mother's arms;
- (b) had inflicted a nightmare on the decent, honest, hardworking people of Grantham by reason of being the owner of a quarry whose wall collapsed, causing a killer flood which had wrecked the town and killed 12 people, including a one-year-old girl;
- (c) has told a wall of lies in order to cover up the true cause of the Grantham flood and to avoid having to answer for his role in the deaths of 12 people, including a oneyear-old girl, in the flood; and
- (d) in the alternative to (c), took part in telling a wall of lies to cover up the true causes of the Grantham flood and to avoid having to answer for his role in the deaths of 12 people including a one-year-old girl in the flood.
[877] The Spectator proceedings were settled on 13 July 2017 following the acceptance of an offer of $440,000 plus costs.
[878] In a media release dated 22 November 2017, the plaintiffs issued the following statement:
"The Toowoomba-based Wagner family has settled their defamation case against London-based The Spectator Australia magazine and Sydney journalist Nick Cater.
Brothers John, Neill, Denis and Joe launched a suit after an article titled 'Dam Busters! How Cater and Jones burst Grantham's wall of lies', ran on the front cover and on page 7 of its August 1, 2015 edition.
The Spectator has paid the Wagner Brothers $572,674 to settle their claim.
Denis Wagner said on behalf of his family, 'We are pleased with the successful resolution of the claim, which vindicates the stance we have taken in this matter. We are now focusing on vindicating our reputations in our cases against Alan Jones and Channel 9."[813]
[879] The Nine proceedings (11789/15), which were also commenced in the Supreme Court of Queensland, are as yet unresolved.
[880] The amended statement of claim dated 24 May 2016 in the Nine proceedings pleads that the matter complained of conveyed that each of the plaintiffs:
- (a) 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) 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; and
- (d) 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.[814]
[881] The pleaded imputations in both The Spectator proceedings and the Nine proceedings do not include many of the imputations conveyed in the present case. There are, for example, no pleaded imputations in relation to bullying and intimidation, greed and self-interest, or the Wellcamp Airport.
[882] Section 38 of the Act relevantly provides:
(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that -
(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter."
[883] This provision represents a change from the common law position. At common law it was impermissible for a defendant to tender other defamatory statements concerning the plaintiff, and thus evidence was inadmissible that a plaintiff had recovered damages for other defamatory publications.[815]
[884] Section 38 is in similar terms to s 48 of the Defamation Act 1974 (NSW), which in turn was modelled on s 24 of the Defamation Act 1958 (NSW). Section 24 provided:
"At the trial of an action for the publication of defamatory matter the defendant may give in evidence, in mitigation of damages, that the plaintiff has already recovered, or has brought actions for damages, or has received or agreed to receive compensation in respect of other publications of defamatory matter to the same purport or effect as the matter for the publication of which such action has been brought."
"The purpose of the section was correctly explained to the jury. They were directed in effect that the defendant must answer fully in damages to the extent that its publication has brought about damage to reputation, but for the damage solely caused by its publication. There may be an area where damage is suffered by the joint operation of two different libels. The section is designed to permit evidence to be given with the object of preventing a plaintiff receiving double compensation for that sort of damage. His Honour read to the jury the following passage from the speech of Lord Reid, delivered in the House of Lords in 1963, in the case of Lewis v Daily Telegraph Ltd [1964] AC 254 at 261: 'In effect it requires that each jury shall be told about the other action, but the question is what each jury should be told. I do not think it is sufficient merely to tell each jury to make such allowance as they may think fit. They ought, in my view, to be directed that in considering the evidence submitted to them they should consider how far the damage suffered by the plaintiffs can reasonably be attributed solely to the libel with which they are concerned and how far it ought to be regarded as the joint result of the two libels. If they think that some part of the damage is the joint result of the two libels they should bear in mind the plaintiffs ought not to be compensated twice for the same loss. They can only deal with this matter on very broad lines and they must take it that the other jury will be given a similar direction. They must do the best they can to ensure that the sum which they award will fully compensate the plaintiffs for the damage caused by the libel with which they are concerned, but will not take into account that part of the total damage suffered by the plaintiffs which ought to enter into the other jury's assessment.'"
[886] In Thompson v Australian Capital Television Pty Ltd & Ors[818] Miles CJ stated:
"All that can be gleaned, with respect, is that the section is to be applied in a broad way with the object of preventing a plaintiff from receiving double compensation and whilst requiring the defendant to answer fully in damages to the extent that its publication has brought about damage to reputation, to restrict those damages to the injury caused by the publication by the defendant sued upon by the plaintiff."
[887] The defendants accept that, to the extent damages are awarded to compensate hurt to feelings, there is no basis to conclude that any of the evidence given by the plaintiffs as to their hurt feelings was the consequence of what was published in The Spectator. It is the hurt suffered by the plaintiffs arising from the matters complained of in the present proceedings that is to be compensated.[819]
[888] For the following reasons, I am of the view that the effects of The Spectator proceedings and the Nine proceedings are of insignificant weight in mitigation of damages for the publication of the matters complained of.
[889] First, the defendants' submission that the payment in The Spectator proceedings means that the plaintiffs have already been compensated for the damage to their reputation in relation to the Grantham accusations cannot be accepted.[820] Mr Cater was the author of the article in The Spectator. In his evidence in the present proceedings Mr Cater stated that he still does not accept the idea that the quarry did not play a role in the deaths of 12 Grantham residents.[821] Further, he stated that he disagrees[822] with the following observation made by Mr Sofronoff QC (as his Honour then was) in the Grantham Floods Commission of Inquiry Report:
"I say all this in order to stress one final consideration. It is that any person with the willingness to read and to 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."[823]
Senior Counsel for the defendants accepted in oral submissions that Mr Cater's evidence "diminished" the mitigating effect of the settlement of The Spectator proceedings in terms of vindicating the plaintiffs' reputations.[824]
[890] Second, a defendant must answer fully in damages to the extent that its publication has caused damage to the plaintiff.[825] As I have already observed, the imputations sued on in The Spectator proceedings and the Nine proceedings are limited to Grantham.
[891] Third, neither Mr Jones, 2GB nor 4BC are parties to The Spectator proceedings or the Nine proceedings. No part of the settlement sum in The Spectator proceedings constitutes vindication of the plaintiffs' reputations for the defamatory matters published by these three defendants. I accept the plaintiffs' submission that:
"They must be vindicated for what was said by an extremely influential and well known broadcaster, Mr Jones, and the amount awarded must be sufficient to convince the bystander of the baselessness of the charges made by Mr Jones."[826]
[892] Fourth, the readership of The Spectator was extremely limited (approximately 3,000), compared to the extensive listenership of the matters complained of. Further, there was no evidence that the readership of The Spectator would be likely listeners of the matters complained of.[827]
[893] Fifth, the Channel 9 proceedings remain unresolved. In Rayney v The State of Western Australia [No 9],[828] Chaney J considered that unresolved proceedings do not provide any basis to reduce the damages that might otherwise be awarded. This proposition was accepted by Senior Counsel for the defendants in oral submissions:
"... I think very little can be taken from the fact of the existence of the Nine proceedings. There's very little about them that serve in any way to mitigate the damage ... Your Honour ought note them, but that's really about all we can say about them."[829]
[894] For the 27 matters complained of concerning Mr Jones and 2GB, each plaintiff seeks an award of damages including aggravated damages (and factoring in any mitigation) in the sum of $1,200,000.
[895] I note that this sum is approximately double the general damages awarded by John Dixon J in Wilson[830] and by Chaney J in Rayney.
[896] For the two matters complained of concerning Mr Jones and 4BC, each plaintiff seeks an award of damages including aggravated damages (and factoring in any mitigation) in the sum of $300,000.
[897] Damages are "at large" in the sense that they cannot be arrived at through calculation or the application of a formula, and are therefore necessarily imprecise.[831]
[898] The parties made submissions seeking to distinguish the basis of the awards of damages in Wilson and Rayney from the present case. While both these decisions are of assistance, in that they constitute an award of general damages including aggravated damages in circumstances where damages for non-economic loss were not limited to the cap established by s 35(1) of the Act, the determination of any award for damages must be arrived at by a proper application of the relevant principles to the circumstances of the present case. The relevant exercise was identified by Chaney J in Rayney:
"The task is to determine an amount which sufficiently compensates the plaintiff for the personal distress and hurt caused to him, for reparation of the harm done to his reputation, vindication of that reputation, and compensation for the aggravating circumstances of the publication."[832]
[899] In Wilson, defamatory imputations were published in eight separate articles to the effect that the plaintiff was a liar.[833] The plaintiffs submit that in awarding the sum of $650,000, John Dixon J did not take into consideration in that award the plaintiff's business reputation. This was because the impact of that part of the plaintiff's reputation was the subject of submissions as to whether it should be compensated by way of an award of Andrews damages or special damages. His Honour found the latter.[834] According to the plaintiffs the significance of this is that the award of $650,000 (altered to $600,000 on appeal) did not factor in the plaintiff's business reputation.[835] This submission may be accepted.
[900] The defendants, however, submit that in Wilson the defamatory matter was published in the print edition of the Woman's Day magazine and seven further articles on the websites of Women's Weekly, New Weekly and OK! magazines. The estimated readership of the print edition of Woman's Day alone was 1,514,000 people. The article that was published on the Woman's Day website attracted 42,187 page views within Australia, and the other six on-line articles attracted a combined total of 14,724 page views within Australia.[836] While I have found that the publication in the present case was very extensive, I accept that the publication of the defamatory matter in Wilson was, in all likelihood, wider. John Dixon J also found that as a tabloid magazine, the Woman's Day article had a long life in public places, such as health practitioner offices, hair salons, and public waiting places.[837] This is to be contrasted with the present case where the broadcasts were transitory, albeit also available on the 2GB and 4BC websites.
[901] The imputations conveyed in the present case are, however, in my view, far more serious than those conveyed in Wilson. I have dealt with the seriousness of the imputations conveyed in the present case at [787] to [789] above. Accusations of lying were only one of a number of accusations made by the defendants in relation to the plaintiffs. The other accusations include the plaintiffs being responsible for the deaths of 12 people at Grantham, including children. They also included allegations of bullying, intimidation, selfishness, greed and corruption.
[911] The parties agree that the plaintiffs are entitled to interest on any award of damages at three per cent per annum from the date the cause of action arose to the date of judgment.[847]
[912] As to the 27 matters complained of concerning 2GB and Mr Jones, the relevant broadcasts were aired between 28 October 2014 and 20 August 2015. For the purposes of calculating interest I have adopted a mid-point between those dates, being 25 March 2015. Interest is therefore calculated for the period of three years and 172 days from 25 March 2015 to 12 September 2018. The calculation of interest at three per cent on the amount of $750,000 for each plaintiff is $78,102.74.
[913] The Fifth and Sixth Matters concerning 4BC and Mr Jones were aired on 24 and 26 February 2015. I have calculated interest at three per cent from 25 February 2015 to the date of judgment. This is for a period of three years and 200 days. The calculation of interest for this period at three per cent for each plaintiff is $10,643.84.
[914] Each plaintiff seeks a permanent injunction to restrain Mr Jones, 2GB and 4BC, whether by their directors, officers, servants or agents, from continuing to publish or broadcast the same or similar words defamatory of him.
[915] The defendants submit that such orders are not warranted as there is no evidence publication continued after the commencement of these proceedings or that there is a current threat of anything similar being said in the future.[848] The plaintiffs submit that Mr Jones has maintained his belief in the truth of many of the defamatory imputations conveyed. Further, injunctive relief is appropriate as none of the defendants have undertaken not to repeat the defamatory imputations.[849]
[916] In light of the fact that Mr Jones, in the course of giving his evidence, chose to continue to attack the plaintiffs' reputations and to repeat many of the defamatory imputations, I am of the view that the injunctive relief sought is appropriate.
As against the first defendant and second defendant
As against the second defendant and the third defendant
As against the first defendant and second defendant
As against the second defendant and the third defendant
As against the first defendant and second defendant
As against the second defendant and the third defendant
As against the first defendant and second defendant
As against the second defendant and the third defendant
(e) First, Second, Third and Fourth Plaintiffs
21. The plaintiffs' claims against the fourth defendant are dismissed.
First matter - broadcast on 28 October 2014 (at about 8:12 am)
ALAN JONES: A very significant day in Queensland today; the outstanding independent Dr Alex Douglas will make a speech to the Parliament of Queensland on Grantham about 11am this morning. Of course the deaths of people which have never been investigated. It is not going to be comfortable for any Government. Big things are said to come out of Queensland this week. Remember the Lachlan Murdoch speech last week? Journalism he said - his grandfather said - must be dedicated to the truth. That might be Lachlan Murdoch's view - it's not the view at one of News Limited papers The Courier Mail. Grantham is one of the most corrupt metaphors in Australia. Why has no newspaper covered it? There are many people appalled and angered at what happened. Why was a Grantham cover-up orchestrated? Who was being protected?
This is all tied up with mining. Was the cover-up to protect Queensland Gas and its major owner British Gas? The Grantham Quarry was owned by Wagners, they were already in partnership with the Wood Group, the British coal seam gas supply group that
works with British Gas. Does that make Wagner untouchable? My understanding is that the highest levels at News Limited have been briefed on what is going on in the wake of the Lachlan Murdoch speech. A few editors may well be nervous with New York asking why haven't these matters been addressed.
Today Alex Douglas the Independent will take the Grantham case a step forward in the Queensland Parliament at 11am. It's being asked in the Kurtley Beale case why the cover-up from the ARU? Well may we ask in Queensland why the Grantham cover-up? The answer in both is the same; those doing the covering up have got plenty to hide. Stay tuned.
Second matter - broadcast on 29 October 2014 (at about 7:13 am)
ALAN JONES: Yesterday, as I mentioned, in the Queensland Parliament that outstanding Independent Dr Alex Douglas made a moving speech about the Grantham tragedy 2011. The speech is up on Facebook. There is massive public outrage from those who know. Remember that Lachlan Murdoch speech last week, the dedication to his grandfather Sir Keith Murdoch, that journalism must be dedicated to the truth. Not the view of the Murdoch newspaper, The Courier Mail in Queensland. And it appears as though the only person in a position of responsibility speaking the truth on this is the Queensland Independent MP Dr Alex Douglas. Grantham may be one of the most corrupt metaphors in Australia. As I asked yesterday, why has no newspaper covered this? Why was the Grantham cover up orchestrated? Who was being protected? And I say again, this is all part of the mining invasion. Was this cover up to protect Queensland Gas and its major owner, British Gas? After all, the Grantham quarry which accumulated the water and then the banks burst and a tsunami claimed 19 lives. 17 lost, two other persons never found - presumed dead - on the 10th January 2011. The Lockyer Creek catchment is 75 kilometres west of Brisbane. The regional city of Toowoomba sits at the top of the range, looking down on the Lockyer Valley. It's the western boundary. Waters rose eight metres in 30 minutes - the equivalent of one metre every four minutes. The whole population of the Lockyer Valley is only 37,000. No investigation. A tragedy of magnitude that should shame politicians and those dedicated to seeking the truth into some sort of an investigation. Why a cover up? Well as I said, the quarry was owned by Wagners; they were already in partnership with the Wood Group, the British coal seam gas supply group that works with British Gas. Does that make Wagner untouchable? We've been talking about an ARU cover up of the truth in relation to Kurtley Beale, here's a cover up in relation to the Grantham catastrophe. Why? The answer to both issues is the same: those doing the covering up have a lot to hide. Yesterday in the Queensland Parliament, Dr Alex Douglas called it an unresolved tragedy. He argued that the victims and their families were mostly poor, not well-educated, battlers, living on the fringe of all big urban societies. As he said, they had no influence. And he said: post disaster, they've either been ignored, silenced, chastised or punished. They simply demand fairness. The local Lockyer Mayor Steven [sic] Jones is an outstanding human being; he alone in the area is fighting for answers and being vilified for his trouble. The Premier of Queensland refused to investigate it - Campbell Newman. The Labor Government of Anna Bligh covered it up. As Alex Douglas said yesterday, the Independent from the Gold Coast, it's not acceptable for members here today to sit comfortably on parliamentary leather when those marginalised, totally unprepared families of victims, communities living with those families and some still unidentified victims in unknown morgues, suffer in silence. He said in relation to the Grantham Flood Inquiry: I am demanding today a Royal Commission into all matters relating to what occurred in Grantham before, during and after this so-called event. It was a moving statement by Dr Douglas, but the matter remains unresolved. You might recall I spoke only a couple of weeks ago to Marty Warburton who owns the service station in Grantham; he saw it happen. And he said: a funnel of water crashed through the front door of his, picking everything up that was in the showroom and smashing it into the back wall - fridges, freezers, shelving and everything. He said: within a minute the water went from a trickle in the street to waist-deep inside my shop. He said it was like being towed behind a boat the water was flowing so strongly. He said: I couldn't believe what I was seeing; the water, the debris, the cars, the shipping containers coming towards me. And remember, I'm sorry I repeat it, he said this: I saw arms flapping around like someone trying to swim. I leant over the awning and grabbed the hand of the person to drag them up on to the awning. As I pulled on the arm, the person rolled over and their whole face was missing. I saw right into their skull. In shock I let go. This still haunts me to this day. He said: it wasn't a normal flood. He'd seen 14 in 21 years. He said: this was when I saw a house come loose from its stumps and start floating through the paddocks. People dying in their homes. There were only six of the 19 deaths resulting from people being in vehicles. A staggering 13 of the 19 people killed were washed out of their homes, disappeared as the house was washed away or they drowned in their home. Yet of the 73 recorded flood deaths in Australia over the 12 years from 1997 to 2008, approximately 50 per cent of deaths related to motor vehicle use - that is crossing a flooded road, a further 25 per cent were attributable to inappropriate or high risk behaviour during floods - that's like little kids playing in a flooded creek, another 16 per cent were associated with attempts to swim or wade across flooded waterways. In other words, a study into flood deaths called Flood Fatalities in Contemporary Australia by a group of authors and researchers, an official piece of scholarship, assessed the 73 recorded flood deaths in Australia over the 12 year period from 1997 to 2008 and found 90 per cent of the flood deaths in Australia were as a result of choices made by an individual, choices to engage in inappropriate risk-taking behaviour - entering flooded waterways either by foot or in a vehicle. But here at Grantham 70 per cent of the people were killed in their own homes. In the Fitzgerald piece of scholarship, not one of the 73 people killed by floods between 1997 and 2008 was in their home at the time of the flood. That's what Marty Warburton was alluding to. He saw houses come loose from their stumps and floated through the paddocks. There have been no answers to any of this. He said: the water was diverted out of Lockyer Creek at the Wagners Sand Plant site right where a dam wall had been constructed across the creek. There was a flood inquiry. Marty Warburton raised all of this with the Flood Inquiry; he said it never got a mention. He said: the bullying and intimidation I witnessed - he said to me in a letter - and experienced towards those who stood up and asked questions about the event or made comments during the recovery that authorities didn't agree with, the bullying and the intimidation was disgusting to say the least. He said: many locals raised the issue regarding Wagners dam and its effect and several community meetings after the event, but the issue was always dismissed by authorities. He said: I even raised it with several submissions to the Flood Inquiry; it never got a mention. I was never asked about it when I was on the stand giving evidence at the Flood Inquiry. Dr Alex Douglas yesterday called for a Royal Commission as to what happened on the night of January 10, 2011. Most of you listening to this program know of Nick Cater, the author of that magnificent text on Australia, its strengths and its limitations, . Nick Cater was so disturbed as a journalist and an Australian, he went there, in his words: to examine the circumstances of the Grantham flood. He wrote to me, having heard me talking about this and said: there is no doubt in my mind that this was a man-made disaster, it should be fully investigated. He said, quote: my heart goes out to the people of the Lockyer Valley who suffered in the flood and continue to suffer because they feel no one believes them. He said: this is Australia, they deserve better. Remember what I said, Lachlan Murdoch made an outstanding speech - the Sir Keith Murdoch oration - and talked about his grandfather at Gallipoli. His central theme was: his grandfather's challenge for journalists to hunt down the truth. Why haven't his own journalists and editors hunted down the truth of Grantham, and the Wagner airport, and the mining invasion? How would you or I like to be a relative of a family who lost their loved ones at Grantham and no one has bothered to find out why? Or a family whose farm is surrounded by mining leases and therefore your farm is worth nothing? According to the Lachlan Murdoch oration in honour of his grandfather the challenge is to hunt down the truth. Before I speak to Nick Cater let me tell you what happened the day after, in the hours after Dr Douglas gave his speech in the Parliament yesterday calling for a Royal Commission. He was confronted by the local state member, a member of Newman's team, Ian Rickuss. He came rushing up to Dr Douglas, red-faced and flustered, carrying a pile of books and folders and notes all dog-eared and sticky pads everywhere and he said to Alex Douglas: you need to read this, you didn't read the Flood Report properly, it was all the Council's fault - this is the local Council. Dr Douglas said: Ian, I did read the Flood Report very carefully and I do know whose fault it was. Rickuss then changed tack, going from flustered and desperate to hostile. This is a member of the Newman Government, demanding that Alex Douglas withdraw his call for a Royal Commission because some of Rickuss' best mates may well have been involved in the cover up. Dr Alex Douglas yesterday responded in a speech of compassion and decency.
Third matter - broadcast on 29 October 2014 (at about 7:22 am)
ALAN JONES: The same qualities that have been exhibited by this man, Nick Cater. One of Australia's eminent journalists, searching for the truth. He's on the line. Nick Cater, good morning.
ALAN JONES: Thank you for your time. You've written that when the Queensland Flood Commission released its controversial report on the floods of 2011, its findings on Grantham were greeted with disbelief.
NICK CATER: Yeah, that's right. Because, you know, the story you heard from Marty Warburton, you will hear scores of times over. People that were caught in that sudden rush of water - inland tsunami, some people called it. And those statistics you drew attention to just now are very, very interesting because it does show that this was an extraordinary flood. There are lots of floods in Australia, sadly people get caught in them, sometimes people drown. But it is highly unusual to see houses, numbers of houses, floating down the street. In one case a house exploding because - what happened was it got so filled with water that the poorly constructed double brick veneer couldn't hold that water and the town house basically exploded. Eye witnesses tell of this but, you know, you can look at the pictures afterwards, you can see what happened. Three people died in that house. So this was an extraordinary event and you'd think that a Flood Commission would go to enormous lengths to find out what happened. But what they did was commission one single hydrology report; that was all. It was by Sinclair Knight Merz, the scientist was Dr Phillip Jordon, he produced his interim report without even visiting Grantham.
ALAN JONES: I'm sorry to interrupt you, but Sinclair Knight Merz have got their hands over everything in Queensland, haven't they? Aren't they the people who were heavily involved in working with Wagners on the Wellcamp Industrial Estate - they're the same people.
NICK CATER: And I think, Alan, we've gotta be very careful with this story, how far we go. There may be cover ups, things that have undoubtedly been covered up - I don't know by who or why. My real concern is just to say let's start by saying what happened on the day and then we'll see what flows from that.
ALAN JONES: Well on that you wrote, you have written: the lethal waves that devastated the rural town of Grantham and drowned ten adults and two children originated in a nearby quarry where an artificial levee, less than ten years old, held back millions of tonnes of storm water before bursting in two places.
NICK CATER: That's right. Now the Sinclair Knight Merz report says there was a quarry wall 3.5 to five metres high. So you can imagine, that's twice the height of, you know, a reasonably tall person. There's water that's held back behind there. The Sinclair Knight Merz report says that there was one break in the quarry wall and that water just basically trickled through that. Now, there are two breaks in the quarry wall and that's not controversial - you can see it in the aerial videos that were shot and people will tell you of that second burst.
ALAN JONES: [Interrupts] Yes, there is footage shot by Channel 7, isn't there?
NICK CATER: Yeah, yeah, yeah. And the ABC. But the main footage - Channel 7 - I've looked at several hours of this footage and it is clear that the water is coming through two breaks in the wall.
ALAN JONES: [Interrupts] So why didn't the hydrologist - why didn't, Nick, the hydrologist and the Commission test their findings against that photographic evidence of the damage the flood caused with two breaks in the wall? Why didn't they test it against that evidence?
NICK CATER: Well I don't know, Alan. But clearly they should have done because the report was done completely with computer modelling. Now we know the problems with computer modelling, we've seen it in climate science that very often, in fact frequently, you know, the actual results don't follow what the computer says it should follow. Now this was a computer modelling report and it was not tested against that video evidence at the time and neither was it tested against evidence on the ground, eye witness reports, it was purely a computer generated report. There was three visits to the site later by the hydrologist but when the report was done he hadn't even been there.
ALAN JONES: But the Commission found that Grantham was flooded by the natural overflow from Lockyer Creek. Now as you have written, and people have written to me, eye witness accounts supported by several hours of video footage and hundreds of photographs paint a picture completely at odds with the Commission's finding that Grantham was flooded by the natural overflow from Lockyer Creek.
NICK CATER: That's right. And I tell you what else the report says; it says that the flooding began at 2.45 and that the main flooding was between 3.00 and 3.30. That's what it says. Well I can tell you now, Alan, for an absolute cast iron fact, that the floodings happened after 4 o'clock. And this is because we have phone records, we have the recordings taken by the emergency services which have the times exactly to the second on them. So we know the time the flood happened. It happened after 4 o'clock; it wasn't between 3.00 and 3.30.
ALAN JONES: [Interrupts] So how does the Commission not know that?
NICK CATER: Can I tell you why that's important, Alan? That timing's important.
NICK CATER: Because in that half an hour or an hour discrepancy that they have, the water is building up behind the dam. It's accumulating; it's not coming through. And so when the dam does burst at around 3.45, 3.50, there's an enormous volume of water coming through. That is not covered by the hydrology report. It is not covered.
NICK CATER: [Talks over] That's why we need an inquiry immediately, Alan, to look at that report.
ALAN JONES: That's it. Well where are our journalists? You're a journalist. Where are our journalists? If you can find it out so can others. You have written: since the last significant flood in 1996, an obstacle had been placed in the time-worn path. A crudely constructed levee, three to five metres in height, now stretched for 380 metres, on the western boundary of Wagners quarry. As the deluge hit the bend at a velocity of some five metres per second the kink in the river acted as a pressure valve while the levy levee held the water back, creating a temporary reservoir on 100 hectares or more of farmland - an effect hydrologists describe as ponding. You said: the flow of the Lockyer Creek at Helidon Bridge was estimated at more than 240 million litres a minute, holding the water back at a quarry bend for 15 minutes would have created a 3.6 gigalitre reservoir - a gigalitre is a billion litres or 400 Olympic-sized swimming pools. And you said: millions of tonnes of water would have been pressing against the levee, something, somewhere had to give. And when you spoke to some of these people like Tom Friend and others, Tom Friend talked about his neighbour Jonny Sippel. And he said: Jonny Sippel was standing there at his place, he could see the water starting to come up over the bank - that's over the levee - and Tom Friend said: he just got out in time before it went whooshka, he was running. He said: it was just an horrific noise, whooshka, bang, crash, once it lets go it's gone straight ahead, it didn't take any corners and that's why people said they had a wall of water and it came bang, straight through.
NICK CATER: Yeah and this was water that was strong enough to take a metal gate - a steel gate - off its hinges. And it was strong enough to put a tree right through the middle of a house and finish up in the lounge room. It was strong enough to take Tom Friend's cow and take it 1.5 kilometres further down the path, across the railway line and finish up in somebody else's paddock. This is the sort of force that the water had. We've seen utes that were upended, overturned. I've spoken to a couple who were in that ute when it happened, when the wall of water hit them at the front the ute is upended and overturned. This is not accounted for in the hydrology report which was accepted by the Floods Commission. This needs to be investigated.
ALAN JONES: And as you said, a lot of people videoed all this; there are pictures. The public and Lance Richardson videoed it. And the water pouring into a double brick house, one woman said quote: the whole house seemed to pop out of the water and then it exploded, all the bricks just blew out a couple of metres in all directions. There was no actual explosion, it was just like the house blew out. None of those occupants survived.
NICK CATER: No they didn't. All three died. And, look, you know those photographs I've got them on my website, the before and after photos of the house. Can somebody please explain to me how an ordinary flood would cause a house to explode? You know? Can somebody please explain to me how an ordinary flood would cause another house to float across the paddock - like a cruise liner almost - and end up, you know, dumped half or three quarters of a kilometre away. You know nothing in the report would explain those extraordinary events which we know happened because we have the evidence. We have the video, the photographic evidence and, of course, hours and hours of eye witness evidence which I've recorded. All points to one thing; it points to a sudden catastrophic influx of water about two metres high which swept through a narrow part of the town - the most densely occupied area. It did not come up from the creek, that was a separate flood earlier. The catastrophic flood was the one that came from the creek. This needs to be investigated, Alan.
ALAN JONES: Marty Warburton, who'd seen 14 floods in 21 years, told me in writing. He said he raised all of these issues- or he went to the Flood Inquiry and he said tried to raise all of these issues, I'm sorry. His words: this never got a mention. He said: in trying to represent the community of Grantham all he got back was bullying and intimidation. He said, quote: for those who stood up and asked questions about the event or made comments during the recovery that authorities didn't agree with. He said: the local member when in Opposition, this Ian Rickuss - who yesterday tried to upbraid Alex Douglas - agreed with Marty Warburton that there were, quote: inconsistencies with statements and timelines and that there needed to be an inquiry, he said in opposition, into the issues and into Wagners dam influence. Marty Warburton said: several times Mr Rickuss said he supports our call and he'd push for a new inquiry but he could only do so much when he was in Opposition. Marty Warburton wrote to me: well, since the new election and now being the party in power, Mr Rickuss would not even meet or talk with us in relation to this matter. He even walks the other way in the street so as not to be confronted with the issue. And yesterday in the Parliament was attacking Alex Douglas for seeking a Royal Commission.
NICK CATER: Well I've spoken to Ian Rickuss myself and I'm very surprised that he's not taking this more seriously than he is. And what I'm prepared to do, if Ian Rickuss or anybody else involved in this would like it, I'm prepared to come back up to the Lockyer Valley and walk them over the course of the floods. To start where the break happened and then walk along the course and show them why the hydrology report cannot be correct. You know, it stares you in the face when you go up there, Alan. But I think, you know, your question of journalism, well journalists are hard-pressed these days. You know, it takes days of time to work these things through and unfortunately most journalists don't have that. Which is more to the pity. But I'm willing to help anybody who wants to get to the bottom of this as I do.
ALAN JONES: This is one of Australia's most distinguished journalists, if I might say so, Nick Cater. I'll just end with what you've said. You've said previously, quote: if a levee bank constructed without official sanction had not collapsed at the Grantham quarry, ten adults and two children who drowned that afternoon would have had a fighting chance. You say: anxiety remains about the possible role of a 380 metre long levee bank in redirecting the main force of the flood out of the bed of the Lockyer Creek, across paddocks and along the main street of the town. Of the 12 people who died, nine lived in the main street, Gatton-Helidon Road, about one kilometre from Lockyer Creek. My final question to you, where and when can these poor people gain relief?
NICK CATER: Well I think the momentum is building now, Alan. I think, you know you've played a large part in that, but others too have been involved in- in just, people have seen this injustice and are just saying, look - the Flood Inquiry - we know that the Commission got it wrong, you know, with regards to the dam further down that flooded Brisbane. We know that because they had to come back and reconvene and put it straight. I'm saying that the Commission got it wrong on this point too, badly wrong. And I think that inevitably, you know, the pressure will build and there will have to be an inquiry. I can't see that this will just rest without one. There must be an inquiry.
ALAN JONES: Thank you so much. Thank you for your time. And on behalf of those poor people who write to me and write to you and everybody else who feel just alone and unrepresented, thank you for being the voice of the voiceless.
NICK CATER: Thank you, Alan. Thank you for having me on.
ALAN JONES: Nick Cater. Nick Cater, there but for the grace of God, eh? What do you make of that and how do we possibly explain that this refuses to yield to any kind of investigation.
Fifth matter - broadcast on 24 February 2015 (at about 12:52 pm)
ALAN JONES: Annastacia Palaszczuk needs to be very careful because she's moving in an environment dominated by people who were controlled by Newman and Seeney. She's appointed this bloke Gollschewski, G-o-l-l-s-c-h-e-w-s-k-i as state disaster coordinator. Well certainly on the disaster front she's got it right. This relates to this bloke Dave Stewart who's her now police commissioner. He was the deputy commissioner when Bligh was Premier in 2011. The commissioner was a bloke called Bob Atkinson, a real Labor man. When the 2011 flood hit Bligh travelled everywhere with this bloke Rickuss the Member for the Lockyer Valley and this Dave Stewart the now police commissioner was with Anna Bligh on TV during her many appearances and Stewart did a lot of the talking. He was supposed to be a true
12A blue National Party copper, but he suddenly became a
Labor copper. When Newman got into government everyone said oh well, this is the end of Stewart, he'll be gone. No, he stayed on. Newman took over in March 2012, Atkinson the police commissioner the Labor bloke retired and Stewart becomes the police commissioner.
Now at the time this Gollschewski was the boss of Toowoomba police during the flood. He was later found by the flood inquiry to have been in a police car with another officer and watched John Tyson's wife in distress in the flood but they failed to get out of the police car and try and help. They apparently just backed out and drove away. All this was apparently caught on close circuit TV footage. Gollschewski was banished to a cop shop on the North Coast but Stewart, the now commissioner, brought Gollschewski back from no-man's land where he'd been banished and made him deputy commissioner for strategy, police and performance with direct responsibility can you believe it, for the Crime and Corruption Commission. Why was he rewarded? It doesn't make sense. Stewart was an LNP cop but he turned red for Anna Bligh then Newman came in, he was an LNP cop again.
So in July/August last year Alex Douglas met with Palaszczuk regrant them and gave support to Clive Palmer's federal parliamentary inquiry into Queensland. Palaszczuk reportedly told Dr Douglas she knew all about Grantham, knew it was a cover up but quoted; it didn't happen on my watch and she wanted to move on. When the Palmer inquiry was passed by the Senate in September last year Palaszczuk told the media yes she'd be happy to appear before it. By November last year she refused to appear. Why? What was going on? Now we hear that Wagner's people have been visiting Palaszczuk convincing her or trying to that everything about Grantham is a conspiracy. The whole Grantham thing and she needs to lie low and let it pass.
And I understand that Stewart the Police Commissioner is terrified that Grantham will be reopened as an inquiry. Annastacia Palaszczuk the new Premier needs to get a judicial inquiry into Grantham up and running immediately.
Sixth matter - broadcast on 26 February 2015 (at about 12:53 pm)
ALAN JONES: Look, I must send a cheerio call to Mr Wagner in Toowoomba. I'm
just wondering how he's getting on with the airport which was built breaking all the rules.
But of course his mate Campbell Newman said it was all legal. How's Grantham going? As the new Premier sorts out what's to be done. I know Mr Wagner's very, very worried. How's Mr Wagner getting on with his mate Mr Gardner? Everything was hunky-dory. How's the bank balance?
Wagner had his mates Antonio and co in town hall. Newman and Seeney and co in George Street. Qantas was only ever going to be a trial at Mr Wagner's airport. I suspect it's not doing too well.
Seventh matter - broadcast on 9 March 2015 (at about 7:40 am)
ALAN JONES: Now look, some of you may have forgotten, but I spoke often last year because I regarded it as a national issue about the little community at the bottom of the Toowoomba Range, Grantham. In 2011 in one day 13 people lost their lives, 10 officially dead, three never found. We had in Queensland a Royal Commission into the deaths -well, nationally we had a Royal commission into the deaths of four young men, two of them from Queensland, as a consequence of the Gillard home insulation program, notoriously named, Pink Batts.
Here are 13 people who have lost their lives. There has been no willingness by the Bligh Government and millions of letters that I wrote to the Newman Government to find out why. And you've heard me, I said it was a massive cover-up.
You might recall I spoke to Marty Warburton, one of the witnesses to all of this, and in the interview I had with him he cried. He said he saw a funnel of water crashing through his front door, picking everything up that was in the showroom and smashing it - he sold whitegoods - smashing it into the back wall, fridges, freezers, shelving, everything.
And he told me on this program, his words, within a minute the water went from a trickle in the street to waist deep inside my shop. He said it was like being towed behind a boat the water was flowing so strongly. He said the water, the debris, the cars, the shipping containers were coming towards me.
And he climbed onto the roof because the water was rising so quickly but at this stage it had already claimed a whole heap of people. And he then told me this, and I'm sorry about this, I know it's breakfast time, but he said I saw arms flapping around me like someone trying to swim.
I leant over the awning and grabbed the hand of the person - he's on the roof, Marty Warburton, and that's how high the water is - I grabbed the hand of the person to drag them up onto the awning. As I pulled on the arm the person rolled over and their whole face was missing. I saw right into their skull. In shock I let go. This still haunts me to this day.
There has been no attempt to provide answers to any of this. Marty Warburton pointed out how it happened, he said he'd seen 14 floods in 21 years. He said it wasn't a normal wall of water. He said the water had been diverted out of Lockyer Creek at the Wagners sand plant site, right where a dam wall had been constructed across the creek, and the dam wall in my view illegally constructed, because it was of waste in the quarry, the dam wall in the Wagner quarry collapsed.
Marty Warburton said to me what happened on that day was not a normal flood and the violence and the destruction that water caused was the result of a man-made construction in a designated water course, man-made. Wagner Quarry, Wagner of the Wellcamp Airport, please yourself, get your own way, do what you like, don't worry about anything.
There was a flood inquiry. Marty Warburton raised all this with the flood inquiry, quote: it never got a mention. He said to me the bullying and intimidation I witnessed and experienced towards those who stood up and asked questions about the event or made comments during the recovery that authorities didn't agree with, the bullying and the intimidation was disgusting.
He said to me on this program, many locals raised the issue regarding Wagner's dam and its effect at several community meetings after the event but the issue was always dismissed by authorities. I even raised it with several submissions to the flood inquiry; it never got a mention. I was never asked about it when I was on the stand giving evidence at the flood inquiry. This is Queensland, Grantham. A complete cover-up.
Now, I've spoken about this often on this program, including with the brilliant Australian journalist and author Nick Cater, who wrote about Grantham. Why am I telling this? Well, I've had some arguments with The Australian newspaper about all of this. And The Australian newspaper, having almost relentlessly taken a stand against what I was saying and what others were saying, decided to their great credit, Chris Mitchell and the team down there, to appoint their own independent hydraulic engineers to check the validity of what we were saying.
To the credit of The Australian newspaper, News Limited, they paid for these engineers. And there it was on the front page of The Australian newspaper at the weekend, quote: Victims of one of Australia's worst floods may have been exposed to greater hazard due to the collapse of a long section of embankment beside a quarry near the Queensland town of Grantham.
An investigation by The Weekend Australian, which commissioned the study by international experts DHI, backs up survivors who claimed the collapse of the embankment wall caused a sudden flood wave, making escape more difficult.
It goes on: The new findings by DHI shed fresh light on the floods that hit Grantham on January 10, 2011, causing the deaths of 12 people. Now, it said the new report contradicts the findings of the $15 million Royal Commission-style floods inquiry, led in Queensland by a Supreme Court judge. This was, as I said, a coverup from day one.
The question now is, what will the new Premier Palaszczuk do? I'll tell you what she should do. There needs to be a major inquiry into Grantham alone. There are plenty of people now prepared to talk. The story won't be pretty.
One mother who lived through the terrifying nightmare I met in Toowoomba. I went to see her to hear her story. Lisa Spierling, she'll speak, and she talks about a wave more than two metres high sweeping through the streets of Grantham. There were more than a dozen witnesses.
They all speak about water, tsunami-like, bursting into kitchens, demolishing a brick veneer home, ripping a baby from the arms of its mother. None of these accounts were included in the Queensland Flood Commission's report into the 2011 floods. Indeed, Catherine Holmes, a serving Supreme Court judge and a mate of Anna Bligh's, decided to meet her deadline, she wouldn't be able to hear evidence from those who experienced the floods.
And of course, the residents have said all along, and I've said all along, the water wasn't along the banks of the Lockyer Creek; the people there survived. The houses there were hardly affected. It was the people more than a kilometre from the creek along the Gatton Helidon Road that bore the brunt of the deadly force.
And those people have claimed all along the collapse of the Wagner Quarry's levee or embankment, three metres to five metres high, and 380 metres long - 380 metres long - had released a wall of water that engulfed Grantham. And now this independent study commissioned by The Weekend Australian newspaper from international hydraulic engineering firm DHI is suggesting the original findings were seriously flawed.
This is disgraceful stuff. Lisa Spierling cried when she read the findings. She said at the weekend, I've said it all along and I'll say it until the day I die, I'll tell you that was a huge wall of water and it hit us and it was coming from the west.
Now, Chris Mitchell, the editor of The Australian has to go to broke and we'll be with him. Fortunately News Limited could afford the money that this cost. The people in Grantham can't. Justice has to be done. Nothing must be spared to seek the truth, and I'm sure you'd like to hear from Marty Warburton in the light of all of this.
At the time I also spoke to Amanda Gearing who has argued this case all along, as did Nick Cater. There are only handful of us. It is a scandal, one of the many that resulted because the Newman Government had a chance to do something about this and they promised they would and they did nothing, because their mates got at them - don't do anything. That's one of the reasons why he was thrashed at the election a couple of weeks ago. We'll be returning to the subject.
Eighth matter - broadcast on 10 March 2015 (at about 6:48 am)
ALAN JONES: Just on this Grantham issue. I can't stress enough and I made the point yesterday that I spoke to Marty Warburton about this- I've spoken to him many times. He now is on the front page of The Australian. It's worth reading the story today. He was one of the witnesses to all of this at Grantham where 12 people died and no one has bothered to find out how. And he said to me that a funnel of water crashed through his front door, picked everything up that was in the showroom, smashed it into the back wall, fridges, freezers, shelving
and everything and he told me on this program, quote, within a
minute the water went from a trickle in the street to waist deep inside my shop. He said it was like being towed behind a boat. The water was flowing so strongly. He told me quote; the water, the debris, the cars, the shipping containers were coming towards me. And then he said this; I saw arms flapping around like someone trying to swim. I leant over the awning, he climbed up to get safety from the water and grabbed the hand of the person to drag them onto the awning. As I pulled on the arm the person rolled over and their whole face was missing. I saw right into their skull. In shock I let go. This still haunts me to this day.
There's been no attempt to provide any answers to any of this. Marty Warburton pointed out how it happened. He'd seen 14 floods in 21 years. He said it wasn't a normal wall of water. He said the water had been diverted out of Lockyer Creek at the Wagners sand plant quarry where a dam wall had been constructed across the creek and the dam wall in the Wagner quarry had collapsed through the force of water.
Marty Warburton said to me what happened on that day was not a normal flood and the violence and the destruction that water caused was the result of a man made construction in a designated water course. There was a flood inquiry. Marty Warburton raised all of this with the flood inquiry, quote; it never got a mention, he said to me. He said to me the bullying and intimidation I witnessed and experienced towards those who stood up and asked questions about the event or made comments during the recovery that authorities didn't agree with, the bullying and the intimidation was disgusting. He said many locals raised the issue regarding Wagner's dam and its effect at several community meetings after the event but the issue was always dismissed by authorities. I even raised it with several submissions to the flood inquiry and it never got a mention. I was never asked about it when I was on the stand giving evidence at the flood inquiry. This is Queensland, Grantham in a complete cover up. I've got news for all of them. No more.
Ninth matter - broadcast on 11 March 2015 (at about 8:10 am)
ALAN JONES: I'll be returning to this Grantham issue in order that justice be done to the families of the 12 people killed in that flood in 2011, and both the Bligh and the Newman Governments in Queensland couldn't care less about getting answers. It's awful stuff, and across Australia, since I spoke yesterday, people are writing to me and just saying how can this happen? Well the Victorian based law firm Maddens - M-A-D-D-E-N-S - has undertaken several site visits to Grantham, the Melbourne outfit, and spoken to residents and the firm says that in many instances its observations are at odds with the account of events of the Bligh and Newman Governments.
Maddens has made a formal demand on Wagner Brothers requesting an admission of liability or voluntary mediation. This is the airport mob, Wagner used to get his own way, no longer. No admission has been forthcoming from Wagners, the owners of the quarry. As soon as they knew they were in trouble though, they sold it. And that was the quarry - they were the quarry walls that burst and a veritable tsunami ensued. A new inquiry, as you've heard me say, and The Australian newspaper paid for this, and we thank them for that, by hydraulic engineers DHI, commissioned after massive agitation from people like me. The hydraulic engineers DHI found the collapse of the quarry wall, and there are question marks about the legitimacy of the quarry itself, and the legality of the whole show, but the collapse of the wall meant the flood had occurred more quickly, there was less time for evacuations, and the quarry owner was the Toowoomba based Wagner Brothers of Wellcamp Airport infamy.
You see, the Wagner Brothers are used to getting their own way, doing as they liked. Build an airport - no environmental impact statement, no health impact statement, no community impact statement, no water impact statement, nothing, just build it. No compensation for those living in hopeless proximity to the airport. Well of course the Wagners say the embankment was part of the natural landscape. That is a palpable untruth. Locals know the quarry was man-made. So Maddens, this Victorian based law firm have made a formal demand on the Wagner Brothers, requesting an admission of liability or voluntary mediation. No admission has been forthcoming, no voluntary mediation has taken place, so Maddens are considering launching legal action, and their lawyers will soon hold a meeting of affected property owners and flood victims.
And the lawyers, the Victorian team say our investigations point to the intervening influence of a man-made quarry wall which distorted the flood flow. This was not an act of god, this devastation was brought about by human intervention, it could have been avoided. Well inquiry or no inquiry in Queensland, let's hope the matter gets to the courts. And the Maddens, this Melbourne- Victorian based law firm, we have to thank them as well. There are people who can't find any closure.
Now by the way, on that matter, if you want to actually just have a look at what it's about you go to Facebook, and Grantham Flood Inquiry - just open the Facebook page and check the aerial photo - Grantham Flood Inquiry. Or you can Google Grantham, or Grantham Queensland, and just check the maps, it'll frighten the hell out of you.
Tenth matter - broadcast on 12 March 2015 (at about 7:52 am)
ALAN JONES: Forgive the pun, but the waters become more muddy everyday in relation to the deadly Grantham floods of 2011 in Queensland. After campaigning almost alone on this for years it now appears that the Toowoomba-based Wagners are in the eye of the storm. They thought they could get away with building an airport without seeking proper approvals because they had a gutless council, The Toowoomba Regional Council, and they had the Newman Government's ear so the community were walked all over. Then the quarry; they created a wall around the Grantham sand quarry. Typically Wagners; what they didn't need from the process they just parked alongside the quarry and built it up, and up, and up, and up, creating a massive wall. Wagners dishonestly have said it was part of the natural landscape; that's a lie, it was man made. The quarry then became a bathtub, and at a focal point in the 2011 floods the weight of the water collapsed the embankment wall, and a tsunami happened in seconds. Twelve people had no hope, they lost their lives.
Now this hypocrite Springborg the Opposition Leader who in Government did nothing, is now saying there must be effective closure. No one should believe anything Springborg ever says. Significantly Wagners couldn't wait to sell the quarry in the same year as the floods to Boral, Australia's largest building and construction materials supplier. They haven't operated the site since.
Grantham residents are considering a class action against Wagners. Maddens a Victorian law firm has visited the town. It's game on and there are plenty of people cheering from the sidelines at the prospect of justice to these still grieving townspeople, and that justice may at last be done. All eyes on Annastacia Palaszczuk. There has to be an inquiry into this cover-up. Independently of that it's hard to escape the conclusion that the lawyers on behalf of the residents have a massive case against Wagners. I think some people call it Karma, don't they?
Eleventh matter - broadcast on 17 March 2015 (at about 7:16 am)
ALAN JONES: It's seventeen after eight. I promised I would return to one of the most disgraceful stories in recent Australian history and that's not exaggerating the point, the deadly Grantham floods in Queensland of 2011.
I was for a time feeling I was campaigning on this almost alone. The Toowoomba based Wagners are now in the eye of the storm. They thought they could get away with building an airport without seeking proper approvals because they had a gutless council on side and the Newman Government on side and the community were walked over, then the quarry.
They created a wall around the Grantham sand quarry - typically Wagners - and what they didn't need from the process they just parked alongside the quarry creating a massive wall. Wagners said it was part of the natural landscape. That's a lie. It was manmade. The quarry became a bathtub and a focal point in the 2011 floods. The weight of the water collapsed the embankment. Twelve people had no hope. Wagners of course couldn't wait to sell the quarry in the same year as the floods, to Boral, Australia's largest building and construction materials supplier. Boral haven't operated the quarry since.
Grantham residents are considering a class action now against Wagners. Maddens, a Victorian law firm, has visited the town. It's game on and there are a lot of people cheering from the sidelines at the prospect of justice at long last being done to these grieving townspeople. All eyes on Annastacia Palaszczuk. There has to be an inquiry into this cover up. Independently of that it's hard to escape the conclusion that the lawyers on behalf of the residents have a case against Wagners. Some people would call it karma.
All of this a consequence of a brand new inquiry by the hydraulic engineers DHI commissioned to their credit by The Australian newspaper. After a massive agitation from a range of people - I was one of them - the hydraulic engineers DHI found the collapse of the quarry wall meant that the flood had occurred more quickly, there was less time for evacuations and the quarry owner, as I said, was the Toowoomba based Wagner brothers of Wellcamp Airport infamy.
The Wagner brothers of course are used to getting their own way and doing as they like. Build an airport with no environmental impact statement, no health impact statement, no community impact statement, no water impact statement, just build it and no compensation for those living in hopeless proximity to the airport.
Well the Wagners say the embankment was part of the set of the natural landscape. They're kidding. Locals know the quarry was manmade and the lawyers from Madden, the Victorian based law firm, said and I quote: our investigations point to the intervening influence of a manmade quarry which distorted the flood flow. This was not an act of God. This devastation was brought about by human intervention. It could have been avoided. If you go to Facebook, Grantham Flood Inquiry, open the Facebook page and check the aerial photos you'll faint. You can Google Grantham or Grantham Queensland and have a look at the maps.
One man who in his own quiet way joined the fight. It was the quite brilliant and internationally acclaimed journalist Nick Cater. I've spoken to him many times particularly in relation to his authorship of the outstanding book The Lucky Culture. Nick Cater has done phenomenal work on this. He's analysed. He's investigated from every which way. He went there. He's talked to everybody. He saw the helicopter photos. He's seen video evidence. He's read all the reports. He's seen hundreds of photographs. He's read the harrowing accounts given to the Coroner and he shares the view that I share; this must be the subject of a major inquiry. As he wrote recently more people died in forty minutes in Grantham than anywhere else in Queensland on that dreadful rain soaked summer. Yet the flood inquiry report by Judge Kate Holmes, six-hundred-and-thirty-five pages, devoted less than one-and-a-half pages to Grantham.
Nick Cater's on the line from London. Nick, good morning.
ALAN JONES: What are we on about? You've spoken to all of these people about the afternoon of January 10, 2011. It's almost - for you to even speak it's emotional, isn't it?
NICK CATER: Well yeah and I apologise in advance. I do get very emotional about this topic because it's very hard not to when you've spoken to the people whose lives have been wrecked by this, people who have lost loved ones, people whose homes have been destroyed and businesses have been destroyed by this flood.
It never seemed to make any sense at all to me, the line that was being put by the official flood commissions that this was simply an act of God, that nothing could be done to avoid this because when you go there and look at the evidence on the ground, you talk to people, everything points to one thing and that is this massive wall of water two to two-and-a-half metres high that just came sweeping through the town with no warning whatsoever.
That had to be started by something and all the evidence points as you just said to the wall at the quarry that collapsed. It was like a break in a dam. The water gushes out with huge velocity and huge force and that was in the end what caused the damage, what kills people.
It's very hard to escape the conclusion that if it was not for the quarry wall twelve people would not have lost their lives that day and yet it's taken so long as you know, Alan, more than four years now of battling to try and get close to the truth, to try and establish the truth. I believe that we are close now and that the DHR report backs us all the way on this. It's still a long way to go.
ALAN JONES: I mean there was an official flood inquiry, almost a Royal Commission and yet the Queensland Coroner's report, separate inquiry, described water bursting into kitchens, demolishing a brick veneer home, ripping a baby from the arms of its mother. None of these accounts were included in the Queensland Flood Commission's report into the floods and Commissioner Catherine Holmes, a serving Supreme Court judge, decided that to meet her deadline she wouldn't hear evidence from those who experienced the floods. It's unbelievable, isn't it?
NICK CATER: It is. I mean Catherine Holmes will dispute that. She has done in a letter to The Australian but the fact is they held two community meetings one in Grantham and one elsewhere which they wanted just to listen to the residents' concerns but they were very clear that this was not evidence they were hearing. They didn't invite evidence from them. They took their evidence from the experts and in this case most of it came from one quite illogical survey done by one company on a computer model without any [indistinct]...
ALAN JONES: [Interrupts] Yeah, that's the key point. Make that point again. Nick, Nick, just make this point again. This is the key to it all. The inquiry conclusions were written based on the evidence by an hydrologist Phillip Jordan but go on, based on a computer model not the evidence of the people that are there.
NICK CATER: Yeah, these computer models are highly sophisticated. The software's highly sophisticated. They can do marvellous things with them in trying to retrace what happened to the water but you always have to calibrate your findings against the evidence, the physical evidence that you see on the ground and against what eyewitnesses say they saw and heard. In this case he didn't do so because if he had have done so he would have realised that the computer had come out with a completely false result.
If I can say one thing on this, Alan, the key to this is that the computer modelling looked at the peak flood level and sort of instinctively you think well a peak flood level, that's the one to look at. But no, in this case what you want to look at is the onset of the flood. It's the point at which that wave hit the houses, hit the people, hit the cars. That's when lives were lost. That's when the damage was caused. Because the computer modelling did not look at the onset of the flood it got things completely wrong.
ALAN JONES: Yeah and Holmes, a Supreme Court judge, on the basis of Dr Jordan's evidence, that's the hydrologist basing his evidence on the modelling, none of the earthworks associated with the quarry caused or contributed to the flooding of Grantham on January 10, 2011 and basically the residents were wrong. The residents were there.
NICK CATER: Yeah, that's right. I think it was a very, let's say a very brave conclusion to come to based on one piece of computer modelling.
They had Phillip Jordan on the stand I think for less than ten minutes. No hard questions were asked. They just wanted him to fill out the details. No cross examining.
I mean to be kind to - to take the fairest interpretation of it, Catherine Holmes had a massive area to cover. She had floods right across Queensland. She had a limited amount of time to do it on but I still can't get it out of my head the fact that you just look at this and you say well twelve people died...
NICK CATER: ...in this one flood in the space of forty minutes in - it was in a radius...
NICK CATER: ...of five-hundred metres [indistinct]...
ALAN JONES: [Interrupts] And she delivered a six-hundred-and-fifty-three page report and one-and-a-half pages to the death of twelve people.
Now I interviewed Marty Warburton who told me he saw shipping containers, cars, a house and two bodies floating past his service station. He cried when the Holmes report was released and you wrote of Marty Warburton he still cries shaken, pale and quivering as he recalls the horrors of that dreadful afternoon.
He told you it's hard not to think that they've got it so wrong because they wanted to. We were all treated like stupid problems, you know, like hillbilly hicks. They said we've got to have experts tell us that. Now I mean I spoke to Marty Warburton and the stories he told me were just horrific but you spoke for example for Stacey and Matthew Keep. I mean tell that story.
NICK CATER: Yeah, well I haven't spoken to Stacey and Matthew...
NICK CATER: ...because both of them are just too, too shaken but Stacey was holding on to her baby. She was caught in this flood, swept out of her house, literally swept out of her kitchen by the force of this water, is trying to hold onto her child [indistinct]...
ALAN JONES: [Interrupts] Jessica who was one. Yep.
NICK CATER: ...I think a space of 10 minutes and eventually got too weak and the child just was swept from her arms.
Now can you imagine how that feels? Can you imagine what a mother must feel in this circumstances? These are terrible, terrible, tragic circumstances for people who did nothing to deserve this and I feel very strongly that their plight has been overlooked. Nobody's really taken them seriously or what they said seriously and people just think well it'll go away.
Well I tell you, Alan, it's not going to go away. It's not going to go away if you or I have anything to do with it [indistinct]...
Marty Warburton said to me it was like being towed behind a boat the water was flowing so strongly. He said the water, the debris, the cars, the shipping containers were coming towards me.
He said I saw arms flapping around like someone trying to swim. I leant over the awning and grabbed the head of the person to drag them up onto the awning. As I pulled on the arm the person rolled over and their whole face was missing. I saw right into their skull. In shock I let go. This still haunts me to this day.
He'd seen fourteen floods there in 21 years. He said it's about the damn wall collapsing. He said what happened that day was not a normal flood and the violence and the destruction that the water caused was the result of a manmade construction in a designated water course. But he said about the flood inquiry it never got a mention. He told me the bullying and intimidation I witnessed and experienced towards those who stood up and asked questions about the event or made comments during the recovery, that authorities didn't agree with the bullying and intimidation was disgusting. He raised all this and as he said none of it was an issue. What should happen?
NICK CATER: There needs to be a fresh inquiry and I'm very pleased that a number of people are now looking at this very seriously and I hope that the Premier takes this very seriously and realises that this has to be investigated. What we need, Alan, is a very specific inquiry. There needs to be an inquiry that looks at the events over perhaps ninety minutes in a very short space of that Lockyer Creek between Helidon and Grantham. You don't want to go any further than that you don't want to let the inquiry - there are lots more things to be investigated that should be but I think...
NICK CATER: ...let's get this one straight [indistinct] once and for all...
ALAN JONES: [Interrupts] Have you done a stack - you've done a stack of research - yeah.
NICK CATER: Then we can take this on and make sure that people get the proper compensation and respect that they deserve.
ALAN JONES: Yep and all the information that is available to you, to me and everybody would be available to such an inquiry.
Nick, we'll keep in touch. Good to talk to you and thank you for all you've done for those poor people who are seeking closure. I'm grateful for your time.
Twelfth matter - broadcast on 27 April 2015 (at about 7:49 am)
ALAN JONES: Now, look, I wanted to talk to you about a couple of things here because we've had devastating floods here in New South Wales.
ALAN JONES: The worst in 100 years, eight people died. Four of them though were from accidents.
In Grantham in your state in 2011, 12 people died when the weight of water, allegedly from a quarry owner owned by the Wagners, became a bathtub. And the weight of the water collapsed the embankment, 12 people had no hope. Will you be calling a long overdue inquiry so that these poor people who are the survivors of this massive tragedy at Grantham can have their say?
ANNASTACIA PALASZCZUK: Alan, I share your sentiments, it was an absolute tragedy and the lives lost there, you know, we still grieve for those families. And my government is giving very serious consideration at the time- at this time about pursuing an inquiry. I've asked for some independent legal advice. Because I believe that those families do need some closure.
ALAN JONES: Absolutely. I mean, more people died in 40 minutes in Grantham than anywhere else in Queensland that dreadful rain-soaked summer. It was a 635 page report into the floods - less than one and half pages dedicated to Grantham.
And Marty Warburton, whom you know, cried when the original report was released. He was a survivor. He still cries and he told me and I quote what happened on that day was not a normal flood, and the violence and the destruction that the water caused was the result of a man-made construction in a designated water course.
He said he raised all of this with the flood inquiry quote it never got a mention. He said to me quote the bullying and intimidation I witnessed and experienced towards those who stood up and asked questions about the event, or who made comments during the recovery that authorities didn't agree with, the bullying and the intimidation was disgusting.
It's- don't you believe that the Marty Warburtons of this world deserve to be heard?
ANNASTACIA PALASZCZUK: Yes, I do. I believe there does need to be closure for the people in Grantham. What they went through was horrific and we also know that New South Wales has gone through some terrible times just recently as well, and on behalf of Queensland, can I extend to the Premier down there our condolences. And, you know, we're always here to provide any support that we can.
But in relation to your question, I am getting that independent legal advice...
ANNASTACIA PALASZCZUK: ...and I'll be able to come back to you about that, Alan.
Fourteenth matter - broadcast on 6 May 2015 (at about 6:45 am and continuing at 6:49 am)
ALAN JONES: Well the Queensland Premier Annastacia Palaszczuk, in a gutsy performance, has announced a Commission of Inquiry into the flooding of the Lockyer Creek between Helidon and Grantham, infamously known as the Grantham Affair way back in January 2011. She announced this in the Parliament yesterday, the Premier said it would be chaired by the distinguished QC Walter Sofronoff, the former president of the Bar Association, an adjunct professor of law at the Queensland University and the Queensland Solicitor-General.
Ms Palaszczuk faced them down in the Parliament yesterday, the mob on the other side, the discredited Springborg and all his mates who would do nothing about the Grantham Floods in the time they were in government and I raise it many, many times, with Mr Newman and others. Why? Who are they covering up for? Under the Bligh Government, the flood commissioner Holmes, Catherine Holmes, a friend of Anna Bligh's released a 635 page report. One-and-a-half pages on the deaths of 12 people at Grantham. One-and-a-half pages. She decided- Catherine Holmes- that to meet her deadline, she wouldn't hear evidence from those who'd experienced the floods. She relied on modelling from a hydrologist and his work has since been found to be flawed.
The Weekend Australian, to its credit, commissioned- we led this charge on this program- but the Weekend Australian commissioned then an international hydraulic engineer and I must say it took the Weekend Australian, or the Australian newspaper a long time to get to the starting gate, having argued all along that things I was saying were incorrect but then they commissioned their own hydraulic engineering firm, DHI, who argued the original findings of this hydrologist Philip Jordan were seriously flawed. Twelve people lost their lives, their bodies have never been found. They have no closure.
Annastacia Palaszczuk already has them running for cover and I have no doubt for the shredding machines. I'll be naming the shredders, but not today. They can wait. Premier Palaszczuk gave five key terms of reference- one the impact of manmade and natural features of the landscape which could have altered or contributed to the flooding. Two whether the existence or breach of the Grantham quarry caused or contributed to the flooding and that's the Wagner quarry. Three whether the quarry had a material impact on the damage caused. Four whether the breadth of the quarry had implications for the evacuation of the town and five and this is the guts of it, how these matters were initially investigated and how eyewitness accounts were dealt with in the aftermath. I'll tell you how the eyewitness accounts were dealt with- they were ignored. One-and-a-half pages in the original report.
I've spoken to Marty Warburton before. He has lived there, knows the joint backwards. He's seen 14 floods in 21 years. He saw this, eyewitness. He's convinced it's about a dam wall collapsing. I've no doubt he'll be giving evidence. Happy to. Because no-one wanted to hear from him at the last flood inquiry. This may give closure, a long time on. Marty Warburton won't mind me saying, I'm sure, that he cried when the original report was released. And he still quivers as he recalls the horrors of that dreadful afternoon, January '11. he said it's hard not to think that they got it so wrong. We were all treated like stupid problems, like hill-billy hicks. Ms Palaszczuk, fresh on the job, has sought to bring some justice to these people.
ALAN JONES: Did you cry yesterday when you heard there was to be an inquiry?
MARTY WARBURTON: I was actually sitting in the doctor's surgery waiting for my psychologist appointment and heard it on the wireless at news time and I really felt like jumping up and down and I almost pinched myself, couldn't believe it was happening.
ALAN JONES: No. You've had- a lot of your people have had problems since, haven't you?
ALAN JONES: And you're still facing them. After what you've said and what you went through, you told me in relation to that flood inquiry by the Bligh Government and Catherine Holmes, you told me quote of Grantham I'll quote you- it never got a mention, the bullying and intimidation I experienced towards those who stood up and asked questions about the event or made comments during the recovery, that authorities didn't agree with, the bullying and the intimidation was disgusting. You said many locals raised the issue regarding Wagner's dam and its effect at several community meetings after the event but the issue was always dismissed by authorities. You said to me I even raised it with several submissions to the flood inquiry and it never got a mention. I was never asked about it when I was on the stand giving evidence at the flood inquiry, there's a big chance now Marty, will you be up to it and all your mates up there?
ALAN JONES: Good on you, good on you. The stories are frightening aren't they?
MARTY WARBURTON: They are and they're- everybody's got a story similar.
ALAN JONES: Mmm. You saw a funnel of water, it's easier for me to say it then for you, because it's still emotional for you, but you saw a funnel of water come through your showroom, you said it picked up everything, quote, smashing it into the back wall, fridges, freezers, everything. It was like being towed behind a boat, the water was flowing so strongly and then you said this to me- the water, the debris, the cars, the shipping containers were coming towards me. I saw arms flapping around like someone trying to swim, I leant over the awning and grabbed the hand of the person to drag him on to the awning. As I pulled on the arm, the person rolled over, and their whole face was missing. I saw right into their skull. In shock I let go. This still haunts me to this day. That's why you're at the doctor's yesterday.
ALAN JONES: It wasn't a normal flood was it, Marty?
ALAN JONES: And you're convinced that it was the result of a man-made construction in a designated water course and you'll be making those points.
ALAN JONES: There's plenty of evidence, isn't there, Marty, there are helicopter photos, there's video evidence, there are reports, there are hundreds of photographs, there are accounts that have been given to the coroner, they never counted for anything. Hopefully now they will, aye, my thoughts are with you. We'll keep in touch and I'll get up to see all you people so hang in there, you've got a lot of support, we're very much with you in spirit.
MARTY WARBURTON: Thank you so much for everything that you've done, Alan, and following this through and standing up for the people.
ALAN JONES: My pleasure. The least we could go. Righto Marty.
MARTY WARBURTON: [Indistinct] for your support too.
ALAN JONES: There we are, they're going to have to rally together now and find the strength to speak to Walter Sofronoff QC but for this time they will be heard.
Fifteenth matter - broadcast on 15 May 2015 (at about 7:43 am)
ALAN JONES: And just one interesting point. My listeners are full of information. If you're standing up, sit down.
As you know, there's an inquiry into the Grantham floods and it's progressing outstandingly. This man, Walter Sofronoff.
Last week was Beef Week at Rockhampton. Barnaby Joyce was there, Warren Truss, the Deputy Prime Minister. They were talking about the absence of a really fair dinkum agricultural policy.
I am told by someone who was there that there was discussion about a free trade deal with China. And I'm told that up stepped one Mr Wagner, walked up to Barnaby Joyce and Warren Truss - two federal ministers. And I'm told words to this effect were said: be careful, the judge they've appointed in this has got it in for us.
This is about Grantham. Walter Sofronoff. And then the conversation went something like this: we need to cover each other's backs in this, you look after us and we'll look after you.
Do you think they're not running scared about the Grantham inquiry? You bet they are. That was Beef Week in Rockhampton. You'd have think it [indistinct] more than Beef Week with some of that lot.
Sixteenth matter - broadcast on 22 May 2015 (at about 7:42 am)
ALAN JONES: Just in relation to the points that Rod McGeoch was making. Remember I told you a couple of weeks ago about the Beef Week at Rockhampton because this was in the light of the Palaszczuk Government calling an inquiry into Grantham and the cover up. More of that in just a moment.
Barnaby Joyce was there, the Deputy Prime Minister Warren Truss was there. They were talking about the chance, the absence of a fair dinkum agricultural policy in Australia. There was talk about a free trade deal with China- I've told you this before, but just by way of background. And I'm told that up-stepped John Wagner, walked up to Barnaby Joyce and Warren Truss, Wagner of the quarry at Grantham, Wagner of the airport, stepped up to Barnaby Joyce and Warren Truss. I'm told that one of them said to Wagner; be careful, the judge they've appointed- this is Mr Sofronoff in this has got it in for us. This is at Grantham. Then the conversation went like; we need to cover each others backs in this. You look after us, we'll look after you. Running scared about the Grantham inquiry. That was Beef Week at Rockhampton.
Well, Premier Palaszczuk is now aware of the battle she has on her hands re the Grantham inquiry and the determination of some to torpedo it before it's begun.
One of the terms of references of the inquiry- Section 3, is that the inquiry's to look into the actions of the police in relation to Grantham, therefore surely they can't have a thing to do with the inquiry. But the police have already contravened the terms and conditions of the inquiry. The Commissioner Sofronoff must know that these conditions are being breached unless Queensland has become a police state. There cannot be a Grantham inquiry and a police involvement in securing submissions to it. It's obvious that the Police Commissioner Stewart and the Toowoomba Police like McDonald didn't read Section 3e. Yes, the inquiry's about investigating you as well.
They must have felt under pressure when the inquiry was called but they made a serious mistake and the public are rightly concerned and writing to me about the police involvement in a likely new cover up. All arms of the media need to be alerted to this. The police need to understand that they are amongst those being investigated. That's one of the terms of reference. No use slipping into your old fashioned Grantham commission mode on the basis that well it worked last time, the flood inquiry didn't come anywhere near us and it's not going to work this time.
Incidentally there's a Grantham story on 60 Minutes this Sunday night on Channel 9. This is a big national story. But the stories I'm getting about police manoeuvring to avoid investigation, one I'm told has been brought in to allegedly look after the inquiry- and we know who's responsible for that, has a strange background. A drug cop and a flood inquiry and the alarm bells are ringing. Nice try Commissioner Stewart but get out of your bubble. He is the Police Commissioner in Queensland. You're not going to pull this inquiry off the same way as you did the last one. As I said Premier Palaszczuk has a massive fight on her hands now to see that justice is done and she deserves total public support.
Seventeenth matter - broadcast on 25 May 2015 (at about 7:40 am)
Alan Jones: Full marks to 60 Minutes last night and in particular Michael Usher who had obviously done some homework on the Grantham story and they took it national on television. Horrific. You saw the terrifying pictures. Water, floods like you've never seen. Houses under water and a mother who lost her baby never to be found. That all began remember on this program, and no-one wanted to believe what we were saying. We started the verbal proof that this was a massive cover up and the Bligh Government was involved and subsequently the Newman Government. Anna Bligh must be made to appear at this inquiry, she has to be called. She has to be made to answer why she allowed herself to be manipulated by police and others to a cover up. Who for? Wagner and co?
In June 2011 less than six months after Grantham, a farmer's protest was held at a mining expo at Toowoomba Showgrounds. I told you about this. There were a hundred farmers, mostly elderly and extremely nervous people protesting about the Darling Downs being turned into an industrial wasteland. It was their first ever protest. Protesting against coal seam gas and the destruction of the beautiful Darling Downs.
When they arrived they discovered that Anna Bligh the Premier had sent up twenty five special squad police, to, quote, protect delegates at the mining expo. They were massive. They had guns and Tasers, plenty of aftershave, chewing gum, biceps, blue veins sticking out of them. And later that afternoon two brave local ladies, both elderly, had bought tickets to the expo and positioned themselves on a corner handing out homemade calico bags of coal dust to delegates with a cheery smile saying welcome to our beautiful Darling Downs.
In no time at all organisers called in the special squad to remove them. They immediately chicken-winged the women and forcibly dragged them out. Both women were crying and begging for mercy. One of the women stared down their assailant and asked why do you need to hurt me so much, can't you see I'm old, I wasn't doing anything wrong. The young man suddenly softened and leaned down and whispered to her, I'm really sorry but they told us we had to show maximum force against the activists and extremists here today.
This was the same political climate that saw Grantham covered up by the Bligh Government and her mates using the might of the police and the Newman Government in spite of promises did nothing about it. And that very same special squad that was brought in to Grantham by midnight the night of the disaster, they locked the town down and did exactly what they were told for the next two weeks. Or make it the next four years.
Bligh had already committed the first crime when she signed off on an incomplete environmental impact statement for British Gas and Santos- remember Simone Marsh, give them a bankable outcome. From that point on they had to do whatever was necessary to protect the coal seam gas industry. The police are all over this and they should not be interviewing anyone in relation to Grantham.
One of the terms of reference is that the police themselves from the commissioner down are subject to investigation. After 60 Minutes last night there'd be plenty of people up there with diarrhoea and vomiting. They know the truth is closing in on them because many people know the truth.
Annastacia Palaszczuk said on 60 Minutes all evidence must be preserved. So any attempt to destroy the quarry wall will be a criminal offence. I spoke to one person yesterday who's made a submission. They've done homework about mining, about the Toowoomba Council, about Wagner's, about the dirty deals and about the police. You can put Grantham in the blender and swirl it around and around and the conclusion is the same, Anna Bligh and the police covered up the Grantham disaster. Why? Was this to protect Wagner and others? They'd already committed the crime much earlier with the Santos and British Gas Environmental Impact Statement. The great El Dorado that was that Darling Downs was enticing them. Billions to be made. And the police used to fix everything. You might remember? It was the police who arrested Drew Hutton in Queensland Gas cars. The police were sponsored by the coal seam gas industry. They did what they liked. Well Grantham is the gift that's been given to the people. The one mistake they all made and quite frankly Sofronoff, now the Commissioner, has to line these people up.
The whole business about Grantham began on this program and some brave people on the Darling Downs. I must give some credit to Chris Mitchell, the editor of The Australian, but it has took him a long time to get to the starting line, but nonetheless they stuck the money up to fund an independent hydrologists report which proved that the flood inquiry was a cover up and based on false premises.
It took a long time to get some of these people to the starting gate but now the truth is closing in on a lot of people. All the appropriate information is being given to Mr Sofronoff and well may some people be very worried indeed because a crime is a crime.
And I'm not going to get too many brownie points for saying this but in the light of the Channel 9 piece on Grantham I'm going to give a rap to Heather Brown and her husband Dr David Pascoe. Nobody has taken the massive hit to their lives that these two ordinary people have taken in pursuing the truth. They've been burgled - you've heard me talk to Heather Brown on this program - three times they were burgled, terrorised, vilified, helicopters flying over their home, driven out of their home for thirteen months, living at three addresses because security was warning them the mob were coming back to get them.
Who ran all this operation? Who was responsible for this terrorising of these two people? This was never about mining, this was about how much Heather Pascoe knew about Grantham. She was a former journalist, now a dusty farmer. She had the best contacts and the best mates in journalism and she's written it all down and Mr Sofronoff has got the lot.
These people may well have had their day. They're now about to face an analysis of the truth. No wonder Mayor Antonio in Toowoomba is calling meetings and looking pasty faced, well may this be the case. They've had their own way for too long and I want to give a rap to the Speaker of the Queensland Parliament Peter Wellington, a farmer. He made it clear to the Palaszczuk government that a condition of his support was an inquiry into Grantham and he stuck to his guns. A good man who believed in good people. He judged those who campaigned for an inquiry as honest and truthful people and he wrote it into his condition of giving Labor power. There was no way Wellington would support the cover up merchants in the Liberal National Party.
Queensland will eventually owe this bloke Wellington a lot. There are good people in politics and Mr Wellington is one of them.
Eighteenth matter - broadcast on 26 May 2015 (at about 7:42 am)
ALAN JONES: They're running for cover around Toowoomba and Grantham at 100 miles an hour over this Grantham inquiry. And after the 60 Minutes show and the things we've been saying for years and well they may be. There's one thing though that they don't lack and that's gall - they've got as much hide as Jessie the elephant.
So now Toowoomba Mayor Antonio is going to head to Canberra to see the Federal MP Macfarlane who's presided over the destruction of the Darling Downs, to save the Borneo Barracks Defence Base at Cabarlah from being closed down.
And now they're making statements about how vital the defence base is to the local economy. Now, Cabarlah is at the other end of the triangle. If you image Toowoomba here, say half past six, where the six is. And if you imagine Oakey over there at ten, well Cabarlah's over there at three.
Now, all of this from Antonio along with Macfarlane and Newman, who fast-tracked the Wagner airport, at any cost, knowing full well that stealing 40 per cent of the air space from the Army would begin the process of eventually shutting down the Army base at Oakey, which is there for defence purposes. Not a word back then, and Antonio and Macfarlane and Wagner are in full support of Acland stage 3, which will come from the north towards Oakey, and eventually exterminate the chopper base at Oakey Airport, which has trained helicopter pilots from here and Asia in the national defence interest.
And now they're saying, oh, we've got to go to Canberra and talk to Macfarlane, our mate, to stop the destruction of the Borneo Barracks, they're important for defence. After we've actually destroyed the Oakey defence base itself for our own selfish, greedy purposes.
These people, they're hypocrites of the year. Antonio, Macfarlane, Wagner - airports, army bases, Grantham. These are the Darling Downs leaders now on a little comedy routine to convince the poor old Darling Downs punter that they really care. Yeah, they care alright - they care about the demise of the Darling Downs at the hands of their mates.
I've warned about these people now for years. The tragedy is by the time we wake up, it may well be too late. They only know one thing and that is self-interest. No, sorry, two things: self-interest and bullying.
Nineteenth matter - broadcast on 2 June 2015 (at about 8:50 pm)
ALAN JONES: Yes just on Queensland; that unknown lady Annastacia Palaszczuk is making a real fist of this. I see today she sacked the racing boards. I think we've all been outraged as to what we've learned about the greyhound industry up there and in other parts of Australia.
But the big thing that she's done to date is the whole question of Grantham; the inquiry into the floods, and the feeling by many that the quarry dam wall broke. Well quite extraordinarily I had a call this week from someone who was on the Lockyer Council back in 1989 - I've got to be careful in terms of what I say - but he was telling me that if his memory served him correctly Wagner's were never meant to have any overburden left on the site, let alone use it as a wall. In other words what you didn't want had to be carted away. And this is of course the wall that broke, and the tsunami that followed. And my caller said that either of two things had occurred; that Wagners deliberately ignored that ruling that they were never meant to leave any overburden on the site, or they had it specially altered or changed with some of their mates in Government.
So this is really going to move, this thing. Sofronoff QC certainly I think's got a handle on all of this, and Palaszczuk intends to get some answers, and there are many people legitimately concerned.
Twentieth matter - broadcast on 4 June 2015 (at about 8:51 am)
ALAN JONES: Yes, it's nine minutes to nine. I made this point on television the other night but with this Grantham inquiry in Queensland being all the talk in that part of the world.
I was talking to someone who was on the Lockyer Council back in 1989. And he told me that if memory served him correctly, Wagners were never meant to have any over-burden left on the site - let alone used as a wall. This, of course, is the wall that the locals argued broke and the tsunami followed and people were dead.
And my informant told me that either of two things have occurred: Wagners deliberately ignored the ruling that they were never meant to leave any over-burden on the site, or some of the mates changed the rules. Either way, it starts to explain why people are running for cover. And why in fact there may have been a cover up.
Twenty-first matter - broadcast on 16 June 2015 (at about 8:16 am)
ALAN JONES: Of course at the same time we've got the Grantham Inquiry. Can you remember when I mentioned back in May it was Beef Week? You may have forgotten this. Beef Week in Rockhampton, Barnaby Joyce, Warren Truss, and others were there. They were talking about the absence of a really fair dinkum agricultural policy in Australia. There was talk about the free trade deal with China. I'm told reliably, and I mentioned this to you, that up stepped this John Wagner of Wagner infamy in Toowoomba, walked up to Barnaby Joyce and Warren Truss because the Grantham Inquiry had just been announced - two Federal Ministers - and I'm told that one of them said to Wagner be careful, the judge that they've appointed in this has got it in for us. This is Grantham, reference to Mr Sofronoff. And the conversation said something like this; we need to cover each other's backs, you look after us and we'll look after you. I said at the time they were running scared. Beef Week at Rockhampton, that was the conversation.
So how many sweetheart deals are this mob worried about that will be unearthed by the Grantham Inquiry? Mr Sofronoff will be examining everything. Might it extend to the Wagner Airport, and how they were given the airspace over Oakey for nothing - national air space? Warren Truss the National Party Leader was president of the Canegrowers for ten years. Ian Macfarlane the Energy Minister was president of the Grain Growers in Queensland. I'm telling you they're all in this, and there's Federal money. And who is picking over the Federal money to look after themselves?
There was a conference in Canberra yesterday, big money being talked, big gifts, big money to hand out. Who's going to get it? As was said at Beef Week we need to cover each other's backs, you look after us and we'll look after you. Well I for one will be watching closely where this Federal Government money goes. Does Mr Wagner have his hand out again? Mr Truss yesterday in Canberra was talking about planned beef roads and dams; who's going to build them? Where's the money going to go? Is that what was meant by we need to cover each other's backs, you look after us and we'll look after you? Well I've got news for all of them; whether in Canberra or not these sweetheart deals with Wagner or anybody else will be closely examined in the light of the Grantham Inquiry and they will be revealed. And if the boys are in on the deals then the deals and the boys will be made public.
Twenty-second matter - broadcast on 22 June 2015 (at about 7:55 am)
ALAN JONES: Just on the Grantham inquiry, I won't go into detail of the unspeakable cover ups that have occurred in relation to the tragedies of 2011, I notice you've said though when you were Acting Premier prior to the Premier returning that the victims of Grantham will get their own legal teams. Can I get an assurance from you that the victims will be able to choose their own legal teams and the Government will pay. Is that what you meant by that?
JACKIE TRAD: What we will be doing is making sure that the people of Grantham have access to legal representation and...
JACKIE TRAD: Well I'm not quite sure about that. I'm talking to the Premier about that because as you know the Premier has established this inquiry and as you know she's back on board today, so we'll be talking those issues through but we absolutely understand how critical this new inquiry is to the people of Grantham and that's why the Premier moved swiftly to make sure that there was an opportunity for them to revisit the incidences and to look at fresh evidence, look at fresh engineering evidence.
ALAN JONES: All withheld evidence. I mean you've started with Golder Associates undertaking this geotechnical work on the Wagner quarry. Interesting that geotechnical investigation has the full cooperation of Boral to whom Wagner sold the quarry in a hurry after the flood, so it will be interesting. When do you get that geotechnical work back?
JACKIE TRAD: Look Alan I'm unsure but I'm certainly happy to get that information...
JACKIE TRAD: ...and give it to you and your listeners.
ALAN JONES: I'm sure you understand these poor people have limited resources. It would be good if they were able to choose their legal team knowing that that would be funded- within reason of course.
ALAN JONES: Alright, we'll keep in touch. Good to talk and we'll talk again.
ALAN JONES: Thank you so much for your time. That's the Deputy Premier of Queensland Jackie Trad. I should have- I meant to ask- there's an extraordinary story up there where Campbell Newman- and you've heard my views on all of this, built a massive monument to himself which is called the Tower of Power while the state was broke. There's nothing now that the new government can do about it. The marble for the floor- can you believe this, was imported from Nepal at a massive cost. They clearly thought they were going to be there forever, a long, long time and they could get away with anything. And so the marble. It's just unbelievable isn't it. A state that's broke. Anyway we'll keep you posted on those. Winton. And so to those of you who are writing to me and saying to me can we contribute. I'll get back to Jackie Trad as to how that might happen because Australians want to contribute to these poor people. All they've got now is tourism and now that's been burnt to the ground.
Twenty-third matter - broadcast on 20 July 2015 (at about 6:46 am)
ALAN JONES: It's fourteen minutes to seven o'clock. All hell will break loose in Queensland today, make no mistake about that. The public hearings of the commission of inquiry into what's now infamously called the Grantham Floods will begin under Walter Sofronoff QC.
Now, you know the story. 2011, terrible stuff. Evidence will be heard in relation to the Toowoomba-based company, Wagners, the darlings of the Coalition in Queensland and in Canberra. The mob who built the airport in Toowoomba, remember, without seeking proper approvals. And then were gifted Oakey airspace. Gifted. A national asset handed to a private company for nothing.
Well, they had the rights to mine the quarry at Grantham. But one of the conditions was pretty simple: quote condition four; over-burden is not permitted to be stockpiled so as to form a levee bank. It's there in writing in front of me. Well, the argument will be that this over-burden, this rubbish, not wanted, was stockpiled, creating a massive wall alongside the quarry.
Wagners have said it was part of the natural landscape. In the flood, the quarry became a bathtub. The weight of water collapsed the embankment and 12 people had no hope. Of course, Wagners couldn't wait to sell the quarry in the same years the floods to Boral. Boral haven't operated the quarry since.
Annastacia Palaszczuk has called for an inquiry, which begins today to end the cover up. How did these people die? This will be horrible stuff.
Lisa Spierling, her children, and countless neighbours, lived this terrifying nightmare. Lisa Spierling was in her kitchen baking a carrot cake. Suddenly, she was herding seven children and some elderly neighbours up a steep, slippery rail embankment about two metres high, watching everything that she'd work for being destroyed in seconds.
She saw the railway line disappear, she said it was like a beach. It just had this big sort of roll on it. It was brown, with a lot of crap in it. Logs and sticks and trees. She called it an inland tsunami. Cars and shipping containers floating in the water. A wooden house broke from its anchors and began to tilt on its side. She heard people yelling and screaming and waving for help. She couldn't hear over the noise. She said it was deafening. You could hear the cars crashing, and getting sucked under the bridge. My son said he felt the bridge shaking, he said he saw people in some of the cars. She said the rolling waves were more than two metres high and they swept through the streets of Grantham.
None of this was included in the Queensland Flood Commission's report into the floods. Serving Supreme Court judge, Catherine Holmes, the Flood Commissioner decided to meet her deadline she'd not hear evidence from those who'd experienced the floods. She'd rely on modelling from a hydrologist.
Well, they'll hear the evidence today. The same Lisa Spierling, who narrowly escaped these floods which caused the death of 12 people and destroyed the town of Grantham. She'll be one of the first witnesses called.
Steve Jones is the local Mayor of the Lockyer Valley Council - he's done a hell of a job trying to rehabilitate, restore, and basically instil a new life into many of these people. He's congratulated Premier Palaszczuk and has called this inquiry to provide closure to the people of Grantham.
The public hearings are being held in the nearby town of Gatton. This'll be bombshell stuff. The people are speaking. I'm advised that a councillor, a friend of a prominent policeman, inspected this same quarry on 31 December, only weeks before because a neighbour was afraid of how high the wall was. And nothing was done about it.
ALAN JONES: Steve Jones the mayor is on the line. Mayor, good morning.
STEVE JONES: Oh look I think you know, people have honestly had four years now of very difficult times and obviously the next few weeks will be also difficult but it's about bringing this to closure and giving them at least some means of moving on.
ALAN JONES: There's no use denying that residents believe that the quarry and its associated wall were responsible for making the flood worse so that will be front and centre won't it, at this inquiry?
STEVE JONES: Look I think yeah there's obviously five criteria but the important aspect from the council, the committee's point of view, is that if there are any physical features which need to be in any way altered to make this place safe in the future, they need to be addressed.
ALAN JONES: But of course you will be looking at, the inquiry will be looking at the physical features of the time which lead to the flood.
STEVE JONES: Yeah I think you know people, there's lots of questions have been asked, and obviously we can't give answers to those questions, and people need to get answers so that they can sort of move on and have an understanding of what happened and you know they can be confident about the future.
ALAN JONES: And of course, if people have been responsible, then they must be held responsible and hopefully the inquiry will do that. I've spoken many times to Marty Warburton, will he be giving evidence?
STEVE JONES: Look, I believe so. You know, obviously there's a number of-
ALAN JONES: I mean he told me on this program he saw shipping containers, cars, a house and two bodies floating past his service station. He cried when the original report was released, 653 pages, because there was less than a page and a half on the plight of the people of Grantham. And he still cries, he said, we were treated like stupid problems, like hill-billy hicks. People have come forward, haven't they? They were frightened.
STEVE JONES: Yeah look, Alan, people for the last four years have been asking questions, they've been posing all sorts of issues, and I guess there needs to be a proper means of answering those questions.
STEVE JONES: The rumours need to be put to rest and facts need to be brought to the forefront. That's what is necessary.
ALAN JONES: Marty Warburton told me that it was a funnel of water, quote, like being towed behind a boat, the water, the debris, the cars, the shipping containers were coming towards me. I saw arms flapping around like someone trying to swim. I leant over the awning and grabbed the hand of the person to drag them up onto the awning. As I pulled on the arm, the person rolled over and their whole face was missing. I saw right into their skull. In shock I let go. This still haunts me to this day. He'd seen 14 floods in 21 years. It's a big day for a lot of these people Steve.
STEVE JONES: It is Alan, and you know, as I said, there'll be a fair bit of pain today and over the next few weeks but it's absolutely necessary because it's very hard for anyone to understand just how difficult it was during that period.
ALAN JONES: And how it was ignored. I mean even today, the Courier Mail in Brisbane which persistently refused to even chronicle any of this, reports the opening of the inquiry in a tiny story on page 13.
STEVE JONES: Yeah you know, it's very sad really to think that people are still suffering the way they are, and we need to do everything we can to get them back on the road.
ALAN JONES: Good on you, good to talk to you and thank you for your time
Twenty-fourth matter - broadcast on 21 July 2015 (at about 7:14 am and continuing at 7:18 am)
ALAN JONES: It's fourteen and a half minutes after seven on Tuesday 21 July. Well, a very traumatic day for south-east Queensland yesterday. Grantham, just below the range, east of Toowoomba, devastated by deadly flood waters in 2011. Yesterday, we saw the dramatic opening of the public hearings of the commission of inquiry, headed by the former Queensland Solicitor-General and eminent lawyer, Walter Sofronoff QC.
He will hear submissions and provide written recommendations to the Queensland Premier by 31 August. This is the Grantham floods commission of inquiry. And it began in Gatton yesterday. The first five days of hearings started yesterday, giving residents and eye-witnesses the chance to speak for the first time, about the day a wall of water surged through their town, taking the lives of 12 people. To this point, unexplained. I call it a cover up.
The flood tore homes from their foundations without warning. Locals believes the excess rainfall over the previous week had formed a man-made embankment in a quarry on a creek bed downstream from the town of Helidon, before bursting - the wall bursting - and surging through Grantham.
The key terms of reference at the inquiry centre on the impact made by the man-made and natural features of the landscape. How the Grantham quarry, the infamous Wagner quarry, may have contributed to the flooding. Whether it had a material impact on the damage. And its implication for the evacuation of the town.
During a preliminary hearing last month, Mr Sofronoff QC said the inquiry would focus on the 12 victims. People have written to me, following yesterday, of course, because we were very strong and vocal in having this inquiry set up.
One correspondence said from the time I walked into the room, Lisa Spierling hugging me and crying in front of all the QCs, Marty Warburton doing the same - everyone crying - as if Walt Disney was making a movie, as if happy endings were still possible. Everyone in smart suits, all feeling honoured and special.
Lisa Spierling was the first witness. This is the lady, as I told you yesterday; whose children and countless neighbours lived this terrifying nightmare. She was in her kitchen baking a carrot cake. Suddenly, she was herding seven children and some elderly neighbours up a steep, slippery railway embankment, about two metres high, watching everything that she'd worked for destroyed in seconds.
She saw the railway line disappearing, she said it was like a beach. She said it just had this big sort of roll on it, it was brown with a lot of crap in it. Logs and sticks and trees. She called it an inland tsunami. She talked about cars and shipping containers floating in the water.
She previously said she saw a wooden house break from its anchors and begin to tilt on its side. She heard people yelling and screaming and waving for help. She said previous to the inquiry she couldn't hear over the noise. She said it was deafening. You could hear the cars crashing and getting sucked under the bridge. My son said he felt the bridge shaking and he said he saw people in some of the cars. She's previously said rolling waves, more than two metres high, swept through the streets of Grantham.
None of this mattered to the previous flood inquiry. None of it was heard, none of it was entertained. None of it included in the Flood Commission's report into the floods.
A serving Supreme Court judge, Catherine Holmes, the Flood Commission decided that to meet her deadline she would not hear evidence from those who experienced the floods. She relied on modelling from a hydrologist.
Well, Lisa Spierling narrowly escaped these floods which caused the deaths of 12 people and destroyed the town of Grantham. She was the first witness called yesterday.
ALAN JONES: Nick Cater is a distinguished journalist of international experience. He has been there to Grantham. Indeed he scarified the area for months, the area savaged by the flood. He's analysed, he's investigated what is now known as the Grantham disaster from every which, which way.
He has talked to everybody. He's seen helicopter photos, he's seen video evidence, he's read reports, he's seen hundreds of photographs, he's read the harrowing accounts given to the coroner and he was instrumental, along with others, to seek this major inquiry.
He wrote earlier this year, quote: more people died in 40 minutes in Grantham than anywhere else in Queensland that dreadful rain-soaked summer, yet the flood inquiry report by Judge Catherine Holmes, 653 pages, devoted less than one-and-a-half pages to the Grantham ordeal.
Nick Cater was there yesterday. He's on the line. Nick, good morning. Nick are you there? Hello. Hello. Nick. Has the line fallen out? He was there yesterday.
I mean basically the lawyer - we'll get him back - Saul Holt, representing some of the victims yesterday, said the conclusions of the previous Queensland Floods Commission of Inquiry that wrapped up in 2012 didn't reflect his clients' experiences, plural clients, during the flood.
Central to that he said was the finding that the sand quarry owned by the businessman Denis Wagner and his family, whom I'm sure yesterday, sat at the inquiry holding their breath that the flood commission of inquiry in 2012 found that the quarry didn't contribute to the disaster. The lawyer Saul Holt said his clients did not accept that finding, given the quarry wall size and location.
Nick Cater is on the line. I'm sorry Nick, you must have dropped out there. Thank you [indistinct]...
NICK CATER: [Interrupts] Yeah I could hear you, Alan.
ALAN JONES: Right. How harrowing was all this yesterday?
NICK CATER: Look it was - I found it quite remarkable. It was, you know, two years ago I was in that same building in the coffee shop listening to Lisa Spierling's story for the first time, that horrifying account of how she had to climb up on the railway line with her kids and then, you know, run back on the railway tracks to escape this approaching water and I was just shocked then by the fact that this hadn't been heard by the original Commission.
There we were yesterday in a, in you know, basically a courtroom that had been assembled there in the community centre with lawyers, QCs, witnesses and of course the Commissioner himself, Mr Sofronoff, hearing that self-same evidence, just as Lisa told it to me two years ago and yet this time, you know, thank goodness, it's being listened to by the people who should take notice.
ALAN JONES: And given that there were a lot of people in that room yesterday at Gatton who would never have heard this story because it was told to you and she told me also the same story, what was the general reaction when they heard her story of what happened?
NICK CATER: Well there was silence, people were listening intently to this. Because it's a very moving personal story and all the words that we had earlier from the Commission mean nothing compared to when you hear people tell what they saw and heard on the day. And none of what people say they saw and heard on the day matches what the Commission, the original Commission, said happened.
You know, it's - the QC representing the residents, Saul Holt QC said that these people had been patron... felt patronised and ignored, you know, and that's I think what's the overwhelming feeling here. People are so frustrated, obviously devastated by the - what happened on the day and the deaths of 12 people close to them, but more than that. You know, their hurt and anger is compounded by the fact that they've just been ignored and people just haven't believed them.
ALAN JONES: Sure, it's not believable, it isn't believable, you're quite right, that that could happen. You mentioned Saul Holt who's representing some of the victims.
ALAN JONES: And he said yesterday, he told the Commission, I quote his words and I'd just like you to comment on this, he told Commissioner Sofronoff quote: the suggestion that the quarry wall, the Wagner quarry, didn't have a substantial impact on the behaviour of the flood waters is something that at least on its face may not pass the sanity test.
NICK CATER: Well I, I think everybody was nodding at that point except perhaps the lawyers for the Wagners, but I mean the point about that is what - the other thing we're seeing here very importantly Alan this time, which I think wasn't so much in evidence in the last Commission, is photograph and videos.
And of course nowadays, you know, just about anything happens anywhere in the world, somebody's got their camera phone out and they're taking pictures. And so the video evidence and photographic evidence that was presented yesterday was compelling. You know, you can see the way the water is reacting, you can see the way this wave is sweeping through in one part, just knocking, you know, boring a hole in the wall at the bottom of a pub and you know that this is not accounted for in the original inquiry.
So I don't know. I'm not going to sort of - I'm not going to sort of preclude the judgment of Mr Sofronoff but I think there's a lot of evidence there, more than enough evidence on day one, to show that the original inquiry got it wrong and that the quarry wall was responsible.
ALAN JONES: Nick, it must be very difficult, really terrible for people to have to revisit all of this by listening to stories that they are familiar with but which have never before been publicly told.
NICK CATER: Yeah it is very difficult and this has split the town, you know, because many people I think quite understandably have said look, we've got to build our lives again, we've got to get on, we've got to move on, let's put all this behind us.
And there's still some people who witnessed traumatic events on the day who are too - who just will not come and talk about them, you know, partly because they're too upsetting, but also because they have this [theme]. Look, it's understandable, let's move on, let's rebuild the town again.
ALAN JONES: Where are [indistinct] sorry, where are the relatives of the 12 who are dead?
NICK CATER: Well that's an interesting thing, Alan. I mean I don't know everybody in the hearing room but I didn't identify many of those there yesterday. Who - there was Danny McGuire was there. Of course he lost his partner and children in the flood, but - and he - you know, very brave man, taking it very stoically.
But you know, some of the most harrowing stories, you know, the Keeps, you know, Stacey Keep, you know, they weren't there and I doubt we'll see them because they are people that are still - you know, basically their lives have been ripped apart by this tragedy and it would be, you know, if you lost a one year old child in the circumstances she did.
NICK CATER: But you know, let's hope that when this comes to its end, and hopefully I think they're moving pretty quickly, five week hearing, you know, there will be some closure for these people.
ALAN JONES: And of course Sofronoff, a very scholarly man, has done a lot of preliminary work. When he heard, any reaction from him in any way to the stories that he was telling from people like Lisa?
NICK CATER: Look, he's the perfect man for this. He sits there, he conducts his hearings very, very stoically, very - hardly showing emotion in fact, you know, and a very, very professional way. But I think the significant thing, Alan, is the fact that the hearing is here in the Gatton Community Centre, what, you know, five kilometres from the site of the flood.
And this Commissioner I think has made this decision deliberately because he wants the people who were there at the time to hear - to give evidence. He's brought the inquiry to Grantham or as close to Grantham as he can so that people can tell their stories and that I think is very significant and I think that his findings will take into account, for the first time I think, you know, those compelling eyewitness accounts.
ALAN JONES: Just finally, Saul Holt, coming back to him, the QC for some of the victims said - and you've partly alluded to this - said survivors have felt - this yesterday his words - ignored, confused and patronised by the earlier inquiry.
ALAN JONES: And that the finding of the earlier inquiry by Catherine Holmes, that the quarry had no effect on the floods according to Mr Holt QC caused anger, loss and powerlessness.
NICK CATER: Yeah. Yeah, yeah. I mean that's right, Alan. It's a powerlessness. You know, it's quite shocking you know, when you come up here as I did, a year or 18 months ago. You sit and talk to grown men. You know, really blokes who just earn their living the hard way, you know with their hands.
And they sit down there and they're in tears before you. You know, you think crumbs, you know, there's something...
NICK CATER: There's something deep inside the souls of people that have experienced this flood and experienced these losses that's made so much worse by the fact that nobody believes them about what happened.
ALAN JONES: Yeah. I remember the first time I mentioned this on radio, I had a call off air from someone I didn't know. As it turns out, this person whom I won't name, was a witness to what happened. And this is a man of over 40 years of age, somewhere around about 50, and he started to speak to me and started to cry on the phone.
And he said, I just want to thank you for what you said. I didn't ever believe that anyone would listen or believe us.
NICK CATER: Yeah, that's right and look, it affects all of us. Obviously I wasn't - you know, me in a different way, because I wasn't there at the time. But look, I mean I get emotional about this. You know [indistinct]...
NICK CATER: I'm talking to you about - usually I consider myself a very sort of sober and calm person but when I - sometimes you - this story, there's something about this story that gets you and it's more than the tragedy of the day. It's a story of ordinary people, ordinary people going about their - making their living in a decent and honest way.
Suddenly their lives are ripped apart and then they get no justice from the authorities. Nobody believes them. Nobody will listen to them and instead we have this great circus of QCs and everything in the last Commission that come out with a finding that was plainly ridiculous.
So you know, for me this is not just a story about the flood. It's about ordinary people outside the metropolitan centres being heard and that justice being applied fairly across the country.
ALAN JONES: Well done, Nick. Good to talk to you and thank you for your time.
Twenty-fifth matter - broadcast on 22 July 2015 (at about 8:10 am and continuing at 8:19 am)
ALAN JONES: I'll tell you what, if Denis Wagner was covering his face on the first day of the Grantham inquiry then yesterday was much more pain for the Wagners. Rumour has it of course that they have problems with their airport, unable to make a quid. Well now the evidence after two days is starting to mount in this Grantham inquiry.
The telling story of yesterday was the evidence of Jon Sippel. He said he heard and saw the quarry wall burst and he saw the water crash into his house. He gave eyewitness evidence of where the water came from. While day one were formalities and then of course Lisa Spieling giving evidence a knock out a mother of five, an army reservist, a businesswoman, she was extraordinary. She gave a precise account of running out of her home with a bunch of kids and watching a massive wave chase her like a train.
But yesterday the first witness was Mrs Arndt. She and her husband jumped in the car after her stepdaughter rang and told her to get out of the house, that a massive amount of water was coming. The only trouble is they assumed it was Sandy Creek which floods through the town to the east of her home so they headed west. The next thing they saw was a massive wall of water heading towards them. It hit their car, flipped it around, they couldn't get out of the car. She screamed at her husband do something. They couldn't open the doors. They hit the electric windows and thankfully they worked and they swam into a surging wall of water, grabbed a tree, sat on a branch fifteen feet above the ground until they were rescued by a helicopter. And the only amusing part of the day, the Wagners' barrister said now let me repeat to you what your stepdaughter said when she rang. Get out quickly, the water is coming. There was a long pause. Mrs Arndt said no, that was not what she said. The barrister smelt blood. Well what did she say then? Mrs Arndt, well she was a bit hysterical and she actually said get the 'F' out of there. The court collapsed in laughter. When she finished her evidence everyone applauded her.
But the next witness changed the entire case. Jon Sippel. He has never spoken out before because his police statement about what he saw mysteriously disappeared after the last flood. His house backed right onto the creek opposite the quarry. He was a quietly spoken young man yesterday, neat of manner and dress. He's an electrician. His family were there to support him, three rows of them. What he had to say changed the course of the entire case in a matter of hours. He described the wall that was built around the quarry. He said, three times higher than my truck. He described talking to a local councillor on 31 December 2010 about his fears about how high the wall was built. His friend assured him there was nothing to worry about. Then he described watching the water build up behind the quarry wall to the extent that it was swirling, he said, in a circular direction. Then he said it crept up onto a high northern bank of the creek where his house was. He panicked, grabbed his wife and kids and dogs and raced up the road to a higher safe spot. Then he started to rescue his neighbours and get them out and then suddenly he said he heard it, a long fifteen second crashing and banging, a massive noise that went on and on and on as the water burst through the banks of the quarry and smashed their houses to bits. He said he could see one of his sheds exploding and bobbing out of the water and twenty minutes later, he said, he returned to his smashed up house with his wife and kids and all the water was gone.
I'm told it was a clear, precise, brutal statement of evidence of what happened. It blew the inquiry away. They adjourned for lunch with everyone saying Wagners are finished. There was simply nowhere to go after that level of evidence. Their QC tried to ask Jon Sippel some questions. It went nowhere. The inquiry applauded him as he left the stand.
These people like Jon Sippel and Lisa Spieling were clearly heroes on the day of those floods. Their only concern and actions were for others like their family and their neighbours but we were never allowed to hear their story. Instead they were silenced and shut down and turned into sad and bitter victims.
Yesterday and on Monday a couple of genuine heroes walked back into that room and in many ways the story is about the two Australia's we're living under these days, the bureaucrats and the politicians who cover up - we're seeing this at Liverpool Plains, Grantham - and then the ordinary tough, brave, courageous Australians who fight for truth and freedom and the right to tell their stories.
One listener texted me to say that Walter Sofronoff is a magnificent commissioner, compassionate, caring, protective of his little broken flock of victims. He was an inspired choice.
Another one wrote to me to say we were simply honoured to be there today.
As for the Wagners, well, I've nothing more to say other than what I've been saying for a long time.
ALAN JONES: I should say one other thing; it has been pointed out to me that the Wagners' new hydrology study, which they are presenting as evidence to suggest that it wasn't them, that new study admits that the wall - the quarry wall - was a man-made structure. And that deliberately contradicts everything that the Wagners have claimed since this happened; they've always said it was a natural feature of the landscape. The new hydrology report says it was a man-made structure. It gets worse by the hour for that lot I can tell you.
Twenty-sixth matter - broadcast on 23 July 2015 (at about 8:58 am)
ALAN JONES: Just in relation to the Liverpool Plains, you will recall about Beef Week in Rockhampton in May. Everything I've told you. Beef Week.
And a very funny thing happened then, at Rockhampton. Because Warren Truss and co were there. They were talking about agricultural policy and free trade deal. And it upset John Wagner, talking to the group, which involved Warren Truss, the Federal Ministers. And one of them said to Wagner: be careful, the judge they've appointed to this has got it in for us. This is the Grantham inquiry.
Then the conversation went like this: we need to cover each other's backs in this, you look after us and we'll look after you. Beef Week in Rockhampton. Is that the reason why the Federal Government is silent on the Liverpool Plains? Who is looking after whom? Is
this why there was a cover up at Grantham? You look after us, we look after you.
These are pretty sickening developments. We'll keep at it, with your support, and we're grateful. Thank you for that, thanks for your company - see you tomorrow. Bye.
Twenty-seventh matter - broadcast on 24 July 2015 (at about 7:14 am and continuing at 7:21 am)
Alan Jones: Look, at week's end, this Commission of Inquiry into what is infamously known as the Grantham floods has already offered extraordinary revelations, you just can't believe this can happen in Australia.
Everyone knows the story, 2011, evidence, as you heard, that the Toowoomba-based company Wagners, the darlings of the Coalition in Queensland and Canberra. The mob who bought the airport at Toowoomba without seeking approvals and then were gifted Oakey airspace, gifted a national asset, handed over to a private company. They thought they could please themselves, that the world ran according to their dictates.
Well, they had the rights to mine the quarry at Grantham. One of the conditions was pretty simple, condition 4, overburden is not permitted to be stockpiled so as to form a levy levee bank. There it is, as I said earlier this week, in front of me in writing. The Wagners of course have said this is rubbish, that that was stockpiled, creating a massive wall alongside the quarry, they said, oh, it was part of the natural landscape.
In the flood, the quarry became a bathtub, the weight of the water collapsed the embankment and 12 people had no hope. At least that's what's being alleged and being tested by this inquiry. The Wagners couldn't wait to sell the quarry, the same year as the floods, to Boral. Boral haven't operated the quarry since.
Annastacia Palaszczuk called for an inquiry, it began this week. The people of Grantham are deeply in her debt. It was a courageous decision in the face of many, on both sides of politics, who wanted the cover-up to continue. If it hadn't been for Palaszczuk, this evidence would never have been heard. None of the stuff would have been laid out as it has been, witness after witness, telling how they were washed away by floodwaters, how their lives were on the line.
Helen Besley told the Commission of Inquiry on Wednesday how she and her husband were washed away in their car by floodwaters. They became separated, and how the force of water broke her artificial hip. Took off to try to escape, she said, the water went straight over the top of us, this was a tsunami. I can only presume, she said, it came from the west, it just suddenly came over the top of the windscreens, it was just one great wave. And she and her husband were still in the car when water pushed it through a set of palm trees, across a barbed wire fence, and up the front of some sheds. This is a car. She said, at that point, the water level was with the windows and starting to come up through the floor of the car. Can you imagine anything more terrifying? But no one, until the Palaszczuk Inquiry, wanted to know about this.
She said, we had electric windows and we count it as a blessing from the Lord, because normally when the motor is off - which Graham had turned it off - we put our hands on the switches and somehow they went down. She said, Graham went out his side window and she went out hers, both were clinging to the car for what she said was 20 to 25 minutes. She said it was like, you take a gasp of air and wait for the next wave to go over, take another gasp of air and wait for the next wave to go over. She said the force of water bashing her into the car broke her artificial hip. She said the pair were pulled apart from sheer exhaustion. She said, he got taken down the creek, I could see him bobbing. Because I'm a Christian, I was just praying. I was praying that he'd be saved, that he wouldn't drown, I was screaming for help, Lord help us. Then all of a sudden he was back with me, I don't understand how, but he was there with me, 20 to 25 feet away. She said they both climbed up onto the wreckage of their sheds where they watched their house torn apart.
Francis King, a father, broke down on Wednesday while recounting how he and his son were swept into the torrent of floodwaters that tore through Grantham. He and his son had gone to move vehicles when a wave of water hit them. He said, John, the son, who was inside his car, escaped through a window and climbed onto the roof. Mr King said his car held his arm while he was in the water, to stop him being pulled underneath the car by debris and he cried at Wednesday's hearing as he described the struggle to stay afloat. He said, the force of water took off my clothes, the force of water took of my clothes. I was at the point of telling my son he had to let my arm go, but I was able to get out of it. I owe my son my life, it was a life and death struggle. I was at the point of telling my son he had to let my arm go, but this raft of rubbish broke up and I was able to get out of it, I don't know how. He recalled the torrent of water came from the south-west, which is a different direction from the nearby creek, the direction of the quarry.
Yesterday we heard Ian Pinkerton, a local resident speaking of his anger and torment as he remembered the fatal floods that hit the Lockyer Valley town west of Brisbane, 12 people killed in 2011. He said he was forced to climb onto the roof of their home moments after the Lockyer Creek broke its banks. He said, we couldn't believe it, it was coming actually from three directions. He said, we didn't get up on the roof because of the height of the water, we got up on the roof because it came in and smashed glass at our front door, and that's when we decided it's time to go. Mr Pinkerton said he and his family stayed on the roof until half past 11 at night.
Mr Pinkerton said he'd worked for the Wagners, the former owners of the quarry, for about a month in 2006. He told the Inquiry that when he worked for the company, an embankment wall on the western side of the quarry was not there. He said it was not until years later, in 2010, that he noticed the wall whilst driving past and it was very high.
Now, of course, these people have been bullied and intimidated for years, and that was the component of the cover-up. He was bullied yesterday, Mr Pinkerton, by the lawyer representing the Wagners, Peter Davis QC. Davis cross-examined Mr Pinkerton and Mr Pinkerton replied, what I feel you're trying to say here is that I am a disgruntled ex-employee, and I'm not. I'm a Grantham resident. We're pissed off at what happened in January 2011. We know the area, we know the creek, we know what happens, and here we are again having to re-live what happened that day again, and it rips our hearts out. Davis, the QC for Wagners said, oh, so the upshot of that is, you're not a disgruntled employee, you're a disgruntled resident. To which Mr Pinkerton responded, yes, wouldn't you be?
Ken Arndt gave evidence challenging claims the wall at Wagners quarry was a natural feature. He said, I'd been fishing there as far back as 30 years and I know it was once a paddock. There was no wall there. That's it. Mr Pinkerton said, here we are again having to re-live that day, and it rips our hearts out just being here. This could have all been stopped if Denis Wagner had just said, yes, I f-d up.
ALAN JONES: One person I've spoken to before is Marty Warburton, he'll give evidence today. His is a terrible story. While I'm mindful that I'm asking him to revisit it, unfortunately this is the only way in which these people will see any kind of closure.
Marty has seen 14 floods in 21 years. He saw everything that happened that day. He's convinced it's about a dam wall collapsing. But, you see, no one wanted to hear from him at the last flood inquiry. He cried when the original report was released and he still quivers as he recalls the horrors of that dreadful afternoon.
He said to me it's hard not to think that they got it so wrong. We were all treated like stupid problems. Like hillbilly hicks. It's a cover-up, you see. Protecting their mates.
I mentioned earlier this week that Jon Sippel was one of those hicks. He heard and saw the dam wall breaking as well and gave evidence to that effect. He told the inquiry he heard and saw the quarry wall break - he saw it, what happened. That's what he said. He gave eyewitness evidence.
The evidence earlier this week changed the entire case. He'd never spoken out before. He's one of the people that Marty said over and over again no one wanted to hear.
Jon Sippel's statement about what he saw mysteriously disappeared after the last flood. But his house backed right onto the creek, opposite the quarry. A quietly spoken young man. What he said this week changed the course of the entire case.
Well, these are extraordinary people. They were never allowed to tell their story. They were silenced. They were shut down. They were turned into sad and bitter victims but are submerging now the story that authorities wanted to silence - bureaucrats, politicians, media people wanted to shut up. These people weren't believed.
Now we've heard this week ordinary, tough, brave, courageous Australians who fought for truth and freedom and the right, simple right, to tell their stories. One of them is Marty and he'll tell his story today, he's on the line.
MARTY WARBURTON: Yes, it's going to be an emotional day.
ALAN JONES: How did you feel when you heard there was going to be at long last a fair dinkum commission of inquiry?
MARTY WARBURTON: I had to pinch myself at first. I was really amazed that Annastacia Palaszczuk had called it so quickly once getting into power.
ALAN JONES: That was a condition of her staying in power. Peter Wellington, this wonderful man who is the independent, said you've got my support if you call an inquiry into Grantham.
You told me that in relation to that flood inquiry by the Bligh Government and Ms Catherine Holmes, you told me that Grantham had never got a mention. You said the bullying and the intimidation I experienced towards those who stood up and asked questions about the event or made comments during the recovery that authorities didn't agree with the bullying and the intimidation was disgusting.
ALAN JONES: You copped all that. You said many locals raised the issue regarding Wagner's dam and its effect at several community meetings after the event but the issue was always dismissed by authorities. You said I even raised it with several submissions to the flood inquiry, it never got a mention. I was never asked about it when I was on the stand giving evidence at the flood inquiry.
MARTY WARBURTON: Yes. Honestly the last four days of hearing it has given you the opportunity for the people to get up and being asked more credible questions and more relevant questions.
ALAN JONES: The bullying is still going on, of course, with the cross-examination isn't it?
MARTY WARBURTON: Yes. Yes, which is to be expected.
ALAN JONES: You told me at the time, when everyone else said that you'd got it all wrong and there was no story, you told me you saw a funnel of water come through your showroom and pick up everything. You said - your words - smashing it into the back wall, fridges, freezers, everything. It was like being towed behind a boat the water was flowing so strongly.
Then you said this, the water, the debris, the cars, the shipping containers were coming towards me. I saw arms flapping around like someone trying to swim. I leant over the awning and grabbed the hand of the person to drag them up onto the awning. As I pulled on the arm the person rolled over and their whole face was missing. I saw right into their skull. In shock I let go and this still haunts me.
ALAN JONES: You were convinced, of course, that this was the result of the manmade construction.
ALAN JONES: Are you confident now that everyone who wants to speak will speak?
MARTY WARBURTON: I am very confident, yes, and have the utmost confidence in the Commissioner too.
ALAN JONES: For people who are listening here on radio it should be said that it is not just the evidence, it's the helicopter photos, there is video evidence, there are reports, hundreds of photographs, harrowing accounts, all landing on the lap of Mr Sofronoff, QC.
ALAN JONES: How do you feel now after you and I have spoken any number of times about this over many years and suddenly here is the opportunity you sought?
ALAN JONES: A big relief. I remember - I'll tell my listeners, when I first spoke to Marty - and I didn't know him - when I first spoke to him I was on the phone and Marty was almost in tears. He said to me - because he had heard what I had said, that something must be done. You said to me you were just so happy that someone at last was prepared to believe you.
ALAN JONES: Marty, what about yesterday? Just hang on there because I've got Ken Arndt on the line...
ALAN JONES: ... who gave just simple evidence yesterday. Ken, good morning. Ken, are you there?
ALAN JONES: Yeah, Ken's 76. You simply said yesterday you had no doubt the quarry's wall held back floodwaters. How did you know? Because you used to fish there on the bend. You said it was simply a paddock, hey?
KEN ARNDT: Well what happened there, there used to be a big plant there where that bloke used to grow lucerne.
KEN ARNDT: When they called on that bend it's a hairpin corner, it's very narrow, the creek narrows there, you know.
KEN ARNDT: Well, when the creek comes high and it can't take the flow around that corner it used to break over that flat and go down through there, you know.
ALAN JONES: Yeah. It had nowhere to go. There's the wall - it went into the quarry. You lost, you said, half a million dollars worth of uninsured farm equipment.
ALAN JONES: All you could salvage was a few photographs. You said the terror of the flood haunts you even now. It plays on my mind all the time. I start breaking down, hey.
ALAN JONES: Well, thankful to Palaszczuk she's called the inquiry. But you know - you know that that wasn't a manmade wall because you used to fish there.
KEN ARNDT: It was - no it wasn't. No, it was - they just dumped all overburden on there.
ALAN JONES: That's it. They just dumped it and built the wall.
KEN ARNDT: They did. Well, like I said on the - when they were interviewing me, I said well this bloke had a lucerne farm there and I said he used to mow the lucerne and that. I said how in the hell could he mow lucerne if there was a mountain in the middle of the paddock and I said he must have had a helicopter.
ALAN JONES: Yeah, I mean witnessed - I mean this is the point. He'd been fishing there as far back as 30 years. He says I know it was once a paddock. There was no wall there.
ALAN JONES: Game, set and match. Boys, game, set and match. Ken, thank you for speaking up. How does it feel to have been given the chance to have your say?
KEN ARNDT: Yeah - well I had - I fronted up yesterday.
ALAN JONES: I know you fronted up, you're wonderful [laughs], and so did your wife front up earlier. He's 76 years of age.
ALAN JONES: We've got to go Ken. You're in our thoughts. We've got to go. All the best.
ALAN JONES: Okay, bye-bye. Marty, well there, you know Ken.
ALAN JONES: They're wonderful people, aren't they? Just simple people speaking up. He said, I know, I've been fishing there as far back as 30 years. It was once a paddock, there was no wall. You know that too.
MARTY WARBURTON: Thank you Alan and I've got to say thank you for your support over the last three or four years. Honestly, without your support and many others, Alex Douglas, Peter Wellington, Dr Pascoe...
ALAN JONES: Yeah, Heather Brown, we'll get there. We'll get there Marty. You have a big, stiff whisky and be strong today. All the best.
Twenty-eighth matter - broadcast on 28 July 2015 (at about 6:45 am)
ALAN JONES: Look, I've mentioned several times, Walter Sofronoff QC suspended the inquiry yesterday into the Grantham deaths due to quite unforeseeable circumstances. Today, Patrick Gallagher told me [indistinct] John Gillespie will be on, and the word is the evidence will be red hot. John Gillespie is the man who walked his dog past the quarry every morning and saw them building the wall higher and higher. He wrote a letter of complaint to the Lockyer Shire around about new year's eve, the flood hit ten days later and nearly killed him. He was on the roof. Miraculously, or unsurprisingly, the letter that he wrote disappeared from the CEO's office.
I understand the CEO is a good friend of Councillor Jim McDonald. Patrick Gallagher is the man whose house was flooded, and he brought in surveyors to shoot some lines, and the highest recorded water levels back to the quarry wall reported that they found the levee wall was about 4.7 metres higher than the original flood inquiry claimed. Tommy Friend lived right across the Lockyer Creek from the quarry, he saw them build it and he then saw them pull it down straight after the flood. He saw the material leaving on the back of trucks, it was all full of big chunks of heavy rocks and cement. So much for the natural features of the landscape rubbish that Wagner goes on about.
Word is out the inquiry's going to call Denis Wagner up as early as Wednesday. There is a lot of unrest after Danny McGuire's evidence of being sent to a motel. Now Danny McGuire is a local volunteer fire fighter, he was in his truck as the floods in Grantham headed his way, and the 53-year-old decided to gather his wife and three children from the house and flee in the fire truck. Moments later, the water's force tossed his vehicle aside like a toy. Mr McGuire and his son Zac survived, his wife Llync-Chiann, the son Gary, 12, and the daughter Jocelyn, 5, perished. He had already been working on the flood relief effort in his role as a volunteer fire fighter. He told the inquiry last week we were all in the truck, we got halfway out of the drive when it hit, it went over the truck and spun it around. I threw Zac out onto a tree, and then got sucked out. I never saw the truck again after that. The family and the truck were gone.
Mr McGuire put his family in the car because he didn't want them to drown in their home. He said it was the last scenario he wanted his family to be caught in. He said we were definitely not staying in the house; the only option in my mind was to round everyone up, get in the truck and go. It was the safest option. He lost his wife and two children. Well, he was then kept in a motel for six weeks with no phone and no outside contact, and he couldn't read or write. His evidence has got them rattled. This Police Commissioner in Queensland, Stewart, has got to be put in the dock. The public need to know what Stewart's involvement was.
This is being described, the treatment of Danny McGuire, as a serious human rights issue. The heat is on, I have to tell you, very much on, and at the end of the day there are going to be significant questions asked of these people. Now Danny McGuire is but one, but why were proceedings halted yesterday? It may well be that some people are going to be brought forward to prevent the bullying of potential witnesses. Last week, Ian Pinkerton, a former employee of Wagner's, gave his evidence, where he said quote: why don't you just admit you F-ed up, Denis. It's reported that Wagner was then seen allegedly pulling up in his car outside Pinkerton's house in Grantham later than afternoon, after the inquiry had adjourned, and getting out of his car and standing and staring at Pinkerton's home. It's believed that Pinkerton was sitting inside. After a few minutes of this bizarre performance, Wagner drove off. That sort of stuff, that tactic has been used on others.
Now, it is extraordinary, some of the stories that are being told here, but at the end of the day they're not going to escape the scrutiny that must apply. Look, just one thing - and I'll keep you posted on that Grantham thing - it's just appalling and the cover-up is being uncovered. And there will be no escape for some. None.
Twenty-ninth matter - broadcast on 29 July 2015 (at about 6:44 am)
ALAN JONES: The general consensus from those at the hearing - and I'm speaking to these people regularly, the Grantham hearing yesterday - is that a quietly spoken farmer became the executioner. Tony McIntosh known as Tony Mac was decimating. The one photo he showed of the water with the quarry wall in the background was the killer, what they call in sport I suppose the money shot. He became the executioner.
Yesterday it was quite clear from all the aerial footage, the pictures, and the verbal descriptions that the quarry wall held back a massive amount of water. When the wall collapsed the water went straight across the full quarry and cannoned north east, hit Tommy Friend's
house, Johnny Sippel's house, and then cannoned down to
Grantham. It was very clear that the quarry wall was higher than the northern creek banks. Of course Grantham would still have flooded - it was a flood - but not with the force, the rapidity, and the ferocity with which the water hit the town.
It's down to one question that now hangs over the whole thing; did Wagners build the wall by not taking the rubbish away? Clearly the eye witnesses who've testified believe that they did. Wagners will now say it was there when they bought the quarry. Someone's not telling the truth. Denis Wagner's in the dock today, this is straight out of MGM.
Remember the evidence of Ian Pinkerton last week who argued that he worked for Wagners, and there was no wall, then he progressively saw the wall being built. And in his evidence he said why don't you just admit you effed up Denis? Well Denis Wagner will be there today. I wonder will he be asked whether he was the person who then after Mr Pinkerton's evidence pulled up outside Mr Pinkerton's house in Grantham after the inquiry adjourned. Did the same Wagner get out of his car and stand and stare at the Pinkerton house? This is the Wagner tactic.
It's game on today. But one report of yesterday talked about the... Patrick John Gallagher gave evidence, based on a series of photographs he said he took during and after flooding near the Grantham quarry in 1996. In that incident the quarry flooded, but not Mr Gallagher's house. In the 2011 disaster he had 1.2 metres of water in his house. Mr Gallagher first noticed the embankment wall he said increasing in size on the western side of the quarry in 2002. He said it was six metres high by 2005. He said it was massive. He said I was shocked at the size of the wall, my statement said six metres. He said it had to be man-made but he said he didn't notice the wall actually being built, but it was significant, and by 2005 he said it was massive. I was shocked by the size of the wall.
Well Mr Wagner gets his chance today. The evidence is mounting against him.
Thirtieth matter - broadcast on 31 July 2015 (at about 6:43 am)
ALAN JONES: To sew up what happened at the Grantham inquiry yesterday, you could basically say that Denis Wagner, the boss of the Wagner company, by the end of the day was admitting everything he'd previously denied. Wagner, confronted with devastating photographs, was forced to admit that yes, they did dump overburden along the side of the creek, contrary to the conditions which allow them to mine the quarry. Condition Four says, quote, overburden is not permitted to be stockpiled so as to form a levee bank. Well now, oh yes they did dump overburden. On Wednesday he said they didn't know; the staff might have done it, he didn't know. On Wednesday he told the Commission Inquiry they wouldn't have dumped overburden under the power lines. Yesterday he had to admit that they did. At the end of the day, Wagners were at their very, very worst. The Toowoomba Chronicle running a headline about how the quarry owner Wagner claimed that the flood inquiry had told false stories. Does Mr Wagner understand that these personal stories about what happened to Grantham people, during the flood, were given under oath? Now Wagner is saying they didn't ring true. He said his family had suffered from the flood, and his business had been impacted. Is he serious? A family worth millions, with a private jet and a chopper, which lives in Gone With the Wind style, and they're saying they suffered? And 12 people died. Lost their lives. What kind of selfish, insensitive grubs are these people?
Meanwhile yesterday the community buried Peter Van Straten after a long battle with terminal illness. He and his wife Marie were the couple in the famous, or infamous, floating house. An old Queenslander that floated past Marty Warburton, when Marty was on his roof. He managed to attract the rescue helicopter and signal that two people were inside the floating house. They winched them out when it was nearly dark. It was last ditch stuff. Peter was very ill. He tried to hang in and live long enough to see justice; he couldn't. But at least he knew there was another inquiry and this one was fair. I suppose as days to be buried go, Peter's was perfect. It was a fine blue sky at Grantham, perfect sunshine and justice seemed to be on its way. Mr Wagner says, we suffered too. He's got to be kidding. The real question to be asked is, how did politicians and their mates in big business, and the police, allow all this to be covered up. And if it weren't for Annastacia Palaszczuk it'd still be covered up. And now Mr Wagner is suggesting that false stories have been told to the inquiry under oath, do you mind, and his family suffered from the flood, and business had been impacted. I think what Mr Wagner was really saying was that justice is on its way and it might not be a comfortable outcome for him.
However, yesterday and today there'll be a state conference of AgForce in Queensland. That's supposed to represent the rural sector. The keynote speaker is the Minister for Natural Resources, Mining, Dr Anthony Lynham. Where's the Agriculture Minister Bill Byrne? And the dinner will be hosted by? John Wagner of Wellcamp airport, Grantham floods. What's Mr Wagner trying to do now? Get into bed with the farmers? A New Hope Coal Mine tour is on today. New Hope Coal Mine tour. How wonderful that will be! I can understand New Hope Mine selling out the farmers, but AgForce? A force for what? For the plundering of the very agricultural resource that they are meant to be defending. Unbelievable.
Thirty-first matter - broadcast on 4 August 2015 (at about 8:14 am)
ALAN JONES: This Grantham Flood Commission of Inquiry is examining, as you know, whether a quarry caused or contributed to the January flood in 2011 that killed 12 people, the Wagner quarry. Wagner, of course last week in the box under cross-examination, it wasn't a pretty sight. He was shown an aerial photograph taken in 1997 of the quarry, was asked if he agreed it depicted the land in its natural state. Mr Wagner said the picture wasn't clear enough, but then agreed the photo showed that overburden had been dumped on the western side of the quarry near the Lockyer Creek. To which Mr Sofronoff, the Commissioner, said well we can eliminate it, can't we, as being a safety barrier. Mr Wagner: yes. Mr Sofronoff: it looks like overburden's been dumped there; Mr Wagner: yes.
Mr Wagner had previously denied the very thing he was now agreeing to. Yesterday was bombshell stuff. The Channel Nine pilot who flew the chopper over Grantham on that fateful day gave evidence. They then screened his footage, it lasted one minute. He said that was all they gave him. How could that be? I suspected Mr Sofronoff, the Commissioner, knew there was something odd, because Mr Sofronoff QC then instructed a full search for the rest of the footage. I'm just wondering whether Mr Sofronoff himself may not have a copy. How come Channel Nine didn't have the full footage?
I can assure you, the entire tape is about 24 minutes, I know for a fact it's full of cockpit conversation. I know that it is now safely in the hands of people who count at this Commission of Inquiry. I understand that all the QCs on the Grantham people's side have a copy, and it demonstrates what happened. But more importantly, it demonstrates what kind of cover up we're talking about. Anyone who sees the video will know that an awful injustice has been done. Why were some people being protected?
The video shows the quarry wall, every house, the conversation of the pilots, the fact that people didn't see anything coming, that there was washing on the line. There are cockpit discussions about how many people must surely have died - all there. And the video makes it clear there's not a single doubt as to what happened at Grantham. Why was one minute presented to the Commission yesterday?
As I said, the full video exists, and when I get hold of it, I - at least when I've got my copy of it - I will play it on Richo and Jones. This is a scandal, make no mistake. And I said that from day one.
Thirty-second matter - broadcast on 11 August 2015 (at about 7:19 am and continuing at 7:40 am)
ALAN JONES: As I mentioned to you yesterday, the Queensland Premier Annastacia Palaszczuk has rightly extended the inquiry into the deadly 2011 Grantham floods. No public hearings this week. They'll continue until August 21. A report will be handed to the Queensland Government at the end of September. Annastacia Palaszczuk said I don't want to get to the situation where it was deemed that not everyone got to have their say. There are a lot of issues that have been canvassed, and a lot of questions that need answers.
You might recall that I have spoken on many occasions to the Grantham service station owner Marty Warburton, who told the inquiry on Friday that flood survivors had been treated like country hicks by police and government agencies following the flood. He said he'd been warned by a local police officer five days after the flood that he'd be locked up and charged with inciting anger in the community if he made a fuss during a visit by the Prime Minister Julia Gillard and the then Premier Anna Bligh. He said he'd not been able to represent the community's concerns to Prime Minister Gillard. Another significant witness Lisa Spieling, indeed the first witness to the inquiry, said the 2012 flood inquiry had doubted her memory of the flood despite her being there and had instead preferred faulty evidence from public servants. Well, questions also must be asked of the media as to why so little has been written and accurately about all of this.
We spoke at the end of last week of the 100 year anniversary of the landing at Lone Pine. You heard the stories of the boys who were there, who believed they were no longer fighting for king or country, but fighting for one another, for their mates, because it was the only thing that mattered. Juxtaposed against that, we were talking about the selfishness in Canberra in relation to political entitlements. Tony Burke flying his children and his girlfriend on luxury junkets. And then Grantham, like two bookends, beautiful, simple people at last with the chance to tell their terrible story about that awful afternoon in January 2011.
Some of the exchanges have been extraordinary. Lisa Spieling said during the night, I stepped up and looked after people who were injured. I've no problem with that, but I find it amazing that during the night, swift water officers were dropped into Grantham, but nobody thought to bring us a medic. Walter Sofronoff the Commissioner said, no doctors or medical staff? Lisa Spieling - no. I stepped forward and introduced myself as a member of the ADF defence force. I looked after those people. My concern is I should have been there accompanying my five children, who were hysterical. My four-year old held a torch while I cared for Mr Van Straten's leg, which was missing skin. It was after 1pm the next afternoon that I decided to spend time looking after my children. Nobody came still, even after we were flown out. It was days before anyone with medical training arrived. My own GP was stunned. He said he went to the evacuation centre in town and they told him to leave. He said he spent the night washing dishes. He said I would have liked to have helped that night.
That's hard for me to accept, the stories are crushing. Nick Cater wrote about this recently, a respected and internationally acclaimed journalist in the Spectator. He said mostly journalists pick their stories. Occasionally, the story picks you. He said, ever since Lisa Spieling described how she ran for her life with seven children along a railway track to escape a wall of water, I've been convinced that the Queensland Flood Commission - this is the original one - Catherine Holmes, Anna Bligh - got it wrong. He wrote, writes in the Spectator, the killer flood that wrecked the town of Grantham in 2011 was not, as that Commission concluded, a purely natural disaster caused by what we now are obliged to call a weather event, it was a man-made tragedy triggered by a collapsing quarry wall. He wrote, someone has to answer for that.
ALAN JONES: Well one person who has stepped up to the plate is Amanda Gearing, an outstanding Toowoomba-based journalist and broadcaster with a lot of experience who has set up a Facebook page for people to follow the proceedings. It's brilliant, it's simply www.facebook.com/granthamfloodinquiry - I'll give you that later.
Amanda Gearing, she has made a comprehensive submission to that inquiry. I've read the lot of it, she doesn't miss. She opens with a dedication to quote: the following thirteen people who died in or near Grantham on 10 January 2011, and she names them and their ages. Her submission is thorough and forensic, compiled, as she said, from her work - an investigate of interviews with quote: the many survivors, rescuers, emergency service personnel and others who were willing to speak to me about their sometimes terrifying experienced during the flood. Without them, she writes, the causes of the additional catastrophic effect of the flooding in Grantham would not have been detected.
Amanda Gearing is on the line. Amanda, good morning.
ALAN JONES: You open your submission by talking about the initial hydrology report in April 2011 by SKM, commissioned by Catherine Holmes, the Queensland Floods Commission of Inquiry. And you say on reading this it was obvious to me that the findings were inaccurate because the study ignored the existence of a large embankment around the Grantham Quarry. You said I made a submission to the Flood Commission of Inquiry, the Inquiry dismissed the first SKM hydrology report - this was the original inquiry in 2011 - and asked for a second. You write in May 2011 large sections of the remaining embankment of the northern side of the quarry were removed. By whom?
AMANDA GEARING: I'm assuming that that was by the people who owned the quarry at the time.
AMANDA GEARING: Which was Wagners. And that's partly because we were there. We went in there because we heard- well I heard from Tom Friend that there was large machinery there taking down part of the embankment, and I was working at the time on a story with Tony Koch, he got a photographer and we went there and we asked the photographer to take some quick shots and get out. He spent quite a long time doing it, so much time that we could see people in the cabs making phone calls, and before the photographer could get back in the car there was a four wheel drive preventing us from getting out of the quarry. Tony Koch had a quick word to the photographer and said grab that card, give it to Amanda, Amanda shove it down your bra - which I did. Tony then spoke to the person who stopped us and that person demanded the camera card. So I can only conclude from that that what we had on the camera card was relevant.
ALAN JONES: Correct. You wrote water levels in the town of Grantham were delayed by the presence of the quarry, which caused more of the flood water to travel along the longer route of the main Lockyer Creek channel than would've been the case if the quarry had not been in place. You quote the Insurance Council of Australia report that found that the flood had a very rapid onset, rising two to two and a half meters in 10 to 15 minutes and moving at two to three metres a second, which accounted in your words for the major damage to nearly every house in the flood plain sustaining major damage. And you submit to the Sofronoff Inquiry nearly every house on the flood plain area of Grantham suffered major damage from inundation and water velocity. A number of houses were washed off their stumps, some houses were totally destroyed, many were rendered uninhabitable. And so eventually the thing filled up like a bathtub and this man-made wall burst, over the top it went and the velocity of it just destroyed everybody.
AMANDA GEARING: Okay, there's a slight misunderstanding there. It's not the water that was in the quarry's dam that's the problem, it's the water that's backed up in the landscape upstream of the quarry wall.
AMANDA GEARING: If it was just what was in the quarry dam it wouldn't have mattered. It wouldn't have gone ... it wouldn't have mattered at all. What happened was there was a huge build up in the valley upstream of the quarry wall, so it was in the landscape.
ALAN JONES: Right. And why- you see it's very important- you highlight what you call the discrepancies between the two reports - the hydrology reports relied on by Catherine Holmes in the original Anna Bligh inquiry - you talk about the discrepancies between them and multiple eyewitness accounts, photographs and data such as aerial video vision taken from helicopters on the day, and you say that they be reconciled to the accurate scientific picture that can emerge. What did you mean in your submission when you say - and this is fairly dramatic stuff Amanda Gearing - the degree of error in the estimated maximum flood height by the SKM 2 model appears to be so great - the degree of error - that it seems impossible to have been caused by either accident or incompetence. Are you saying a cover up?
AMANDA GEARING: I'm ... I'm not saying a cover up, I'm saying it appears to be caused ... it's so big- the reason it's so big is that the difference in level of the flood water upstream of the quarry wall was underestimated by five metres. Now if you can imagine a very flat flood plain and you can imagine five metres of water sitting on top of that, that is a lot of water.
ALAN JONES: Absolutely. And you say the obvious errors it contains, this is the hydrology report - second one - have resulted in the traumatic experience of many survivors of the flood being invalidated because their reality was officially denied in the report of the inquiry. I mean, their evidence wasn't even heard was it?
AMANDA GEARING: That's correct, yes. And that is the problem when you get what was quite an unusual circumstance here. We had around 300 people, all who had narrowly escaped death, did have their houses trashed, all their possessions trashed, and just had what they stood up in, and here were authorities and here are authorities saying no. No, what you've got wrong are the speed of the water - it wasn't actually going that fast - in fact SKM 2 says that the maximum velocity through Grantham was less than walking pace. Even if you were on a zimmer frame you could shimmy away. But that is not the experience of the people who were clinging to trees with their bodies streaming out behind- streaming out because the water was moving so fast.
ALAN JONES: I mean you've spoken to a fellow called Harold George and you quote this in this comprehensive submission, he worked there which would be pre-Wagners ...
ALAN JONES: ... and he said the sand gravel and loam was mined, no material was placed above natural ground level due to the area being in a riparian zone. He attended the quarry site on May 31 2015, walked around the quarry pit. He observed - you're writing this - that the landscape had changed significantly since his work there. He noted large amounts of soil which had been added to the edges around the quarry pit which appeared to be 4.5 metres to six metres in height. So the wall was man-made.
ALAN JONES: But the Wagners have said it was part of the natural landscape.
AMANDA GEARING: When you say Wagners, there aren't actually many people who call you out on something that's wrong John ...
AMANDA GEARING: ... Alan, but it wasn't all the Wagners. And this is where we get to really what was going on, and we've had it in evidence during the week. When John Wagner gave his evidence, and when the inquiry began on the very first day when the inquiry opened on July 20, everybody was in Gatton Cultural Centre to hear that evidence. There was one person who wasn't there. That one person was a Wagner - John Wagner. John Wagner went to Tom Friend's house which is exactly opposite the quarry, and John Wagner asked Tom Friend some really interesting questions. The questions were Tom where did the water go in the flood? Where is the quarry pit? Where was the embankment? What happened to your house and the house around- the other house here, which Tom explained they were both trashed. And he said and how far is it to where the people were killed?
Now what we have here is a family not communicating. One man, Denis, is in charge of the quarry operations and has been manager of that quarry for 11 years. John Wagner is managing other big things, but the problem is Denis could not tell John what was going on, and John came down there with his camera to find out on day one of the inquiry.
ALAN JONES: And all those people- you know, we could talk forever and I'll talk to you further on television tonight Amanda. But all of those people who have argued that this inquiry have been attacked, including you and me. I was attacked in the [indistinct] massive headline at the weekend, and we haven't got time to canvas all that, although I might just go to the news. Amanda if you can hang on I'll just came back after the news to you, could I?
ALAN JONES: Okay, so we'll take the news next. At half past seven I'll come back to Amanda Gearing.
ALAN JONES: Yes this is serious stuff. I'm talking to Amanda Gearing. Where this is going is difficult to say. It's 20 to eight. Amanda, good morning again.
ALAN JONES: You say in your submission the natural disaster was exacerbated by human intervention in the landscape. You talked to Mr Harold George who said that when he worked there which would be pre Wagner's, there was no- he said that this didn't exist, the landscape had changed significantly since he worked there. You say Mr George said any claim the embankment's unnatural ground are not true. They were not there when he worked there. Didn't Mr Denis Wagner initially argue that this was part of the natural landscape and didn't he under cross examination have to concede that that wasn't correct?
ALAN JONES: Right, and you say it was exacerbated, the natural disaster was exacerbated by human intervention in the landscape. Whose intervention therefore could that be?
AMANDA GEARING: Well it's a range of people who would be people who are working at the quarry. Now...
ALAN JONES: See why I'm asking this there's a headline at the weekend and I know one of the concerns you have and I can't believe that Mr Sofronoff doesn't have [indistinct] the way in which this stuff's been reported. It was a massive headline; Alan Jones turns the Grantham flood inquiry into a blame game. And it says- the story said the Grantham inquiry headed by former Solicitor-General- it's a big headline in the Courier Mail at the weekend, Walter Sofronoff QC, has not heard a shred of evidence of cover ups or criminal wrongdoings by police. Well that's a judgement yet to be handed down, the premiers, the Wagners or anybody else. But then the article said this: There's a growing sense at the inquiry that the quarry's part in the flooding was negligible just as the original 2012 Cate Holmes flood inquiry found. I mean how can that ascertain be made?
ALAN JONES: [Laughs] I love your dry sense of humour. It went on: Some hydrologists believe the quarry may have even slowed the flow of the inland tsunami preventing even more drownings.
AMANDA GEARING: Yes, it was that assertion by Denis Wagner on [indistinct] World
Today report some little while ago which lead me to go back over all the evidence that I had collected over the years because there was a child who as you know from reading my submission...
AMANDA GEARING: ...was actually saved because he and his father were spat out by this embankment...
AMANDA GEARING: ...which forced the creek's water to come out of the creek bed and across the land. At that part of the valley the valley is actually very narrow, it's only about 600 metres wide and as we know the quarry embankment was 400 metres long. So there was only 200 metres roughly for the water to flow through and that's where this man James Perry and his little boy who was still on his back after being swept off the highway at Halidon. So they have come about five kilometres down that roaring flooded creek and but for the embankment these two people would almost definitely have died not long after. They were exhausted. And so this is what was almost miraculous about this but it also unpicks what really happened because there were two bodies who came around that loop in the quarry. A man who died at Murphy's Creek, his body went right around that loop in the river and straight on past there and went for another tens of kilometres down to Tarampa. There was another body of Sylvia Bailey who came from Postmans Ridge and her body also went around that bend. But when it came to James Perry and his little boy Teddy, they didn't. If they had stayed in the creek they would almost certainly have drowned because they'd been in the creek for a long time. But they were in fact spat out and they were taken across the paddocks and the man- the father managed to find something above that sea of water and this something was a very heavy cattle feeder and I've spoken to the owner of that cattle feeder, John Gallagher, it was about 2.5 tonnes of steel cattle feeder and it had about half a tonne of feed in it and therefore it was able to withstand what was going past which was a lot of water. That man managed to put his little boy up on that cattle feeder...
ALAN JONES: That's right. Saved his life. Isn't it- I mean one of the issues over and above everything that we're saying, how could none of this been allowed to form part of the original commission of inquiry. I mean thankfully you've made a series of short videos in February 2014 and you talk about this in your report of the findings of the fluvial geomorphologist Dr Jerry Maroulis who investigated the composition of the embankment, did he not, and didn't Dr Maroulis note, quote; the quarry embankment formed what amounted to a solid obstruction to the flood water slowing the flow for long enough for a large amount of sediment to be deposited west of the quarry embankment. And you say effectively you did have a wall of water coming through, the rate and speed and rate of vertical rise was phenomenal. The embankment formed a barrier to the flow. Once the water depth flowed over the wall, it destroyed the wall, the embankment had layers of grass, sand and rocks. It was not constructed, the material was dumped. It's not a natural part of the landscape.
AMANDA GEARING: Well I think we need to then forensically have a look at how high was it and we can tell that from the houses immediately east of the quarry. And the house immediately east of the quarry belongs to a guy called Sean and it wasn't just flood water, because there was that huge amount of debris in it, you can actually see the roof from an aerial helicopter shot and that flood wave went over the ridge of that house roof. Now if you draw a line across, if you're a surveyor and you can draw a line across, from that height you can work out how high the wall was across the quarry because water doesn't jump up in the air like that. So we can see that it was actually about six metres high.
ALAN JONES: And one of the conditions of mining in the quarry when the licence was granted was that that overburden wasn't to be stored there. That was one of the conditions wasn't it?
ALAN JONES: Absolutely. Alright Amanda, we'll leave it there and we'll talk to you tonight.
ALAN JONES: Good to talk to you. Amanda Gearing, she will be- we'll go into some detail with pictures and things tonight on Richo and Jones and- it's extraordinary stuff isn't it. Terrible people are dead and how could you not investigate this business. Thanks to Palaszczuk that investigation's taking place.
Thirty-third matter - broadcast on 18 August 2015 (at about 7:42 am)
ALAN JONES: And in all the carry-on at Grantham over the last week in a so-called hydrology report, I was last night reminded of the comments by the lawyer Saul Holt, in other words, oh the hydrology report has solved it all. It wasn't the quarry wall at all, it was the railway line. The railway line. Well Saul Holt QC is representing some of the Grantham victims.
The hydrology report was leaked last week, the quarry didn't contribute to the disaster. Believe that and you'll believe anything. But Saul Holt said in early July, the conclusions of the previous Queensland Flood Commission of Inquiry that wrapped up in 2012 didn't reflect his clients' experiences during the flood. And of course the Flood Commission of Inquiry in 2012 found - of course it did - that the quarry didn't contribute to the disaster. Another hydrology report last week - the quarry didn't contribute to the disaster.
Well lawyer Holt said in early July, his clients didn't accept the finding, given the quarry wall's size and location. He told Commissioner Soffronoff: the suggestion that that didn't have - that's the quarry - a substantial impact on the behaviour of the floodwaters is something that at least, on its face, may not pass the sanity test. Lawyer Tim Tobin representing victims went further in July to the Soffronoff Commission of Inquiry saying the quarry wall burst, sending a large influx of water into Grantham, which caused an increase in damage and made it lethal on that date.
Saul Holt QC, for some of the victims said the survivors had felt ignored, confused and patronised. A lawyer for the Wagners at the same time said the quarry had no material impact on the flooding. Its existence - that is the quarry - did not cause or materially contribute to the flooding in Grantham, which was inevitable, based on the magnitude of the flooding, inevitable that 12 people would be killed. There have been floods of that kind in Grantham before, no one died.
But here was this wall, massive wall - it shouldn't have been built - illegal. The water, water, building up, billions of litres of water, the wall cracks goes whoosh, bang, nowhere to go, heads towards the railway line, nowhere to go, but the wall, the water wouldn't have been near the railway line if it hadn't been banked up behind the quarry wall.
We've had similar floods in Grantham, of the same dimension, no one lost their life. But of course, the defence that the wall didn't contribute to the flooding reminded me of Mandy Rice-Davies, way back in the 60s, in the famous Profumo affair, when she said oh Profumo, well he would say that, wouldn't he. And they would say that.
Thirty-fourth matter - broadcast on 20 August 2015 (at about 7:42 am)
ALAN JONES: Now, you will recall last week, the [indistinct] at Grantham that was all this hoopla about a hydrologist's report. Oh, and the railway line was the fault - not the water building up behind the quarry wall. The report was by a civil engineer, Dr John Macintosh. Which supposedly, if you believe the headlines last week, as I said, it didn't pass the sanity test. Cleared the Wagner quarry of all responsibility for creating or exacerbating the devastating four to six metre surge, which killed 12 people.
Well, Dr Macintosh's has had to spend three days in the witness box, at the Grantham inquiry, answering questions about his report. And if nothing else, the questioning has clearly established the danger of building levy levee banks beside a quarry pit.
Remember, Queensland's Water Resources Commission, gave permission for the construction of the quarry in 1989, on the condition that quote over-burden was quote not stockpiled so as to form a levy levee bank. It was stockpiled. That was illegal. Unarguable.
Many believe that's exactly what was happening during the construction of the Wagner quarry. Dr Macintosh yesterday claimed the Grantham flood's fatal surge would have occurred regardless of the existence of the Wagner quarry. But the fact is that Grantham had floods like this in the past - no one's ever died.
He later conceded the quarry embankments were responsible for raising Lockyer Creek water levels 20 centimetres for at least 2 kilometres. He said the general issue of unregulated levy levee banks, it is an issue. This is Macintosh, the bloke who did the hydrology report. It does make a difference. It has caused - and will probably continue to cause - grief. Like all things, if you're not careful, you put in a levee bank to solve one problem, and you can cause another. Precisely, Dr Macintosh.
Which makes me wonder how you reach the conclusion in the first place that it was the railway line not the levee bank. The inquiry continues.
That each of the first, second, third and fourth plaintiffs orchestrated with others a high-level cover-up of involvement in the deaths of people at Grantham, in order to avoid being held to account for those deaths, and to protect his financial interests.
That each of the first, second, third and fourth plaintiffs had plenty to hide in connection with the deaths of people at Grantham, and in concert with others was knowingly involved in a high-level cover-up to ensure that his culpability for those deaths was never investigated.
That each of the first, second, third and fourth plaintiffs orchestrated a cover-up of his role in the deaths of 19 poor, marginalised people in the Grantham flood disaster, in order to protect his own financial interests.
That each of the first, second, third and fourth plaintiffs was involved in orchestrating a disgusting campaign of vilification, bullying and intimidation to prevent the truth coming out at the Queensland Floods Inquiry and prevent being held accountable for the deaths of 19 poor, marginalised people in the Grantham flood disaster.
That each of the first, second, third and fourth plaintiffs caused the deaths of ten adults and two children by crudely constructing an unauthorised levee on the western boundary of his quarry which burst in two places, resulting in lethal waves of millions of tonnes of water flooding into and devastating the rural town of Grantham.
That each of the first, second, third and fourth plaintiffs, knowing that his culpability for the deaths of people in the Grantham flood disaster had been covered up, tried to persuade the Premier that allegations about a cover-up were a conspiracy theory.
That each of the first, second, third and fourth plaintiffs, knowing that his culpability for the deaths of people in the Grantham flood disaster had been covered up, persuaded the Premier that she should put her own self-interest ahead of assisting the truth to come out, and refuse to appear before a Senate inquiry into the disaster.
That each of the first, second, third and fourth plaintiffs was a corrupt businessmen in that he was able to build an airport in breach of all laws by reason of his connections with the Premier, Campbell Newman and other officials in local government and state government.
That each of the first, second, third and fourth plaintiffs had constructed an airport in Toowoomba and had broken all the rules in the construction of the airport.
That each of the first, second, third and fourth plaintiffs caused the deaths of 13 people by illegally constructing a dam wall across Lockyer Creek which collapsed, releasing a tsunami-like wall of water that engulfed Grantham.
That each of the first, second, third and fourth plaintiffs was knowingly involved in a massive cover-up of the cause of the Grantham flood disaster, in order to protect himself from being held to account for the deaths of 13 people in the disaster.
That each of the first, second, third and fourth plaintiffs was involved in disgusting bullying and intimidation of witnesses at the Queensland Floods Inquiry, in order to protect himself from being held to account for the deaths of 13 people in the Grantham flood disaster.
That each of the first, second, third and fourth plaintiffs caused the deaths of 12 people by constructing a dam at his quarry across Lockyer Creek which collapsed under the weight of water, causing the Grantham flood.
That each of the first, second, third and fourth plaintiffs caused the deaths of 12 people by constructing a wall at his quarry that burst, unleashing a veritable tsunami causing the 2011 Grantham flood which deaths could have been completely avoided had he not constructed the wall.
That each of the first, second, third and fourth plaintiffs callously refused to admit to his legal liability for the deaths of 12 people in the Grantham flood disaster, when a man-made wall at his quarry burst, causing a veritable tsunami that killed 12 people.
That each of the first, second, third and fourth plaintiffs sold his quarry in order to attempt to evade his legal liability for causing the deaths of 12 people in the Grantham flood disaster.
That each of the first, second, third and fourth plaintiffs lied publicly in claiming that the embankment at his quarry was part of the natural landscape rather than being man-made, in order to evade his legal liability for the deaths of 12 people after the embankment collapsed.
That each of the first, second, third and fourth plaintiffs was a callous and selfish person in that he built an airport without an environmental impact statement, a health impact statement, a community impact statement, a water impact statement, and without any compensation for people living in hopeless proximity to the airport.
That each of the first, second, third and fourth plaintiffs built an airport without seeking proper approvals which he knew were required with disgraceful disregard for the interests of the community.
That each of the first, second, third and fourth plaintiffs caused the deaths of 12 people by constructing a massive wall at his quarry that collapsed under the weight of water, unleashing a tsunami, in the 2011 Grantham flood.
That each of the first, second, third and fourth plaintiffs has engaged in a cover-up of his culpability for the deaths of 12 people in the 2011 Grantham flood, thereby denying the prospect of justice for the still grieving townspeople of Grantham.
That each of the first, second, third and fourth plaintiffs told a disgraceful lie by stating that a massive wall that he constructed at his quarry, and which collapsed unleashing the tsunami that caused the 2011 Grantham flood that killed 12 people, was part of the natural landscape.
That each of the first, second, third and fourth plaintiffs dishonestly tried to get away with building an airport in Toowoomba without seeking proper approvals from the Toowoomba Regional Council, because he knew the Council was gutless and the state government was on side, letting him walk over the community.
That each of the first, second, third and fourth plaintiffs built the infamous Wellcamp Airport in disregard of the interests of the community without first obtaining, as he was required to do, an environmental impact statement, a health impact statement, a community impact statement or a water impact statement, or paying the compensation owing to those adversely affected because they lived in close proximity to the airport.
That each of the first, second, third and fourth plaintiffs caused the deaths of 12 people by constructing a massive wall at his quarry that collapsed under the weight of water, causing the 2011 Grantham flood.
That each of the first, second, third and fourth plaintiffs told a disgraceful lie by stating that a massive wall that he constructed at his quarry, and which collapsed, causing the 2011 Grantham flood that killed 12 people, was part of the natural landscape.
That each of the first, second, third and fourth plaintiffs engaged in a cover-up of his culpability for the deaths of 12 people in the 2011 Grantham flood, thereby denying the prospect of justice for the still grieving townspeople of Grantham.
That each of the first, second, third and fourth plaintiffs caused the deaths of 12 people by constructing a dam wall in a designated water course which collapsed, causing the 2011 Grantham flood.
That each of the first, second, third and fourth plaintiffs in concert with others, conspired in a disgraceful cover-up of his culpability for the deaths of 12 people in the 2011 Grantham flood.
That each of the first, second, third and fourth plaintiffs bullied and intimidated persons who tried to expose the fact that the collapse of a dam wall at his quarry was the cause of the deaths of 12 people in the Grantham flood disaster.
That each of the first, second, third and fourth plaintiffs conspired with the Deputy Prime Minister, Warren Truss, and a prominent member of the government, Barnaby Joyce, to cover-up his culpability for the deaths of people in the Grantham flood disaster.
That the second plaintiff conspired with the Deputy Prime Minister of Australia, Warren Truss, and a prominent member of the government, Barnaby Joyce, to cover up his culpability for the deaths of people in the Grantham flood disaster.
That each of the first, second, third and fourth plaintiffs in concert with the Bligh and Newman Governments and police, criminally conspired over a period of four years in a disgraceful and massive cover-up of the cause of the horrific and terrifying Grantham flood.
That each of the first, second, third and fourth plaintiffs terrorised and vilified two ordinary people, Heather Brown and David Pascoe, forcing them to change address and live in fear, because they threatened to expose the truth about his involvement in the horrific flooding of the town of Grantham and the deaths of a number of people, including a baby.
That each of the first, second, third and fourth plaintiffs is a person who knows only two things: self-interest and bullying.
That each of the first, second, third and fourth plaintiffs, for his own selfish and greedy purposes, stole airspace above the Oakey Army Base, which will destroy the Oakey Army Base, which trains helicopter pilots, and harm the national defence interest.
That each of the first, second, third and fourth plaintiffs is a monumental hypocrite, in that he went to Canberra to talk to his mate Ian Macfarlane to stop the destruction of the Borneo Barracks on the ground that they are important for defence, when he is responsible for destroying the Oakey defence base for his own selfish, greedy purposes.
That each of the first, second, third and fourth plaintiffs built a wall at his quarry by illegally leaving overburden on the site, which broke, causing a tsunami that caused the death of people in the Grantham flood disaster.
That each of the first, second, third and fourth plaintiffs was running for cover because his liability for the deaths of people in the Grantham flood disaster, after the wall at his quarry broke causing a tsunami, was likely to be exposed by the Grantham inquiry.
That each of the first, second, third and fourth plaintiffs was trying to cover up the fact that he had either built an illegal wall at his quarry, which burst and caused a tsunami which killed people in the Grantham flood disaster, or had his mates change the rules, which allowed the wall to be built.
That each of the first, second, third and fourth plaintiffs conspired with Barnaby Joyce and Warren Truss, the National Party Leader, to cover up his culpability for the deaths of people in the Grantham flood disaster.
That each of the first, second, third and fourth plaintiffs conspired with Warren Truss, the National Party leader, Ian McFarlane, the Energy Minister, and a prominent member of the government, Barnaby Joyce, to cooperate in protecting each other from the exposure of their misappropriations of federal money and illegal deals.
That each of the first, second, third and fourth plaintiffs illegally obtained a national asset, the airspace over the Oakey military base, for use at his private airport.
That each of the first, second, third and fourth plaintiffs behaved disgracefully by building an airport in Toowoomba without seeking proper legal approvals and then taking a national asset, the airspace over Oakey, without making any payment for it.
That each of the first, second, third and fourth plaintiffs in breach of a condition on his right to mine his quarry at Grantham, built a massive wall from stockpiled overburden that collapsed, causing the Grantham flood that killed 12 people.
That each of the first, second, third and fourth plaintiffs told a disgraceful lie by stating that an embankment at his quarry that collapsed, causing the deaths of 12 people in the 2011 Grantham flood, was part of the natural landscape, when he well knew that he had built it from stockpiled overburden in breach of a condition of his right to mine the quarry.
That each of the first, second, third and fourth plaintiffs sold his quarry to Boral, in an effort to cover up his culpability for killing 12 people in the Grantham flood disaster.
That each of the first, second, third and fourth plaintiffs was a disgusting and disgraceful person who had tried to evade his responsibility for the deaths of people in the Grantham flood disaster, but who was now finally being exposed by ordinary tough, brave, courageous Australians.
That each of the first, second, third and fourth plaintiffs caused the Grantham flood by building a huge wall, three times higher than a truck, around his quarry, which collapsed, causing water to smash houses to bits and a shed to explode.
That each of the first, second, third and fourth plaintiffs told a disgraceful lie by stating that a wall on his quarry that burst, causing water to smash houses to bits and a shed to explode, was a natural feature of the landscape, when he well knew that it was a man-made structure.
That the second plaintiff conspired with Warren Truss, the Deputy Prime Minister of Australia, and other federal ministers, that they would cooperate together to cover up his culpability for the deaths of people in the Grantham flood disaster.
That each of the first, second, third and fourth plaintiffs is a person who thought he could get away with building an airport at Toowoomba without seeking proper approvals, and without having to pay for a national asset, the airspace over Oakey.
That each of the first, second, third and fourth plaintiffs, by reason of his corrupt relationship with the Coalition in Queensland and Canberra, was able to buy the airport at Toowoomba without seeking the required approvals and were then gifted Oakey airspace, which is a valuable national asset.
That each of the first, second, third and fourth plaintiffs caused the deaths of 12 people by stockpiling overburden at his quarry so as to form a levee bank, in breach of a condition of the right to mine the quarry, which collapsed causing the Grantham flood.
That each of the first, second, third and fourth plaintiffs told a disgraceful lie by stating that a wall alongside his quarry that collapsed, causing the Grantham flood and killing 12 people, was part of the natural landscape, when he well knew that it had in fact been constructed from a stockpile of overburden in breach of a condition of the right to mine the quarry.
That each of the first, second, third and fourth plaintiffs sold his quarry to Boral in an effort to cover up his legal culpability for the horrific deaths of 12 people in the Grantham flood disaster.
That each of the first, second, third and fourth plaintiffs disgracefully instructed the barrister appearing for him at the Grantham flood inquiry to bully a local resident, Ian Pinkerton, while cross-examining him as he gave evidence about the torment he and his family suffered during the fatal floods that hit the Lockyer Valley in 2011.
That each of the first, second, third and fourth plaintiffs has, for years, bullied and intimidated tough, brave and courageous victims of the 2011 Grantham flood in order to shut them up and cover up his culpability for causing the flood and the deaths of 12 people.
That the first plaintiff was a selfish coward for not simply admitting to his liability for the deaths of 12 people in the Grantham flood disaster.
That each of the first, second, third and fourth plaintiffs attempted to cover up his culpability for causing the deadly Grantham flood by pulling down a wall at his quarry straight after the flood and removing the material, which was full of big chunks of heavy rocks and cement, on the back of trucks.
That each of the first, second, third and fourth plaintiffs told a disgraceful lie by stating that the wall at his quarry that caused the deadly Grantham flood was a natural feature of the landscape, when he well knew it was in fact a man-made wall that was built from big chunks of heavy rocks and cement.
That the first plaintiff engaged in a disgraceful and bizarre attempt to bully and intimidate a victim of the deadly Grantham flood, Ian Pinkerton, and to escape scrutiny for his culpability in causing the flood, by driving to Pinkerton's house after the flood inquiry had adjourned, getting out of his car, and standing and staring at Pinkerton's home.
That each of the first, second, third and fourth plaintiffs caused the disastrous 2011 Grantham flood by building a massive wall at his quarry that collapsed, sending water cannoning north east and down to Grantham.
That each of the first, second, third and fourth plaintiffs told a disgraceful lie by stating that the massive wall at his quarry that caused the disastrous 2011 Grantham flood was already there when he bought the quarry, when he well knew that he had built the wall from rubbish at the quarry over a period of years.
That the first plaintiff attempted to bully and intimidate a victim of the disastrous 2011 Grantham flood, Ian Pinkerton, by pulling up outside Pinkerton's house after he had given evidence to the flood inquiry, getting out of his car, and standing and staring at Pinkerton's home.
That each of the first, second, third and fourth plaintiffs was a selfish, insensitive grub for having lied about the fact that the collapse of an illegal levee bank at his quarry was the cause of the flood that caused the horrific deaths of 12 people in the Grantham flood disaster.
That each of the first, second, third and fourth plaintiffs is a selfish, insensitive grub who falsely claimed to have suffered in the Grantham floods in which 12 people died.
That each of the first, second, third and fourth plaintiffs in concert with politicians, big business and the police, engaged in a cover up of his culpability for the Grantham flood in which 12 people died.
That the first plaintiff while giving evidence at the Grantham flood inquiry, was forced to admit that he had previously lied about dumping overburden along the side of the creek at his quarry contrary to the conditions allowing him to mine the quarry, about knowing that overburden had been so dumped, and about dumping overburden under power lines.
That the first plaintiff disgracefully claimed that victims of the Grantham flood had told false stories under oath at the flood inquiry.
That the second plaintiff hosted a dinner for the state conference of Agforce in Queensland, with the intention of getting into bed with farmers and getting Agforce to sell out so that he can plunder the agricultural resources that Agforce is meant to be defending.
That each of the first, second, third and fourth plaintiffs was knowingly involved in a scandalous cover-up of the role that his quarry played in the deaths of people in the Grantham flood disaster, a cover-up that resulted in an appalling injustice.
That the first plaintiff, while giving evidence at the Grantham flood inquiry, was forced to admit that he had previously lied about overburden having been dumped on the western side of his quarry near Lockyer Creek.
That each of the first, second, third and fourth plaintiffs caused the Grantham flood that killed 13 people on 10 January 2011 by constructing a massive wall at his quarry, which enabled a huge build-up of flood water upstream of the wall, which in turn destroyed the wall, sending a wall of water at a speed and rate of rise that was phenomenal through the flood plain area of Grantham.
That each of the first, second, third and fourth plaintiffs attempted to cover up his culpability for causing the Grantham flood that killed 13 people on 10 January 2011 by removing large sections of an embankment on the northern side of his quarry in May 2011.
That each of the first, second, third and fourth plaintiffs engaged in a sinister cover up of his culpability for causing the Grantham flood that killed 13 people on 10 January 2011, by attempting to intimidate a journalist and confiscate photographic evidence.
That the first plaintiff, while giving evidence at the Grantham flood inquiry, was forced to admit that he had previously lied about the embankment at his quarry that exacerbated the 2011 Grantham flood being part of the natural landscape.
That each of the first, second, third and fourth plaintiffs caused the lethal Grantham flood by constructing a massive, illegally built, wall at his quarry which burst, sending billions of litres of water into Grantham.
That each of the first, second, third and fourth plaintiffs illegally constructed a massive levee bank at his quarry.
That each of the first, second, third and fourth plaintiffs caused the deaths of 12 people in the Grantham flood, by constructing an illegal, massive levee bank at his quarry that created or exacerbated a devastating and fatal four to six metre surge of flood water.
[1] The one exception is the Nineteenth Matter, which was published by the second defendant on Sky News in the course of the Richo + Jones Program and subsequently uploaded by the first defendant to the 2GB website at www.2gb.com.
[4] SFASC, paragraphs 6(g), 22, 26 and FFAD, paragraph 2(f).
[5] SFASC, paragraph 7(c) and FFAD, paragraph 4(b)(ii).
[6] SFASC, paragraph 8(e) and FFAD, paragraph 6(e).
[8] Section 8 of the Defamation Act 2005 (Qld).
[9] There were originally 34 broadcasts, but the plaintiffs no longer rely on the fourth and thirteenth broadcasts; SFASC, Attachments 1 to 34.
[10] Wagners & Ors v Harbour Radio Pty Ltd & Ors [2017] QSC 222. The proceeding was case managed by Applegarth J as part of the Supervised Case List.
[11] Wagners & Ors v Harbour Radio Pty Ltd & Ors [2017] QSC 222 at [75].
[12] The original "Issues for Determination" document was 91 pages and reduced in the course of the trial to a final version of 36 pages.
[13] Fifth, Eighteenth and Twenty-Second Matters.
[14] In respect of eight matters complained of.
[19] Section 30(1)(c) of the Defamation Act 2005 (Qld).
[20] SFASC, paragraph 73(a); FFAD deleted paragraphs 141(a)(i)(3), 141(a)(ii)(4), Attachment A - truth, paragraph 1(l).
[21] T 23-3, line 46 to T 23-4, line 4.
[22] T 1-34, lines 5-9; Exhibit 20, TB Vol 14, Tabs 622 and 623.
[24] Exhibit 40, Town Planning Report of Mr Greg Ovenden, 29 November 2017, page 7, paragraph 2.1.1 and page 8, paragraph 2.2.1.
[27] Exhibit 17, Report of Dr David Newton, 16 March 2018, page 29, [40] (Attachment 6 to Exhibit 15, Joint Expert Report).
[31] Exhibit 20, TB Vol 3, Tab 152, Grantham Floods Commission of Inquiry Report, October 2015, Terms of Reference, page 221.
[32] Exhibit 20, TB Vol 3, Tab 152, Grantham Floods Commission of Inquiry Report, October 2015, page 86, paragraphs 81 and 82; page 87, paragraphs 83 and 84; page 88, paragraph 100.
[33] Apart from typographical errors, the transcript is admitted: FFAD 9(a). Transcripts of the matters complained of are reproduced in these Reasons with original typographical errors intact.
[36] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 at [11] and [17].
[37] Jones v Skelton [1963] 1 WLR 1362 at 1371 per Lord Morris.
[39] Lewis v Daily Telegraph Ltd [1964] AC 234 at 260, 281 and 285 per Lord Diplock.
[40] [1998] NSWSC 4; (1998) 43 NSWLR 158 at 165-167.
[41] [1998] NSWSC 4; (1998) 43 NSWLR 158 at 166.
[42] Plaintiffs' Submissions, [78]-[84].
[43] [2017] WASC 367 at [87].
[44] (1998) 193 CLR 519 at 546 per Gaudron and Gummow JJ; see also David Syme & Co v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667 at 674, 686 and 690.
[45] Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 at 152 and Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 332 ALR 257 at [73]; Plaintiffs' Submissions, [88].
[48] Plaintiffs' Submissions, [109]-[110].
[50] Third, Eighth, Fourteenth, Twenty-First, Twenty-Second and Thirty-Fourth Matters.
[52] Plaintiffs' Submissions, [53]-[54], citing David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234 at 238 per Isaacs J; Jones v E Hulton & Co [1909] 2 KB 444 at 477 per Lord Farwell; and Universal Communication Network Inc trading as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd & Chan [2008] NSWCA 1 at [42].
[53] [1974] 2 NSWLR 348 at 364.
[54] Zoef v Nationwide News Pty Ltd [2016] NSWCA 283; (2016) 92 NSWLR 570 at [130]; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245.
[57] [1971] 1 WLR 1239 at 1254.
[58] Exhibit 20, TB Vol 1, Tabs 34-70, TB Vol 2, Tabs 71-104.
[70] SFASC, paragraph 24, Particulars of extrinsic facts.
[73] Exhibit 20, TB Vol 5, Tab 212 at pages 7-11; SFASC, paragraph 24(b)(iv)(B).
[74] Exhibit 20, TB Vol 5, Tab 213 at page 3; SFASC, paragraph 24(b)(iv)(C).
[75] Nixon v Slater & Gordon [2000] FCA 531; (2000) 175 ALR 15 at [42].
[76] Plaintiffs' Submissions, [86] citing Wright v Caan [2011] EWHC 1978 (QB) at [26]; Grapelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 and McAlpine v Bercow [2013] EWHC 1342 (QB) at [54].
[77] [1940] 2 KB 507 at 515; Defendants' Outline of Argument - Part 2, [53].
[78] Wright v Caan [2011] EWHC 1978 (QB) at [26] referring to Grapelli v Derek Block (Holdings) [1981] 1 WLR 822 at page 830AC per Lord Dunn.
[82] Lewis v Daily Telegraph Ltd [1964] AC 234 at 260, 281 and 285.
[83] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 at [11].
[85] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 at 473 and 484.
[91] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 at [11].
[94] Plaintiffs' Submissions, [212] and [213].
[95] Plaintiffs' Submissions, [220]-[221].
[100] T 22-20, line 35 to T 22-22 line 15; T 22-63, lines 15-26.
[101] Exceptions to this are the Twelfth Matter and the Twenty-Fourth Matter discussed below.
[103] Plaintiffs' Submissions, [241].
[104] Plaintiffs' Submissions, [246].
[110] Plaintiffs' Submissions, [278].
[112] The equivalent imputations for the Tenth Matter are imputations (b), (c) and (d); see [150]-[152] above.
[113] SFASC, Particulars to paragraph 43.
[114] Plaintiffs' Submissions, [270].
[116] Plaintiffs' Submissions, [288]-[289] and [303].
[117] [1928] HCA 50; (1928) 41 CLR 331 at 363-364 (emphasis in original).
[119] Plaintiffs' Submissions, [291].
[123] Plaintiffs' Submissions, [296]-[297].
[124] Plaintiffs' Submissions, [303].
[125] Plaintiffs' Submissions, [300].
[128] Attachment 3 to these Reasons, transcript of the broadcast by radio 2GB on 29 October 2014 at approximately 7.22 am.
[129] All further references in these Reasons to 'the defendants' are to be read as meaning only the first, second and third defendants.
[131] Plaintiffs' Submissions, [311].
[132] Plaintiffs' Submissions, [311].
[133] [1982] HCA 50; (1982) 149 CLR 293 at 300.
[135] Plaintiffs' Submissions, [320].
[136] Plaintiffs' Submissions, [323].
[139] Plaintiffs' Submissions, [334].
[142] Plaintiffs' Submissions, [350]; see also Lee v Wilson & Mackinnon [1934] HCA 60; (1934) 51 CLR 276 per Dixon J at 292.
[145] Plaintiffs' Submissions, [354].
[150] Plaintiffs' Submissions, [381]-[382].
[157] Plaintiffs' Submissions, [414].
[158] Plaintiffs' Submissions, [419].
[161] Plaintiffs' Submissions, [430].
[162] Plaintiffs' Submissions, [437].
[164] Plaintiffs' Submissions, [444].
[165] Plaintiffs' Submissions, [446].
[166] Plaintiffs' submissions, [462].
[168] Plaintiffs' Submissions, [469].
[172] Plaintiffs' Submissions, [480]-[482].
[175] Plaintiffs' Submissions, [500].
[176] Plaintiffs' Submissions, [502] (emphasis in original).
[181] Plaintiffs' Submissions, [521].
[182] Plaintiffs' Submissions, [521].
[186] Plaintiffs' Submissions, [554].
[187] Plaintiffs' Submissions, [566].
[190] Plaintiffs' Submissions, [579].
[196] Plaintiffs' Submissions, [602].
[197] Plaintiffs' Submissions, [608].
[202] Plaintiffs' Submissions, [629]-[630].
[205] Plaintiffs' Submissions, [640].
[206] Plaintiffs' Submissions, [642]-[643].
[208] Plaintiffs' Submissions, [645].
[209] Plaintiffs' Submissions, [648].
[212] SFASC, paragraphs 12(a), 12(b), 18(a), 24(a), 24(b), 28(a), 28(b), 31(a), 31(c), 34(a), 37(a), 37(b), 37(c), 37(d), 37(e), 40(a), 40(b), 40(c), 40(d), 43(a), 43(b), 43(c), 43(d), 43(e), 52(a), 52(b), 52(c), 55, 57, 60(a), 60(b), 63(a), 63(b), 63(c), 68, 71(a),71(b), 73(a), 73(b), 73(c), 80(a), 80(b), 80(c), 80(d), 86(a), 86(b), 86(c), 88, 91(a), 91(b), 91(c), 91(d), 91(e), 91(f), 91(g), 92, 93B(a), 93B(b), 94, 95B(a), 95B(b), 96, 99(a), 99(b), 99(c), 100(a), 100(b), 100A, 102, 102A, 105(a), 105(c), 105A, 108(a), 111(a), 111(b).
[213] SFASC, paragraphs 15(a), 15(b), 31(d), 105(b).
[222] Bristow v Adams [2012] NSWCA 166 at [20]- [31].
[223] Plaintiffs' Submissions on Defences, [4], citing Howden v Truth & Sportsman Ltd [1937] HCA 74; (1937) 58 CLR 416 at 420; Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 at [274] and [306]; Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 at [59]; Sutherland v Stopes [1925] AC 47 at 79; Defendants' Outline - Part 1, [156].
[224] FFAD, paragraph 141(a)(i)1 and paragraph 141(a)(v).
[225] In Exhibit 15, the Joint Expert Report, at page 1, "bund" is defined to mean a mound of earth up to about six metres high which had been placed on top of the natural bank along the western side of the quarry pit prior to the January 2011 flood event.
[228] Exhibit 15, Joint Expert Report. Neither Dr Smart nor Dr Maroulis provided individual reports.
[229] Exhibit 17, Report of Dr David Newton, dated 16 March 2018.
[231] Wagner & Ors v Harbour Radio Pty Ltd & Ors [2017] QSC 177.
[232] Exhibit 15, Joint Expert Report, Attachment 1, Issues for expert opinion, hydrology, 7 November 2017, paragraphs 1 and 2.
[233] Exhibit 15, Joint Expert Report, Table 1, Summary of responses to issues for expert opinion, A.1.
[234] Exhibit 15, Joint Expert Report, paragraph 17.
[237] Exhibit 15, Joint Expert Report, table 1, summary of responses to issues for expert opinion, A.1.
[238] T 7-13, line 43 to T 7-14, line 2.
[240] Exhibit 15, Joint Expert Report, paragraph 153.
[241] Exhibit 15, Joint Expert Report, paragraph 77.
[242] Exhibit 15, Joint Expert Report, paragraph 80.
[243] Exhibit 15, Joint Expert Report, paragraph 83.
[244] Exhibit 15, Joint Expert Report, paragraphs 85-115.
[245] Exhibit 15, Joint Expert Report, paragraphs 91-93.
[246] Exhibit 15, Joint Expert Report, paragraph 88.
[247] Exhibit 15, Joint Expert Report, paragraph 93.
[248] Exhibit 15, Joint Expert Report, paragraph 86.
[249] Exhibit 15, Joint Expert Report, paragraph 116.
[250] Exhibit 15, Joint Expert Report, paragraph 125.
[251] Exhibit 15, Joint Expert Report, paragraph 139.
[252] Exhibit 15, Joint Expert Report, paragraphs 141-147.
[253] Exhibit 15, Joint Expert Report, paragraph 153.
[254] Exhibit 15, Joint Expert Report, paragraphs 151-184.
[255] Exhibit 15, Joint Expert Report, paragraph 155.
[256] Exhibit 15, Joint Expert Report, paragraph 158.
[257] Exhibit 15, Joint Expert Report, paragraph 163.
[258] Exhibit 15, Joint Expert Report, paragraph 167.
[259] Exhibit 15, Joint Expert Report, paragraph 169.
[260] Exhibit 15, Joint Expert Report, paragraph 170.
[261] Exhibit 15, Joint Expert Report, paragraph 184.
[262] Exhibit 15, Joint Expert Report, paragraphs 439-442.
[263] Exhibit 17, Report of Dr David Newton, dated 16 March 2018, page 29, [40]
[264] Exhibit 15, Joint Expert Report, Attachment 11.
[272] Plaintiffs' Submissions on Defences, [173]-[174].
[279] T 8-9, line 40 to T 8-10, line 4.
[280] Exhibit 15, Joint Expert Report, paragraph 167.
[282] Exhibit 15, Joint Expert Report, paragraphs 33-38.
[284] Exhibit 15, Joint Expert Report, paragraph 368.
[287] Exhibit 15, Joint Expert Report, paragraph 40.
[288] T 7-17, line 28 to T 7-18, line 8.
[289] Exhibit 20, TB Vol 6, Tabs 298 and 299.
[290] Plaintiffs' Submissions on Defences, [160].
[291] Exhibit 15, Joint Expert Report, page 51.
[292] Exhibit 15, Joint Expert Report, paragraph 171.
[295] Exhibit 15, Joint Expert Report, paragraphs 48-49.
[296] Exhibit 15, Joint Expert Report, page 20.
[297] Exhibit 15, Joint Expert Report, paragraphs 157-159.
[300] Exhibit 15, Joint Expert Report, paragraph 51.
[301] Exhibit 15, Joint Expert Report, page 22.
[302] Exhibit 15, Joint Expert Report, paragraphs 185-190.
[304] Exhibit 15, Joint Expert Report, paragraph 190.
[305] Exhibit 17, Report of Dr David Newton, dated 16 March 2018, page 75, [142]-[144].
[307] Plaintiffs' Submissions on Defences, [272].
[309] Exhibit 15, Joint Expert Report, page 54 and page 55, paragraphs 196 and 197.
[310] Exhibit 15, Joint Expert Report, paragraphs 216-240.
[311] Exhibit 17, Report of Dr David Newton, dated 16 March 2018, page 99, [178].
[312] Exhibit 15, Joint Expert Report, paragraphs 191 and 243.
[313] Plaintiffs' Submissions on Defences, [273].
[315] [2001] NSWCA 305; (2001) 52 NSWLR 705 at [64], [69] and [79] per Heydon JA.
[316] MFI-31, Third Report of Mr Gerard Dam, page 7, "Final statement".
[317] MFI-35, First Report of Mr Gerard Dam, page 4.
[318] MFI-35, First Report of Mr Gerard Dam, page 5.
[319] Plaintiffs' Submissions on Defences, [116]-[117].
[320] Defendants' Submissions regarding admissibility of Mr Dam's reports, [23].
[321] Defendants' Submissions regarding admissibility of Mr Dam's reports, [26].
[322] MFI-35, First Report of Mr Gerard Dam, page 30, second dot point.
[323] Defendants' submissions regarding admissibility of Mr Dam's reports, [26].
[326] Exhibit 15, Joint Expert Report, page 28.
[327] T 7-26, lines 44-47 and T 7-27, lines 41-42.
[328] Plaintiffs' Submissions on Defences, [139(a)].
[329] Plaintiffs' Submissions on Defences, [139(d) and (e)].
[331] T 8-11, line 1 to T 8-12, line 16.
[332] T 21-51, line 38; Plaintiffs' Submissions on Defences, [139(g)].
[333] T 21-51, line 38; Plaintiffs' Submissions on Defences, [139(g)].
[334] Plaintiffs' Submissions on Defences, [139(i)].
[337] Exhibit 15, Joint Expert Report, paragraphs 385 and 386.
[338] Plaintiffs' Submissions on Defences, [148]-[151].
[341] Exhibit 15, Joint Expert Report, paragraph 16.
[342] Plaintiffs' Submissions on Defences, [17]; T 8-51, lines 30 - 31; Exhibit 15, Joint Expert Report, paragraph 18.
[343] Exhibit 15, Joint Expert Report, paragraph 18.
[344] Exhibit 15, Joint Expert Report, paragraphs 23-25.
[345] Exhibit 17, Report of Dr David Newton, dated 16 March 2018, page 31, [44]-[46].
[346] Exhibit 17, Report of Dr David Newton, dated 16 March 2018, pages 31, 32, 58-85.
[347] Plaintiffs' Submissions on Defences, [80].
[349] Affidavit of Mikah Pajaczkowska-Russell, affirmed 12 June 2018.
[350] Exhibit 15, Joint Expert Report, paragraph 46.
[352] Exhibit 15, Joint Expert Report, paragraph 47.
[357] Exhibit 17, Report of Dr David Newton, dated 16 March 2018, section 7.2, pages 54-56.
[362] Plaintiffs' Submissions on Defences, [50].
[363] Exhibit 17, Report of Dr David Newton, dated 16 March 2018, figure 7.1, page 55.
[365] Exhibit 15, Joint Expert Report, paragraph 108.
[368] Plaintiffs' Submissions on Defences, [84]-[85]; Exhibit 17, Report of Dr David Newton, dated 16 March 2018, page 99, [181].
[369] T 15-77, line 44 to T 15-78, line 5.
[373] Exhibit 15, Joint Expert Report, paragraph 366.
[392] Exhibit 15, Joint Expert Report, Appendix GS-6, paragraph 15.
[393] Exhibit 14, Railway Street, videos 8.1-8.4.
[398] T 17-91, line 47 to T 17-92, line 10.
[404] Exhibit 15, Joint Expert Report, Appendix GS-6, paragraph 20.
[405] Exhibit 15, Joint Expert Report, paragraphs 165 and 449.
[407] Plaintiffs' Submissions on Defences, [186].
[408] T 17-60, line 42 to T 17-62, line 28.
[409] Exhibit 15, Joint Expert Report, Appendix GS-6, paragraph 22.
[411] Exhibit 14, 1347 Gatton Helidon Road, videos 12.1-12.8.
[412] Exhibit 15, Joint Expert Report, paragraph 447; T 7-33, line 35.
[417] T 16-19, line 37 to T 16-20, line 12.
[418] T 16-23, line 37; T 16-24, line 31 and T 16-31, line 17.
[419] T 16-24, line 31 to T 16-27, line 34.
[420] T 16-31, line 40 to T 16-32, line 5.
[421] Exhibit 15, Joint Expert Report, Appendix GS-6, paragraph 18.
[423] Plaintiffs' Submissions on Defences, [220].
[424] Plaintiffs' Submissions on Defences, [180].
[425] Paragraph references are to the SFASC.
[427] SFASC 18(b), 31(b), 34(b), 64(b), 76, 83(b), 83(c), and 108(b).
[428] SFASC, 24(a), 24(b), 55, 57, 60(a), 73(a), 88, 91(f), 99(c), 105(b) and 105(c).
[430] FFAD, Attachment A, paragraphs 1(lc) and 1(ld).
[431] Plaintiffs' Submissions on Defences, [294].
[432] Exhibit 15, Joint Expert Report, paragraph 10.
[433] Exhibit 15, Joint Expert Report, pages 1-2.
[434] Exhibit 17, Report of Dr David Newton, dated 16 March 2018, page 17, [27].
[440] Exhibit 20, TB Vol 9, Tabs 422 and 437.
[441] T 3-48, lines 45-47; T 3-49, lines 1-4; T 3-59, lines 11-18.
[448] T 3-48, line 45 to T 3-49, line 4.
[452] T 3-72, line 23 to T 3-73, line 6.
[453] T 3-73, line 42 to T 3-74, line 19.
[455] Plaintiffs' Submissions on Defences, [326].
[461] Annexure A to FFAD, paragraph 2(b), (c), (e), (f) and (g).
[462] Annexure A to FFAD, paragraph 2(h).
[469] T 16-69, line 44 to T 16-70, line 34; Exhibit 3.
[477] T 17-34, line 44 to T 17-35, line 4.
[480] T 16-70, line 36 to T 16-71, line 3; T 16-75, line 29 to T 16-76, line 46.
[487] Plaintiffs' Submissions on Defences, [382]-[384].
[488] Paragraph references are to the SFASC.
[491] FFAD, paragraph 141(a)(vi) 1, 1A, 1B, 1C, 1D, 2, 3, 4, 6, 9, 10 and 11.
[492] Plaintiffs' Submissions on Defences, [393].
[494] T 16-63, line 42 to T 16-64, line 6.
[498] Plaintiffs' Submissions on Defences, [403].
[499] Exhibit 20, TB Vol 14, Tabs 647 to 651.
[501] Plaintiffs' Submissions on Defences, [413].
[502] Exhibit 40, Report of Reel Planning Pty Ltd, dated 29 November 2017, pages 11-13.
[503] Exhibit 42, Report of Schomburgk Planning Pty Ltd, dated 21 March 2018, page 4.
[504] Exhibit 42, Report of Schomburgk Planning Pty Ltd, dated 21 March 2018, page 5; IDAS stands for Integrated Development Assessment System.
[505] T 21-23, lines 37-39 and T 21-25, lines 3-7.
[506] Plaintiffs' Submissions on Defences, [431].
[508] [1980] HCA 1; (1980) 145 CLR 485 at 500.
[509] Stephen, Murphy and Wilson JJ; Gibbs and Aickin JJ dissenting.
[511] Exhibit 42, Report of Schomburgk Planning Pty Ltd, dated 21 March 2018, page 6.
[514] Plaintiffs' Submissions on Defences, [417]; T 2-25, lines 33-47.
[516] The defendants abandoned the substantial truth defence in respect of paragraph 63(b) in amended Annexure A to the defendants' written submissions. The defence of substantial truth was abandoned in respect of imputation 63(c) in an amended version of the defence filed on 28 February 2017.
[524] Plaintiffs' Submissions on Defences, [449].
[527] Plaintiffs' Submissions on Defences, [576]; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 526; Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380.
[528] Plaintiffs' Submissions on Defences, [577]; Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 at 336337, [18][19].
[529] Plaintiffs' Submissions on Defences, [578]; Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263 at [30].
[530] Plaintiffs' Submissions on Defences, [579]; Curistan v Times Newspapers Ltd [2008] EWCA Civ 432 at [36], [51].
[533] Plaintiffs' Submissions on Defences, [583].
[535] Exhibit 20, TB Vol 12, Tab 513, page 645, line 32 to page 646, line 10.
[537] FFAD, paragraph 140C(a)(i) and (ii).
[539] Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77, [97]; Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329; (2015) 91 NSWLR 341 at [42], [46]-[47]; John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205.
[540] Plaintiffs' Submissions on Defences, [605] citing John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484, [188].
[546] [2014] NSWSC 1674 at [100], quoted in Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [72].
[547] This is a reference to section 3(d) of the Act which identifies one of the objects of the Act as being to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter. Section 18 falls within Part 3 Division 1 of the Act which deals with resolution of civil disputes without litigation.
[548] [2016] NSWCA 283 at [73]- [74].
[549] Defendants' Outline of Argument - Part 2, [445].
[550] Plaintiffs' Supplementary Submissions, [33].
[551] Sweet & Maxwell, 2nd ed, 1923, at page 199.
[552] Plaintiffs' Supplementary Submissions, [34].
[553] Plaintiffs' Supplementary Submissions, [36].
[554] Defendants' Outline of Argument - Part 2, [445(c)].
[556] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 60 per Mason CJ, Deane, Dawson and Gaudron JJ; Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 at [25] per Applegarth J.
[557] [2017] VSC 521 at [59](a)-(g).
[558] Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9 at [89]- [91] per McClellan CJ at CL; Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327; Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1071 per Lord Hailsham of St Marylebone LC.
[559] Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 237 FCR 33 at 113, [446]; Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 at 195 per Mahoney A-CJ, applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 at [3] per Giles JA.
[560] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 61 per Mason CJ, Deane, Dawson and Gaudron JJ.
[561] Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 at 194 per Mahoney A-CJ.
[562] The reference to "the harm sustained by the plaintiff" in s 34 of the Act comprehends the range of harms to the plaintiff which, at common law, the three purposes seek to compensate: Cerutti v Crestside Pty Ltd [2014] QCA 33 at [27]; Robert v Prendergast [2013] QCA 47; [2014] 1 Qd R 357 at [23].
[563] Ley v Hamilton (1935) 153 LT 384 at 386 per Lord Atkin; Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 at 193-5 per Mahoney A-CJ, and at 198 per Handley JA; Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1071 per Lord Hailsham of St Marylebone LC; Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 at 416 [88] per Gummow J; Prendergast v Roberts [2012] QSC 144 at [31] per Mullins J.
[564] Belbin v Lower Murray Urban & Rural Water Corporation [2012] VSC 535 at [217] per Kaye J.
[565] Ley v Hamilton (1935) 153 LT 384 at 386 per Lord Atkin.
[566] Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 at 194-5 per Mahoney A-CJ.
[567] Belbin v Lower Murray Urban & Rural Water Corporation [2012] VSC 535 at [242] per Kaye J.
[568] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 71.
[569] SFASC, paragraph 114(a) and (b).
[570] TFAR, paragraph 74(a), (b), (d), (e), (f) and (g).
[573] Plaintiffs' Submissions, [852]-[862] and [880]-[888].
[574] [1951] HCA 23; (1951) 82 CLR 497 at 514
[575] [1993] HCA 31; (1993) 178 CLR 44 at 71.
[576] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 72.
[577] Plaintiffs' Further Supplementary Submissions, [7].
[578] Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 at [40].
[579] Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 237 FCR 33 at 114, [446(g)] where White J refers to Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653 for the proposition that "conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused".
[580] Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 237 FCR 33 at 114 [446(h)].
[581] Wilson v Bauer Media Pty Ltd [2017] VSC 521 at [59(h)] citing Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104; (2014) 43 VR 348 at 392, [116].
[583] The transcripts of the 53 broadcasts are Exhibit 20, TB Vol 3, Tab 156 to Vol 4, Tab 213, and Exhibits 24-28. A summary of the 53 broadcasts are an attachment to the Plaintiffs' Submissions.
[584] See [739] above and the reference to Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 71.
[585] Defendants' Outline of Argument - Part 2, [440].
[589] [2005] EWHC 262 (QB) at [24] and [27]. These statements of Gray J are equally applicable to previous publications as they are to subsequent publications.
[590] Gatley on Libel and Slander, 12th ed, at 32.57.
[591] Pearson v Lemaitre (1843) 5 M. & Gr. 700 at 719-720.
[592] James Edelman, a Justice of the High Court of Australia, McGregor on Damages, Sweet & Maxwell, 20th ed, at 46-048 and 46-049.
[593] Defendants' Outline of Argument - Part 2, [440].
[594] Attorney-General (Qld), "Defamation Act 2005 - declaration under section 35(3)" in Queensland Government Gazette, No 19, 25 May 2018 at page 202.
[598] Wilson v Bauer Media Pty Ltd [2017] VSC 521 at [76]- [77].
[599] Rayney v The State of Western Australia [No 9] [2017] WASC 367 at [848 - [855].
[600] [2018] VSCA 154 per Tate, Beach and Ashley JJA.
[601] Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 at [243]- [244].
[602] [2018] VSCA 154 at [249]- [250].
[603] Defendants' Supplementary Outline, [27].
[604] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151-152, [135] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ.
[605] Hallam v Ross (No 2) [2012] QSC 407 at [15] and Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784 at [29].
[619] Plaintiffs' Submissions, [711]-[715].
[621] Exhibit 44, Tab 2(d), email dated 23 April 2018, 4.15 pm.
[637] T 4-77, line 34 to T 4-78, line 36.
[644] T 10-54, line 44 to T 10-55, line 2.
[648] Plaintiffs' Submissions, [832] citing Ley v Hamilton (1935) 153 LT 384 at 386.
[650] T 1-65, lines 14-15 and T 3-39, lines 38-46.
[651] Ley v Hamilton (1935) 153 LT 384 at 386 per Lord Atkin; Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1071; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 416, [88].
[653] Citing Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 at 194-5 per Mahoney ACJ.
[654] Plaintiffs' Submissions, [681].
[655] T 4-69, line 26 to T 4-70, line 7; see also the evidence of Denis Wagner, T 2-73, line 25; and Joe Wagner, T 10-21, line 35 to T 10-22, line 11.
[661] T 2-84, lines 23-25 and T 3-4, lines 11-14.
[663] T 2-79, line 25 to T 2-80, line 26.
[693] Exhibit 6, Wagners' Media Release, 22 November 2017.
[695] T 23-19 lines 5-31; Plaintiffs' Submissions in Reply, [456].
[700] T 12-13, line 45 to T 12-14, line 6.
[703] T 14-59, line 16; Defendants' Supplementary Outline, [3].
[721] T 12-16, line 35 to T 12-17, line 14; Plaintiffs' Submissions in Reply, [512]; Exhibit 20, TB Vol 10, Tab 487 (Email from Amanda Gearing to Alan Jones, dated 29 July 2015).
[732] Exhibit 20, TB Vol 16, Tab 713, page 3.
[734] Plaintiffs' Submissions in Reply, [488].
[735] T 13-28, lines 4-14; T13-31, lines 26-35.
[737] T 13-30, line 36; T 13-31, lines 20-22.
[739] Defendants' Supplementary Outline, [6].
[741] T 12-37, lines 33-43; Exhibit 20, TB Vol 14, Tab 670.
[746] T 12-40, lines 30-46 and T 12-42, line 3.
[747] Plaintiffs' Submissions, [845].
[749] Plaintiffs' Submissions, [834].
[753] T 12-55, lines 1-28, T 12-55, lines 33-35 and T 12-56, lines 1-5.
[754] T 14-72, line 42 to T 14-73, line 5.
[756] Plaintiffs' Submissions, [854]-[855].
[759] [2018] VCSA 154 at [103] and [105].
[760] Plaintiffs' Submissions, [856].
[761] Plaintiffs' Submissions, [856].
[763] T 12-99, lines 4-14; T 14-59, line 43 to T 14-60, line 3.
[767] T 12-98, line 46 to T 12-99, lines 1-2.
[768] T 12-58, lines 1-3; T 14-62, lines 4-10.
[769] T 12-98, lines 15-19; T 12-99, lines 41-47.
[770] T 12-105, lines 33-35; T 14-13, lines 20-21.
[772] Exhibit 20, TB Vol 1, Tab 24 (the Twenty-Fifth Matter).
[773] Exhibit 20, TB Vol 3, Tab 153 (broadcast of 9 October 2015); Plaintiffs' Submissions, [857].
[774] T 12-92, line 34 to T 12-93, line 2.
[778] The transcript of this broadcast is Exhibit 25.
[785] Exhibit 20, TB Vol 20, Tab 1079.
[786] Exhibit 20, TB Vol 20, Tab 1080.
[787] Exhibit 20, TB Vol 20, Tab 1081.
[790] Plaintiffs' Submissions, [887].
[796] T 13-44, lines 45-47 and T 13-50, lines 36-37.
[797] T 13-50, lines 26-29; Defendants' Supplementary Outline, [10].
[798] T 17-8, line 35 to T 17-9, line 17 and T 17-6 line 29 to T 17-7, line 12.
[802] T 17-12, lines 27-37; see generally Plaintiffs' Submissions, [863]-[866].
[804] T 19-44, line 29 to T 19-45, line 2.
[808] T 19-47, line 38 to T 19-48, line 12.
[809] T 19-58, lines 5-11; see generally Plaintiffs' Submissions, [868]-[870].
[810] T 20-9 to T 20-15 (Neill Wagner); T 19-31 to T 19-36 (Joe Wagner); Plaintiffs' Submissions, [871]-[879].
[811] Plaintiffs' Submissions, [889].
[812] FFAD, paragraph 149(d) and (e). By way of mitigation the defendant also relied on the substantial truth of the imputations conveyed or the contextual meanings as were proved to be true. As neither the substantial truth defence nor the contextual truth defence have been established, this does not constitute a matter of mitigation.
[815] Plaintiffs' Supplementary Submissions, [3], citing Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 99.
[816] Plaintiffs' Supplementary Submissions, [5]-[7].
[817] (1965) 66 SR (NSW) 223 at 229-230.
[819] T 23-13, lines 29-35; Plaintiffs' Supplementary Submissions, [9].
[823] Exhibit 20, TB Vol 3, Tab 152, page 100, paragraph 6.
[825] Plaintiffs' Supplementary Submissions, [12].
[826] Plaintiffs' Supplementary Submissions, [19].
[827] Plaintiffs' Supplementary Submissions, [16(a)] and [16(b)].
[829] T 23-18, line 46 to T 23-19, line 3.
[830] The award in Wilson of $650,000 was altered on appeal to $600,000: Bauer Media Pty Ltd v Wilson [2018] VSCA 154 at [260]. At [255] the Victorian Court of Appeal noted that Ms Wilson sought general damages including aggravated damages in the sum of $1,200,000.
[831] Rayney v The State of Western Australia [No 9] [2017] WASC 367 at [837] per Chaney J, citing Cassell & Co Ltd v Broome (No 1) [1972] UKHL 3; [1972] AC 1027 at 1071.
[832] Rayney v The State of Western Australia [No 9] [2017] WASC 367 at [909].
[833] [2017] VSC 521 at [8]- [15].
[834] [2017] VSC 521 at [60]- [61], [136], [140], [314].
[835] Plaintiffs' Submissions, [893].
[836] [2017] VSC 521 at [337]- [338].
[837] [2017] VSC 521 at [337].
[845] Plaintiffs' Submissions, [898].
[846] Plaintiffs' Supplementary Submissions, [28(f)].
[847] Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 at [92]; Plaintiffs' Supplementary Submissions, [38]; T 23-7, lines 1-2.
[849] Plaintiffs' Submissions, [899].
Wagner & Ors
Harbour Radio Pty Ltd & Ors [2018] QSC 201
(1998) 43 NSWLR 158
(1993) 177 CLR 485
(1993) 178 CLR 44
(1998) 193 CLR 519
(1918) 25 CLR 234
(1990) 21 NSWLR 135
(2015) 91 NSWLR 341
(2007) 230 CLR 89
(2005) 79 ALJR 1716
(2015) 237 FCR 33
(2015) 332 ALR 257
(1937) 58 CLR 416
(2007) 70 NSWLR 484
(2003) 77 ALJR 1657
(1963) 37 ALJR 324
(1934) 51 CLR 276
(2001) 52 NSWLR 705
(1982) 149 CLR 293
(2000) 175 ALR 15
(1980) 145 CLR 485
(2009) 238 CLR 460
(2003) 216 CLR 327
(1951) 82 CLR 497
(1928) 41 CLR 331
(2016) 92 NSWLR 570
(2000) 1 VR 667
(2003) 9 VR 1
(2011) 81 NSWLR 157
(1996) 41 NSWLR 176
(2001) 208 CLR 388
(2014) 43 VR 348
[20] On 10 January 2011, significant flooding occurred in the Lockyer Valley. A comparison of historical event hydrographs shows that the January 2011 flood was an exceptional event. The peak flood level at Helidon was about five metres higher than any other historical flood since 1974 and the rate of rise was at least four times faster.[27] The flooding in and around Grantham on 10 January 2011 was significantly different from previous floods. Many eyewitness reports describe rapidly rising floodwater. The flooding in Grantham resulted in 12 people, including young children, tragically losing their lives through drowning ("the Grantham Flood event").
[21] At the time of the Grantham Flood event Mr Cater was the acting editor of The Australian. He made a number of visits to Grantham after the January 2011 floods. He subsequently visited Grantham six times between late 2013 and 2015.[28] On these visits, he spoke to a number of local residents who had witnessed the Grantham Flood event.
[22] Mr Jones became involved in the flood relief effort in Queensland shortly after 10 January 2011. During this period he was contacted by a number of Grantham residents who were present at the Grantham Flood event. Mr Jones was born and raised in the Toowoomba region and feels a particular affinity with the area.[29]
[23] The Grantham Flood event occurred in the context of wider disastrous flooding across Queensland. This led to the establishment, on 17 January 2011, of the Commission of Inquiry into the Queensland Floods of 2010-2011. Justice Holmes (as her Honour then was) was appointed as Commissioner to head the inquiry ("the Queensland Floods Inquiry").
[24] The Queensland Floods Inquiry engaged Dr Phillip Jordan, hydrologist, to undertake modelling and provide his opinion as to the role, if any, that the quarry played in the flooding in Grantham. Dr Jordan's second report concluded, and the Queensland Floods Inquiry accepted, that:
[25] The Grantham Flood event was the subject of a second Commission of Inquiry ("the Grantham Floods Inquiry"). On 11 May 2015, Walter Sofronoff QC (as his Honour then was) was appointed to investigate:
[26] Mr Sofronoff QC presented his report on 7 October 2015 after extensive public hearings, at which numerous residents of Grantham gave evidence of what they experienced in the course of the Grantham Flood event. Additionally, a number of experts in hydrology and hydraulics were called. The conclusions of the Grantham Floods Inquiry were relevantly as follows:
[27] It is necessary to refer to both the Queensland Floods Inquiry and the Grantham Floods Inquiry by way of background, because the findings of both Inquiries and the establishment of the Grantham Floods Inquiry were the subject of discussion by Mr Jones in a number of the matters complained of and by Mr Cater in the Eleventh Matter complained of.
[28] The 32 matters complained of broadly concern two subjects. The first is the role played by the quarry in the Grantham Flood event. The second is the legality and propriety of the approval processes undertaken by the plaintiffs in developing the airport at Wellcamp.
[35] In addition to these principles the plaintiffs emphasise three further points, each of which the plaintiffs submit assumes critical importance in the present case:
[50] The natural and ordinary meaning of the words used by Mr Jones is, in my view, sufficient to dispose of the identification issue. The plaintiffs, however, further rely on three pleaded notorious facts particularised in paragraph 11 of the second further amended statement of claim:
[63] I determine that the imputations conveyed by the Second Matter are that each of the first, second, third and fourth plaintiffs:
[64] There is no issue that the imputations conveyed are defamatory.
[83] The relevant part of the Fifth Matter complained of is as follows:
[87] One of the notorious facts relied on by the plaintiffs, namely that at the time of the fifth broadcast a further inquiry into the Grantham Flood event had been announced by the Queensland Government, is not correct. The Fifth Matter was broadcast on 24 February 2015. As at that date the Queensland Government had not announced a further inquiry. This did not occur until May 2015, as is evident from the broadcast on 6 May 2015, which is the Fourteenth Matter complained of.
[88] If a fact is notorious then the hypothetical referee, the ordinary reasonable listener, will be taken to know it.[75] The plaintiffs submit that it is not necessary to call evidence from a witness who had knowledge of those extrinsic facts because the only reasonable inference is that at least some of the listeners of the Fifth Matter must have knowledge of the earlier broadcasts.[76] The defendants submit that as no witness was called who knew the extrinsic facts and who understood the broadcast in the manner pleaded, the imputations were not conveyed. The defendants rely on Hough v London Express Newspaper Ltd.[77] In that case Goddard LJ identified the question of law that arose in the following terms:
[110] Mr Jones concludes the broadcast by informing his listeners that he will be returning to this subject. Mr Jones commences the broadcast in a relatively quiet voice and employs a stronger and more indignant tone as the broadcast progresses.[88] The general topic of the broadcast is a cover-up of the Grantham Flood event in which, according to Mr Jones, 13 people lost their lives, with 10 officially dead and three never found. Mr Jones is mistaken as to the number of people who lost their lives as a result of this tragedy.
[111] As to imputation (a), Mr Jones uses similar, if not more emphatic language as was used in the Third Matter complained of. For the same reasons, I find that imputation (a), rather than the alternative imputation (aa), was conveyed. While the listener is not told who constructed the dam wall, Mr Jones creates the impression that there is little doubt it was the Wagners. The dam wall is described by Mr Jones as being a "man-made" construction which, in Mr Warburton's opinion, was illegally constructed.[89] I do not accept the defendants' submission that any implication drawn by the listener that the plaintiffs were the cause of deaths by their actions at the quarry would be speculative at best.[90] Mr Jones, by linking the construction of the man-made wall to the Wagners pleasing themselves, doing what they like and not worrying about anything, invites the listener to infer that it is this wall constructed by the Wagners which resulted in the deaths of 13 people. The drawing of this inference does not require the listener to speculate. Even if the listener were to speculate as submitted by the defendants, Mr Jones, by the words used, invites such conjecture and is liable for conclusions that an ordinary reasonable listener may reach as a result of that invitation.[91]
[112] As to imputation (b), the plaintiffs submit that the meaning arises from the words used by Mr Jones quoted above: "Wagner Quarry, Wagner of the Wellcamp Airport, please yourself, get your own way, do what you like, don't worry about anything."[92] The defendants submit that this imputation depends on at least two conditions in order to arise - first, an assertion that the plaintiffs had a legal and moral responsibility for the deaths in Grantham, and secondly, that, callously and selfishly, they were unconcerned (in that they did not worry) about that fact. According to the defendants, it is not at all apparent where either condition could come from in the context of this broadcast.[93] In the relevant passage, Mr Jones informs the listener of what Mr Warburton had said to him, namely that "the violence and the destruction that water caused was the result of a man-made construction in a designated water course". Mr Jones repeats the words "man-made". It is in the context of the man-made wall causing the violence and destruction that Mr Jones refers to the Wagners in such pejorative terms. What is conveyed by the broadcast to the ordinary reasonable listener is that the Wagners were unconcerned as to what may result from constructing a dam wall in a designated watercourse. Being unconcerned as to the possible effects of a man-made wall being constructed in a watercourse is quite a different meaning to being unconcerned about one's legal and moral responsibility for the collapse of the wall resulting in the deaths of people in the Grantham Flood event. The passage of the broadcast relied on by the plaintiffs does not, in my view, convey imputation (b). The pejorative words used by Mr Jones relate to the construction of the wall rather than to the alleged actual results of its collapse.
[113] As to imputation (c), Mr Jones in the course of the broadcast makes numerous references to a cover-up. This is in the context where a meaning conveyed by the broadcast is that each of the plaintiffs caused the deaths of 13 people by illegally constructing a dam wall across Lockyer Creek which collapsed, releasing a tsunami-like wall of water that engulfed Grantham. The use of the words "complete cover-up", "massive cover-up", and "cover-up from day one" all invite the listener to speculate as to what was being covered up. I accept the plaintiffs' submission that the listeners are, in substance, told what is being covered up, namely "Wagner's dam and its effect" at Grantham, which Mr Jones had already told listeners caused the tragedy. While Mr Jones does not identify who is involved in the cover-up, it may be accepted that the ordinary reasonable listener would have understood it to include, at least, the Wagners.[94]
[114] As to imputation (d), the reference should be to the Queensland Floods Inquiry rather than to the Grantham Floods Inquiry. The words of the broadcast which give rise to this imputation are similar to those used by Mr Jones in the Second Matter complained of. For the same reasons expressed at [61] to [62] above, this imputation was conveyed.
[115] I determine that the imputations carried by the Seventh Matter are that each of the first, second, third and fourth plaintiffs:
[116] 2GB and Mr Jones admit that if these imputations are conveyed they are defamatory.
[125] Imputation (b) is not conveyed.
[126] I therefore determine that the following imputation was conveyed by the Eighth Matter complained of:
[127] The defendants submit that this imputation is not defamatory, because the focus of the meaning is not a personal attribute or condition, but a reflection upon something that happened at premises owned or operated by the plaintiffs, and with no blame attributed to them. A person would not think less of or shun or avoid a person simply because it has been noted that an event (however tragic) originated from their premises.[99] This submission does not take into account the emphasis given by Mr Jones to the words "the Wagners sand plant quarry" and "dam wall" and "man made construction in a designated water course". When listened to as a whole, the broadcast conveys that it was the collapse of a man-made wall in a designated watercourse at the plaintiffs' quarry which caused the deaths of 12 people. This in turn conveys that the Wagners are to blame. Such blameworthiness for the deaths of 12 people would cause people to think less of or shun or avoid each of the plaintiffs. Imputation (a) is defamatory.
[128] In respect of imputation (a) (and similar imputations conveyed by earlier broadcasts), the defendants accept[100] that from the Ninth Matter complained of, this imputation is more readily conveyed by most of the relevant broadcasts.[101] Mr Jones, from the ninth broadcast, becomes more specific and focussed in the accusations he makes against the plaintiffs in relation to the Grantham Flood event.
[152] As to imputation (d), the defendants question why the plaintiffs describe the lie as "disgraceful":
[165] As to imputation (b), the defendants suggest that the pleaded imputation seeks to enjoin two concepts - the building of the airport in disregard of the interests of the community, with the failure to obtain a range of impact statements and pay compensation, in circumstances where these matters in the broadcast are separated.[111] The mere fact that these references are separated is not, in my view, relevant to whether the imputation is conveyed. The "two concepts" as suggested by the defendants are connected in the broadcast by subject matter, namely the building of the airport. Given the commonality of subject matter, the words spoken by Mr Jones would have conveyed to an ordinary reasonable listener imputation (b).
[166] As against 2GB and Mr Jones, imputations (c), (d) and (e) are conveyed for the reasons given above in relation to the Tenth Matter complained of.[112] The imputations are conveyed by the words spoken by Mr Jones. Imputation (c) is conveyed by the following words:
[167] From these words, an ordinary reasonable listener would gain the impression that it was the Wagners who constructed a massive wall at their quarry, the collapse of which caused the Grantham Flood event.
[168] As to imputation (d), it is conveyed by the following words spoken by Mr Jones:
[169] As to imputation (e), it is conveyed by the following words spoken by Mr Jones:
[170] Mr Jones does not directly tell the listener what is being covered up or who is doing the covering up. In my view, however, an ordinary reasonable listener would readily infer, with all the derogatory comments made by Mr Jones about the Wagners, that they, at least, are involved in a cover-up of their culpability for the deaths of 12 people. Mr Jones refers to the residents of Grantham "at long last" achieving justice, in the context of a class action against the Wagners, the same people who, according to Mr Jones, have lied about the massive wall being man-made.
[171] I determine that as against 2GB and Mr Jones, the Eleventh Matter complained of conveys each of the five pleaded imputations. 2GB and Mr Jones admit that, if conveyed, imputations (a), (b), (d) and (e) are defamatory. For reasons given above, I do not accept the defendants' submission that imputation (c) is not defamatory. Each of the five imputations is defamatory of each of the plaintiffs.
[188] Third, the plaintiffs' submission that Mr Cater's use of the words "all the evidence points as you just said to the wall at the quarry that collapsed" shows that Mr Cater is explicitly agreeing with Mr Jones' previous remarks should be rejected.[125] The words used by Mr Cater are, in my view, equivocal. Mr Cater's reference to "all the evidence" may include Mr Jones' reference to the DHI report and to Mr Cater's own analysis of eyewitness accounts, photographs and video evidence. It is not apparent, however, that Mr Cater's words convey that he is agreeing with everything previously stated by Mr Jones. In particular, Mr Cater's words do not, either expressly or by implication, adopt or acquiesce in Mr Jones' derogatory references to the Wagners, nor to his factual assertion that it was the Wagners who created the wall. Mr Jones refers to the creation of a wall around the Grantham sand quarry as "typically Wagners". The words spoken by Mr Cater are, in my view, too equivocal to constitute an adoption by him of Mr Jones' accusation that it was the Wagners who constructed the quarry wall, the collapse of which caused the deaths of 12 people.
[189] Fourth, as correctly submitted by the defendants, in order for Mr Cater to be liable in respect of imputation (c) as derived from the words of Mr Jones, a finding must be made that Mr Cater armed Mr Jones with the libel or had requested Mr Jones to publish the libel.[126] For Mr Cater to be liable, it is not sufficient that he did not distance himself from Mr Jones' statements inferring that the Wagners were to blame. Mr Cater by his words does not, in my view, concur or assent to Mr Jones' words implying that the plaintiffs were to blame.
[190] Fifth, the five matters submitted by the plaintiffs as demonstrating that Mr Cater conduced to the publication by 2GB and Mr Jones which conveyed imputation (c) fall well short of establishing this proposition. In none of the correspondence or statements made by Mr Cater to Mr Jones does Mr Cater seek to blame the Wagners for the construction of the wall at the quarry, let alone the deaths of 12 people. In the three pieces of correspondence relied on by the plaintiffs, it is only in the letter of 14 October 2014[127] that Mr Cater makes any reference to the Wagners. In the last paragraph of the first page of this letter he refers to the "Grantham quarry". At the third page Mr Cater makes reference to "a crudely constructed levee, three to five metres high" which "now stretched for 380 metres on the western boundary of Wagner's Quarry". The other reference in this letter to the Wagners is in the context of Dr Phillip Jordan's site inspection of the quarry on 5 April being complicated by the fact that much of the debris had been removed, that "Wagners" had already begun repairing the gap in the wall, and that other alterations had been made to the landscape. Similarly, nothing said by Mr Cater in the broadcast constituting the Third Matter complained of sought to blame the plaintiffs for constructing the wall and causing the flood disaster. To the contrary, in the passage from this broadcast relied on by the plaintiffs, when Mr Jones seeks to draw a connection between the Wagners and Sinclair Knight Merz, Mr Cater cautions Mr Jones as follows:
[205] Mr Jones asked Mr Warburton a number of leading questions:
[206] It is in issue whether the Fourteenth Matter, published by 2GB and Mr Jones, is of and concerning the plaintiffs. For reasons given at [47] to [50] above, I am of the view that the Fourteenth Matter is of and concerning the plaintiffs. Mr Jones' reference to Wagner's quarry, which are words he emphasises, would be understood by the ordinary reasonable listener as a reference to the plaintiffs. In the course of the broadcast Mr Jones makes numerous references which would readily be understood as references to people, rather than to a corporation or a business. These include Mr Jones asking the rhetorical question "Who are they covering up for?" and his references to "them running for cover ... no doubt for the shredding machines" and to "naming the shredders". I accept that these are all references to people.[135] The ordinary reasonable listener, hearing these words, would think that Mr Jones is identifying the owners of the "Grantham quarry", namely the plaintiffs.[136] Mr Jones also makes reference to "Wagner's dam" in the context of having quoted Mr Warburton about "the bullying and intimidation" which he describes as "disgusting".
[207] It is in issue whether the imputations are conveyed. The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
[212] The impression given to the ordinary reasonable listener is that the true cause of the deaths of people at Grantham was a man-made construction at the Wagner quarry, referred to as "Wagner's dam", which collapsed. This is in circumstances where the previous government had failed to do anything about the Grantham Flood event because of a cover-up. When Mr Jones asks the listener, "Who are they covering up for?" a listener may readily infer that the previous government was covering up for the owners of the quarry, the plaintiffs. While Mr Jones does not identify who built the man-made construction, an ordinary reasonable listener would infer that it was the Wagners. Mr Jones does not suggest that the quarry was owned by anyone other than the Wagners.
[213] Imputation (a) is conveyed.
[214] As to imputation (b), the defendants submit that there is no suggestion the plaintiffs had anything to hide, or ought to be motivated to participate in a cover-up, let alone that they have in fact participated.[140] I do not accept this submission. Mr Jones' references to people running for cover and shredding machines would be readily understood by an ordinary reasonable listener as a reference to those responsible for the flooding. The broadcast generally conveys that the real cause of the Grantham Flood event had not been previously investigated because of a cover-up. What was being covered up was the true cause of the Grantham floods which, as stated by Mr Jones in the broadcast, resulted in 12 people losing their lives. Mr Jones, by posing the question "Who are they covering up for?", invites the listener to speculate. Such speculation in the context of this broadcast inferentially identifies the Wagners as being the subject of the cover-up.
[215] Imputation (b) is conveyed.
[216] As to imputation (c), for reasons previously given, this imputation is also conveyed.[141]
[217] I determine that the Fourteenth Matter complained of was of and concerning the plaintiffs. The Fourteenth Matter meant and was understood to mean that each of the first, second, third and fourth plaintiffs:
[218] 2GB and Mr Jones admit that, if conveyed, imputations (b) and (c) are defamatory. For reasons previously stated, imputation (a) is also defamatory. I determine that each of the imputations conveyed are defamatory of each of the plaintiffs.
[224] The defendants further submit that the natural and ordinary meaning of the words do not convey that each of the plaintiffs conspired with the two named politicians. This is because, critically, Mr Jones does not state who said the words "be careful, the judge they've appointed in this has got it in for us". According to the defendants, this is important because Mr Jones at no point says that there is any agreement with, or acquiescence to, the proposal that then follows, that each party would need to look after the other. A listener would not therefore be likely to conclude that the broadcast actually meant that there was a conspiracy.[146] I do not accept this submission. While Mr Jones does not identify which person said which words, there is simply no reason why the ordinary reasonable listener would think that Mr Wagner did not, himself, say the words "we need to cover each other's backs in this, you look after us and we'll look after you" or acquiesce to that suggestion. The word "conspired" as used by the plaintiffs in the imputation would not be understood by the ordinary reasonable listener in a strict legal sense. A common meaning of the word "conspire" is "to agree". The imputation is conveyed.
[225] 2GB and Mr Jones admit that, if conveyed, the imputation is defamatory of each of the plaintiffs.
[226] The defendants do not seek to defend this defamatory imputation. As discussed below in relation to damages, I consider this imputation to be very serious.
[239] As to imputation (a), the defendants submit that, at most, the Wagners might be potential beneficiaries of the cover-up but not participants in any cover-up. This submission ignores that Mr Jones impliedly identifies that the cover-up is for "Wagner and co". The message conveyed to the ordinary reasonable listener is that there has in fact been a coverup by two governments and that the plaintiffs are somehow involved.[149]
[240] I accept the plaintiffs' submission that it is obvious from the content of the broadcast, and its tone, that Mr Jones is inviting the listener to adopt a suspicious approach. He does so by repeatedly referring to cover-ups, speaking in the most general terms of criminal behaviours, and posing questions about whether the plaintiffs, "Wagner and co", are being protected. He also asserts that there were various people involved in this coverup and invites the listener to conclude that the cover-up was to protect "Wagner and co". Necessarily the message means that "Wagner and co" are involved in the coverup.[150] That the cover-up involved the plaintiffs "criminally" conspiring over a period of four years is conveyed by Mr Jones implying that two successive governments have been involved in the cover-up.
[241] Mr Jones makes a number of references to crimes. He states:
[242] Mr Jones' references to the "first crime" would convey to an ordinary reasonable listener that the cover-up of Grantham is the second crime. The length of the criminal conspiracy being four years is conveyed by the following words:
[243] Imputation (a) was conveyed.
[244] As to imputation (b), the defendants complain about the complexity of the pleaded meaning:
[257] As to imputations 64(a) and (b), these are said to be conveyed both by the natural and ordinary meaning of the words of the broadcast and the pleaded extrinsic facts. The relevant words of the broadcast are:
[270] 2GB and Mr Jones admit that, if conveyed, the imputations are defamatory of each of the plaintiffs.
[271] I determine that the Twentieth Matter conveyed imputations that each of the first, second, third and fourth plaintiffs:
[272] Each of these imputations is defamatory of the plaintiffs.
[298] As to imputations (b), (c) and (d), the plaintiffs submit that they are conveyed by the following three passages:
[299] The plaintiffs submit that even though Mr Jones describes the assertion that overburden created a wall alongside the quarry as an "argument", the clear impression he creates is that the Wagners have in fact created a wall alongside the quarry. Mr Jones achieves this by asserting, in a particular tone, that "Wagners have said it was part of the natural landscape". The tone used by Mr Jones, according to the plaintiffs, is important. It is derisive, sneering and sarcastic.[172] In listening to the broadcast it becomes apparent that Mr Jones conveys to the listener that what will be argued is true, and that what the Wagners say is false. The use of the word "argument", and the fact that Mr Jones does not expressly use the word "lie", does not alter the pleaded meanings which are conveyed to the ordinary reasonable listener.
[300] The defendants submit that imputation (d) does not arise because no cover-up is alleged, and no listener would conclude that the sale of the quarry would be designed to give effect to a cover-up, particularly when the purchaser, Boral, has not operated the quarry since.[173] This submission does not, however, give sufficient weight to the tone used by Mr Jones in the broadcast. Mr Jones asserts in a pejorative tone that, "Of course, Wagners couldn't wait to sell the quarry in the same years the floods". Additionally, by Mr Jones using the words "of course", the ordinary reasonable listener would infer that the reason the Wagners could not wait to sell the quarry was because "the weight of water collapsed the embankment and 12 people had no hope".
[301] Imputations (b), (c) and (d) are conveyed.
[302] There is no issue that, if conveyed, each of the imputations are defamatory.
[303] I therefore determine that the Twenty-Third Matter was of and concerning each of the plaintiffs. It conveyed imputations that each of the plaintiffs:
[315] As to imputations (b) and (c), the plaintiffs primarily rely on Mr Jones' references to Denis Wagner and his family "holding their breath". The plaintiffs submit that the only reason why Denis Wagner and his family would be holding their breath is because the Queensland Floods Inquiry in 2012, which found that the quarry did not contribute to the disaster, was wrong. According to the plaintiffs, the conclusion which the ordinary reasonable listener would have reached is that the plaintiffs were afraid that the cover-up would be exposed by the new Inquiry and a finding made that it was their quarry wall, and therefore them, which was responsible. This conclusion, as submitted by the plaintiffs, is an obvious one, not least because Mr Cater described the findings of the Queensland Floods Inquiry as "wrong" and "plainly ridiculous".
[316] For imputation (b) and (c) to be conveyed the ordinary reasonable listener would, in my view, be required to infer too much from Mr Jones' reference to Denis Wagner and his family holding their breath. As the broadcast makes no allegation about liability or culpability for the deaths of people in Grantham, the ordinary reasonable listener would not appreciate why Denis Wagner and his family would be holding their breath. The primary thrust of the broadcast is Mr Jones and Mr Cater recounting and commenting on the first day of the Grantham Floods Inquiry. The listener is informed by Mr Jones that the Commissioner, Mr Sofronoff QC, will hear submissions and provide written recommendations to the Queensland Premier by 31 August 2015. One of the matters to be investigated is how the Grantham quarry may have contributed to the flooding. An ordinary reasonable listener may have understood that Denis Wagner and his family would be holding their breath because the outcome of the Inquiry, which had just commenced, was unknown. While Mr Cater was suggesting the possible result of the Inquiry, he specifically states, "I'm not going to sort of preclude the judgment of Mr Sofronoff".
[317] I determine that the Twenty-Fourth Matter does not convey the pleaded imputations.
[322] A technique used by Mr Jones to create the impression that the Inquiry would find the Wagners culpable, is to be effusive in his praise of the witnesses and the Commissioner, which stands in stark contrast to his derogatory comments and tone he reserves for the Wagners. This technique is exemplified by the following statements:
[323] This praise by Mr Jones of the witnesses and the Commissioner is to be contrasted with what he says of the Wagners. I have already quoted at [321] above most of Mr Jones' references to the Wagners. There is one additional derogatory remark that Mr Jones makes: "Rumour has it of course that they [the Wagners] have problems with their airport, unable to make a quid."
[324] Mr Jones in using this technique invites the listener to unfavourably compare the Wagners to those giving evidence at the Inquiry. The listener is encouraged to view the Wagners negatively and to adopt a suspicious approach. This results in the likelihood that an ordinary reasonable listener would draw adverse inferences against the Wagners. One of these inferences is that the Wagners are "finished" because the Grantham Floods Inquiry will establish their culpability.
[325] I reject the defendants' submission that this broadcast is by and large a recitation of evidence given by witnesses the previous day at the Grantham Floods Inquiry, and that it would be understood by the ordinary reasonable listener in those terms and not as statements or assertions by Mr Jones about conclusions to be reached.[179] I also reject the assertion by the defendants that "no prejudgment was being offered".[180] Such an assertion ignores the tone and structure of the broadcast discussed above.
[326] Imputation (a) is conveyed. The references to Denis Wagner "covering his face" and the Wagners being "finished" imply that the plaintiffs are culpable for the Grantham Flood event. Although Mr Jones refers to "the bureaucrats and politicians who cover up", this is in the context of Grantham. He seeks to draw a distinction between "genuine heroes" and those involved in a cover-up. The derogatory references concerning the Wagners, as contrasted with Mr Jones' references to the witnesses, would lead the ordinary reasonable listener to readily infer that the Wagners are also involved in the cover-up.
[327] As to imputation (b), this imputation is also conveyed. The ordinary reasonable listener would have understood Mr Jones' references to the evidence of Mr Sippel, and Mr Jones' statement that everyone was saying the Wagners were "finished", to mean that the Wagners were culpable because Mr Sippel's evidence was "irrefutable and conclusive".[181] I accept the plaintiffs' submissions that, in context, the clear impression created by this broadcast is that the Wagners' responsibility for the deadly Grantham floods had been exposed.[182]
[328] Imputation (c) is conveyed by the ordinary and natural meaning of the words spoken by Mr Jones at the very end of the broadcast. In referring to the Wagners' new hydrology study, which admits that the quarry wall was a man-made structure, Mr Jones states: "... that deliberately contradicts everything that the Wagners have claimed since this happened; they've always said it was a natural feature of the landscape. ... It gets worse by the hour for that lot I can tell you." The impression created by these words in the mind of the ordinary reasonable listener is that the Wagners' previous claims about the quarry wall, which the listener has already been told was the cause of the flood, were lies. Mr Jones' use of the word "deliberately" and the words "It gets worse by the hour for that lot I can tell you" invite the listener to infer that the Wagners have done something wrong; that they have lied about the wall being part of the natural landscape, when it was in fact manmade.
[329] 2GB and Mr Jones admit that imputations (a) and (c) are defamatory of each of the plaintiffs. For reasons previously given I also find that imputation (b) is defamatory.
[330] I determine that the Twenty-Fifth Matter is of and concerning each of the plaintiffs. The Twenty-Fifth Matter conveyed that each of the first, second, third and fourth plaintiffs:
[331] Each of these imputations is defamatory of each of the plaintiffs.
[342] Again in his delivery of this broadcast Mr Jones conveys to the ordinary reasonable listener that the Grantham Floods Inquiry will find as a foregone conclusion that the Wagners are culpable.
[343] As to imputations 91(a) and (b), they arise from words similar to those used in the Sixth, Ninth, Tenth, Eleventh, Eighteenth, Twenty-First and Twenty-Third Matters. For the reasons given in relation to those matters, I find that imputations 91(a) and (b) are conveyed.
[344] As to imputations 91(c), (d) and (e), these imputations are in similar terms to imputations (b), (c) and (d) conveyed by the Twenty-Third Matter. For the same reasons, I find that imputations 91(c), (d) and (e) are conveyed. I note that the defendants submit that imputation 91(c) does not arise because Mr Jones, in repeating the accusation that the embankment collapsed resulting in the deaths of 12 people, states: "at least that's what's being alleged and being tested by this inquiry".[185] Having listened to the broadcast, I accept the plaintiffs' submission that these words are perfunctory and would be lost on the listener.[186] The broadcast as a whole conveys the clear impression that the Wagners are culpable and that such a finding by the Grantham Floods Inquiry is a foregone conclusion.
[345] As to imputation (f), the defendants submit that this imputation does not arise because there is no suggestion Mr Davis QC (as his Honour then was) had been given those instructions by the plaintiffs. The ordinary reasonable listener would not, therefore, infer that the manner in which questions are asked by a barrister during cross-examination is something directed by the client. The difficulty with this submission is that Mr Jones' reference to Mr Pinkerton being "bullied" by Mr Davis QC is recounted in the context of Grantham residents having "been bullied and intimidated for years", which constituted a "component of the cover-up". An ordinary reasonable listener would readily infer that the "bullying" of Mr Pinkerton in the course of cross-examination was a continuation of the Wagners' previous conduct and carried out pursuant to their instructions. Imputation 91(f) is conveyed.
[346] As to imputation 91(g), this is conveyed by Mr Jones stating: "Now, of course, these people have been bullied and intimidated for years, and that was the component of the cover-up. He was bullied yesterday, Mr Pinkerton, by the lawyer representing the Wagners, Peter Davis QC." Although earlier in the broadcast Mr Jones refers to "many, on both sides of politics, who wanted the cover-up to continue", he extends the nature of this cover-up to "protecting their mates" by quoting Mr Warburton. Further, by Mr Jones stating that "the bullying is still going on, of course, with the cross-examination" and referencing that to the cross-examination of witnesses by Senior Counsel for the Wagners, Mr Jones links years of previous bullying and intimidation with the Wagners' present conduct. Imputation 91(g) is conveyed.
[347] As to the imputation concerning Denis Wagner, this is conveyed by the following passage:
[358] There is no issue that, if conveyed, the imputations are defamatory.
[359] I determine that the Twenty-Eighth Matter conveyed the imputations that each of the first, second, third and fourth plaintiffs:
[360] In respect of the first plaintiff, Denis Wagner, the Twenty-Eighth Matter also conveyed the imputation that he engaged in a disgraceful and bizarre attempt to bully and intimidate a victim of the deadly Grantham flood, Ian Pinkerton, and to escape scrutiny for his culpability in causing the flood, by driving to Pinkerton's house after the Flood Inquiry had adjourned, getting out of his car, and standing and staring at Pinkerton's home. Each of these imputations is defamatory.
[365] After informing the listener that someone is not telling the truth Mr Jones proceeds to tell the listener of three matters, all of which, in my view, suggest to the listener that the person not telling the truth is Denis Wagner. First, Mr Jones retells the story about Mr Wagner standing and staring at Mr Pinkerton's house. He queries whether Denis Wagner will be questioned at the Inquiry about this incident. Irrespective, however, of any answers Mr Wagner may give, Mr Jones makes a factual assertion that "This is the Wagner tactic". Second, Mr Jones refers to the evidence of Patrick Gallagher, who first noticed the embankment wall increasing in size on the western side of the quarry in 2002. Mr Gallagher's evidence is that the wall was six metres high by 2005. Third, when Mr Jones refers to Denis Wagner giving evidence at the Inquiry that day, he gratuitously adds, "The evidence is mounting against him".
[366] The final matter which would suggest to the ordinary reasonable listener that the plaintiffs are culpable is Mr Jones' references to Denis Wagner being in "the dock" today and the previous witness, Mr McIntosh, becoming "the executioner".
[367] Imputations (a) and (b) are conveyed.
[368] 2GB and Mr Jones admit that if imputation (b) is conveyed, it is defamatory of each of the plaintiffs. They deny that imputation (a) is defamatory. For reasons previously given, I find that imputation (a) is defamatory of each of the plaintiffs.
[369] I determine that the Twenty-Ninth Matter conveyed that each of the first, second, third and fourth plaintiffs:
[370] The Twenty-Ninth Matter conveyed in respect of the first plaintiff, Denis Wagner, that he attempted to bully and intimidate a victim of the disastrous 2011 Grantham flood, Ian Pinkerton, by pulling up outside Pinkerton's house after he had given evidence to the Flood Inquiry, getting out of his car, and standing and staring at Pinkerton's home.
[371] Imputations (a) and (b) are defamatory of each of the first, second, third and fourth plaintiffs. The additional imputation conveyed is defamatory of the first plaintiff.
[379] Mr Jones further accuses the Wagners of causing a story to be published in the Toowoomba Chronicle suggesting that witnesses at the Inquiry had told false stories. As correctly submitted by the plaintiffs, the clear impression is that Mr Wagner is claiming that the people of Grantham, the victims of the flood, had told false stories. The ordinary reasonable listener would have understood the claim attributed to Mr Wagner as "shocking and unacceptable, or, disgraceful".[197] Mr Jones also suggests to the listener that Mr Wagner in his evidence was more concerned about the damage to his own business than the victims of the Grantham Flood event. He contrasts Mr Wagner's attitude with the death of one of the victims of the flood, Peter Van Straten, "after a long battle with terminal illness". He refers to Mr Van Straten as trying "to hang in and live long enough to see justice". The unfortunate story of Mr Van Straten would be contrasted by the ordinary reasonable listener with the attitude of the Wagner family, with Mr Jones asking his listening audience, "What kind of selfish, insensitive grubs are these people?"
[380] Imputation (a) is conveyed.
[381] Imputation (c) is conveyed by Mr Jones' reference to a cover-up. An ordinary reasonable listener would readily infer that the cover-up relates to the Wagners' culpability for the Grantham flood disaster. A listener would understand the reference to "mates" in "big business" as a reference to the Wagner family.
[382] Imputation (d) also arises from the statements of Mr Jones discussed above, in particular the statements made by Mr Jones outlined in the first two dot points of [377]. In addition the following statement of Mr Jones is relevant to determining that imputation (d) was conveyed:
[390] Mr Jones then refers to the evidence of the Channel 9 pilot who flew a helicopter over Grantham making a video "on that fateful day". He introduces this evidence by saying, "Yesterday was bombshell stuff". Mr Jones identifies this video as lasting only one minute, causing Mr Sofronoff QC to instruct a full search for the rest of the footage. Mr Jones then poses the question, "How come Channel Nine didn't have the full footage?" He continues:
[391] As to imputation (a), the defendants submit that it is not conveyed "because there is no definitive account of the role played by the quarry in the deaths of people in Grantham. Listeners are told that that was the subject of the Inquiry that was taking place. This was the opening passage of the broadcast and more likely therefore to have set the tone."[201] I do not accept this submission. The submission relies upon Mr Jones' opening words: "This Grantham Flood Commission of Inquiry is examining, as you know, whether a quarry caused or contributed to the January flood in 2011 that killed 12 people, the Wagner quarry." These words are not emphasised by Mr Jones and are delivered in what may be described as a flat tone. Although these words suggest that the outcome of the Inquiry is unknown, when listened to as a whole the delivery and content of the broadcast conveys to the ordinary reasonable listener that the Wagners' culpability, which has been the subject of a cover-up, will be exposed. In referring to the Channel 9 video, Mr Jones asserts that "it demonstrates what happened". He further asserts that the video demonstrates "what kind of cover up we're talking about" and that anyone who sees the video will know that an "awful injustice" has been done. In asking his listeners, "[W]hy were some people being protected?" Mr Jones invites the listener to speculate as to who was being protected. This is in the context of recounting Denis Wagner's evidence to the Inquiry. Mr Jones refers to the Channel 9 video as showing the quarry wall and that the video "makes it clear there's not a single doubt as to what happened at Grantham". He tells his listeners, "This is a scandal, make no mistake".
[392] As correctly submitted by the plaintiffs, the whole broadcast is sensational and insinuating in tone and invites a degree of loose thinking on the part of the ordinary reasonable listener. In such circumstances, the ordinary reasonable listener would have understood that the cover-up, which resulted in an awful injustice, must relate to the very matter being examined by the Inquiry: the role the Wagner quarry played in the Grantham Flood event.[202]
[393] Imputation (a) is conveyed.
[394] Imputation (b), which concerns the first plaintiff, is carried by the words in the first paragraph of the broadcast, which are similar to the words used by Mr Jones at the commencement of the Thirtieth Matter. The inference may be drawn that at least some of the audience listening to the Thirty-First Matter would have been aware that Denis Wagner had given evidence before the Grantham Floods Inquiry. For the reasons given above in relation to imputation (d) conveyed by the Thirtieth Matter, I find that imputation (b) was conveyed.
[395] I determine that the Thirty-First Matter conveyed in relation to each of the plaintiffs imputation (a). The Thirty-First Matter also conveyed imputation (b) in respect of the first plaintiff, Denis Wagner.
[396] 2GB and Mr Jones admit that, if conveyed, each of these imputations is defamatory of the relevant plaintiff.
[402] Mr Jones then introduces Amanda Gearing, who has made a comprehensive submission to the Grantham Floods Inquiry. The primary topic of his interview with Ms Gearing is this submission. Mr Jones informs the listener that in Ms Gearing's submission she refers to large sections of the remaining embankment of the northern side of the quarry being removed in May 2011. When asked by Mr Jones who removed these sections, Ms Gearing responds, "I'm assuming that that was by the people who owned the quarry at the time", to which Mr Jones replies, "Wagners".
[403] Ms Gearing then makes the following statement:
[405] As to imputation (b), the cover-up extends to removing large sections of the embankment "so that it could not be the subject of a hydrology report". This meaning is said to arise from the listener having been informed, earlier in the broadcast, that the Sinclair Knight Merz hydrology report commissioned by the Queensland Floods Inquiry had ignored the existence of a large embankment around the Grantham quarry and, in substance, the report had been "dismissed" on this basis. This extended meaning to imputation (b) is not, in my view, conveyed by the broadcast. What is conveyed is an imputation that each plaintiff attempted to cover up his culpability for causing the Grantham flood that killed 13 people on 10 January 2011 by removing large sections of an embankment on the northern side of his quarry in May 2011.
[406] For imputations (a), (b), (c) and (d), the plaintiffs also rely on the following exchange between Mr Jones and Ms Gearing:
[413] In respect of the first plaintiff, the Thirty-Second Matter conveyed the imputation that he, while giving evidence at the Grantham Floods Inquiry, was forced to admit that he had previously lied about the embankment at his quarry that exacerbated the 2011 Grantham flood being part of the natural landscape.
[429] As to imputation (b), Mr Jones' tone and delivery creates the clear impression that Dr Macintosh's evidence is not to be accepted. Mr Jones suggests that Dr Macintosh's report "didn't pass the sanity test". He expresses with convincing disbelief that the report "[c]leared the Wagner quarry of all responsibility for creating or exacerbating the devastating four to six metre surge, which killed 12 people". In spite of Dr Macintosh's finding, Mr Jones emphasises the following words: "But the fact is that Grantham had floods like this in the past - no one's ever died". He then refers to a concession by Dr Macintosh that the quarry embankments were responsible for raising Lockyer Creek water levels 20 centimetres for at least two kilometres. Mr Jones concludes the broadcast by stating: "Which makes me wonder how you reach the conclusion in the first place that it was the railway line not the levee bank. The inquiry continues." I accept the plaintiffs' submission that by asserting that Dr Macintosh is wrong and otherwise wholly discounting his thesis, Mr Jones is in fact saying, and would have been understood by the ordinary reasonable listener to be saying, that the Wagner quarry did create or exacerbate the four to six metre surge which killed 12 people.
[430] I find that the Thirty-Fourth Matter is of and concerning each of the plaintiffs and conveyed imputations (a) and (b).
[431] 2GB and Mr Jones admit that, if conveyed, both imputations are defamatory of each of the plaintiffs.
[436] As damage to reputation is presumed,[222] Senior Counsel for the defendants properly concedes that there must be an award of damages in the plaintiffs' favour, as these imputations are not sought to be defended. As is evident from the listed imputations in this category, they are very serious and warrant in themselves a substantial award of damages.
[454] The experts were instructed to specify the factual assumptions or matters of fact upon which their opinions were based.
[455] As to the first and primary issue, Dr Smart and Dr Maroulis disagree with Dr Newton. Their opinion is that the breaching of the bund at the Grantham quarry caused a surge in floodwaters between the quarry and Grantham causing the deaths of 12 people. In arriving at this opinion, none of the defendants' experts sought to create a calibrated flood model of the Grantham Flood event. Dr Smart and Dr Maroulis opine that the "evidence for a severe surge is found in the eye-witness and victim reports, flood signs in the aftermath, damage to buildings and infrastructure, video footage and computer modelling".[233] The reference to computer modelling is to the numerical modelling undertaken by Mr Dam, who did not purport to model the actual flood event.
[456] Mr Dam's numerical modelling stands in stark contrast to the modelling undertaken by Dr Newton. Dr Newton developed a two dimensional flood model of the Grantham Flood event which was calibrated to available flood data.[234] Dr Newton's opinion is that the breaching of the bund did not cause a surge in floodwaters between the quarry and Grantham sufficient to have any material effect on damage to property or risk to persons.[235] According to Dr Newton, the tragic events in Grantham on 10 January 2011 were inevitable based on the magnitude of the flood event in Lockyer Creek:[236]
[465] Dr Smart, in concluding that a surge from the breach of the bund caused the deaths of 12 people, relies on the following matters:
[466] According to Dr Smart, adding surge velocity to the flood velocity would create a wave speed consistent with the observations of eyewitnesses and his own observations of severe structural damage. He concludes:
[478] Dr Smart accepted that people lost their lives upstream of the quarry at Postman's Ridge, Spring Bluff and Murphy's Creek.[276] He also accepted that in his investigations he was aware of eyewitnesses upstream of the quarry describing waves of water and houses being washed away in moments.[277] None of these properties would have been affected by the quarry. Dr Smart's explanation for the deaths and property damage upstream of the quarry being in a different category to what occurred in Grantham is that Grantham is situated in a wider floodplain with less steep topography.[278] It became clear in the course of cross-examination, however, that in making this assertion Dr Smart had not done any hydrological calculations:
[512] Any potential prejudice to the plaintiffs by the late delivery of Mr Dam's third report was sought to be addressed by his evidence being delayed to 30 May 2018. The plaintiffs had his report in draft form from 10 May 2018. The plaintiffs do not identify any actual prejudice caused by the late delivery of the third report. As no actual prejudice is identified by the plaintiffs, I would not rule that the third report is inadmissible on this basis alone. Further, the defendants rely on rule 429A of the UCPR, which requires the provision of a supplementary report in circumstances where an expert changes in a material way an opinion in a report that has been disclosed. The third report is, in my view, a supplementary report contemplated by rule 429A.
[513] Mr Dam's three reports are not, however, admissible because they do not comply with rule 428(2)(e) in that they do not expose Mr Dam's reasons why he has adopted a particular opinion. His conclusions and opinions are expressed in the first report as follows:
[545] The calibration of a model is viewed as a critical and important stage of a model's development in Engineers Australia's Guideline, "Two Dimensional Modelling in Urban and Rural Floodplains".[351] Relevantly, ss 7.1 and 7.5 of the Guideline provide:
[550] The defendants criticise this exercise.[358] A range of the magnitude of 3,100m3/s and 5,400m3/s could, according to the defendants, hardly be a reliable one with a top figure being nearly 175 per cent of the lower. Dr Newton accepted that his exercise was uncertain.[359] The defendants assert that Dr Newton arrived at his Helidon Inflow of 4,600m3/s because "it produced the outcome that was sought. In other words, if 4,600m3/s is the proper figure to be adopted, it is only because the model needed it to be in order to produce the modelled outcomes - it thus became, a self-fulfilling prophecy."[360] Dr Newton's approach is also criticised on the basis that his adjustment for roughness because of scouring was not an exercise he undertook across the Grantham floodplain.
[551] Dr Newton should not be criticised for not accepting the DNRM peak Helidon Inflow of 3,640m3/s. Dr Smart agreed that the DNRM peak Helidon Inflow of 3,640m3/s was very unreliable.[361] As correctly submitted by the plaintiffs, there appears to be no disagreement between the experts that the actual water level at Helidon on 10 January 2011 was significantly higher than the highest ever gauged flow data. When the Helidon gauge failed on 10 January 2011, the last recorded gauge height was 10.857m at 2.40 pm that day. The estimated peak was 13.88m, more than four times the highest recorded level. Even accepting the DNRM estimate of 3,640 m3/s, it represents 33 times more than the previous highest flow record of 108m3/s.[362] Further, Dr Newton's alteration to roughness is supported by photographic evidence that the Lockyer Creek channel was stripped bare near the Helidon Gorge.[363]
[552] The assertion that the Helidon input of 4,600m3/s arrived at by Dr Newton is nothing more than a "self-fulfilling prophecy" fails to recognise that the use of this input results in a model that better matches the observed peak water levels and timing of initial inundation in Grantham. As explained by Dr Newton:
[562] Mr Sippel was also having telephone conversations with Mr Mallon, who informed him that he could see sections of the quarry filling with water. At 3.40 pm, Mr Sippel observed that the water in Lockyer Creek was rapidly rising, "getting quicker and quicker" and "then all of a sudden the water came over the embankment around my ankles". The water burst the banks of Lockyer Creek and commenced to run into the cow paddocks. At this stage Mr Sippel could see "water cascading like a waterfall sort of thing, trickling down that corner, and I could see it on the northern - north-western end sort of coming around the corner like there was something lying there, blocking it. Just like a little waterfall, like a wave, coming around the corner and down onto the batching area and starting to get quicker and quicker and higher and higher."[375]
[563] At around 3.49 pm, Mr Sippel decided to evacuate his family. He tried to drive his ute across the paddock but it bogged. His observation as to the water was:
[568] She then got into her vehicle and drove a short distance and saw "another wall of water coming down from the west". She observed that the water contained people's houses, washing machines, fridges, trees, including a 60 foot gum tree, and other debris.[380] She actually observed two walls of water, one coming from the creek and one coming from the west. Both contained similar debris. According to Ms Hylan, both waves met and went into a circular motion. Significantly, Ms Hylan described the northern most point of the wave as being "the other side of the railway line on the road".[381] What Ms Hylan described are two waves, one coming from Lockyer Creek and the other as far as the railway, containing similar debris. This evidence is more consistent with Ms Hylan observing extensive floodwaters from upstream of the quarry, rather than a surge emanating from the quarry. If one of the waves that she observed was as far north at the railway line to a point south of the quarry, it could not possibly be the result of the breaching of the bund, given its width.
[569] John (Sean) Gillespie lived at 1617 Gatton Helidon Road. Dr Smart does not rely on any statement made by Mr Gillespie to support his opinions. Mr Gillespie was at Helidon when the flood hit Grantham on 10 January 2011. He returned to his house just after 4.00 pm and stopped at Dinner Corner. Having walked down the railway line, he could see that the water was "dead still" and about halfway up the windows of his house.[382]
[570] Lisa Spierling lived with her husband and five children at 1384 Gatton Helidon Road. As Ms Spierling escaped from her house with her children she looked to the south and saw a long line of water (approximately two feet high) approaching rapidly from the south across the paddocks.[383] She took her children up to the railway track where the ground was higher. From this position she observed a family being pushed up against the railway fence by the water which was rising rapidly and carrying a lot of debris.[384] Having been alerted by one of her children, she observed a "wave coming at me and the children down the railway line".[385] She described it as "like you'd find at a beach. It literally was like a wave coming down the railway line."[386] This evidence is consistent with fast-flowing floodwater being channelled along the railway embankment. Her description of a wave does not support the existence of a surge, let alone a surge emanating from the quarry.
[571] Wilma Baukema lived with her husband at 44 Railway Street. She was awoken on the afternoon of 10 January 2011 by a noise which she described as being "like jet planes", which caused her to walk to the spare bedroom which looked south. She observed a river of dirty muddy water about a metre high moving from west to east, fast flowing.[387] She described this water as being "uniform in height".[388] She estimated that the water rose from ankle deep to about waist height in "only about 5, 10 minutes".[389] She describes leaving her house through a window at the back when a "big wave came, and the water rose rapidly till we were up to our necks in water, hanging from the gutters of the house". She stated the water was "moving very rapidly" and was "coming from both sides, and it was sort of boiling around us, but it was fairly calm".[390] Consistently with descriptions by other witnesses, she observed that the water was full of debris.
[572] Ms Baukema accepted that from the time she was hanging onto the gutter where the water was at waist height to the time it got to her shoulder was about 30 minutes. The water continued to rise to a certain point but then slowly receded.[391] The water did not, for example, rise and then drop down again and then rise again.
[573] Ms Baukema's description of what she observed is consistent with a rapid rise in floodwater.
[574] Francis King resided at 32 Railway Street with his wife and son. Dr Smart relied on two statements of Mr King. The first is an observation made by him in his statement dated 21 January 2011: "The water just got deeper and deeper and within the matter of seconds the water had gone from ankle height to chest deep ... The amazing part was the speed that the water flown and risen and the speed of it was like a car driving down the street." The second observation of Mr King is contained in a statement given to the Grantham Floods Inquiry dated 22 May 2015:
[592] Daniel McGuire lived next door to Mr and Mrs Arndt at 1346 Gatton Helidon Road with his wife and children. He was employed by the Rural Fire Service and had previously been a Volunteer Rural Fire Fighter for about 20 years. He had at his property one of the Rural Fire Service vehicles - Grantham 51. This was a four-tonne, Isuzu medium truck, approximately three metres high, four metres long, with approximately one metre of clearance to the ground.
[593] On the afternoon of 10 January 2011 Mr McGuire was called out to the front of his house by Mr Arndt who alerted him to the water coming from Lockyer Creek. He recalls seeing a house coming down the creek and they both immediately took action to evacuate.[417]
[594] Mr McGuire and his family got into the Rural Fire Service truck, at which time "we had a wave of water coming across the road", which he says was "coming at me" from Lockyer Creek from the south or south-west.[418] Mr McGuire was attempting to turn the fire truck around and make calls when he saw a wave of water coming across Gatton Helidon Road. The two walls of water, which Mr McGuire describes as being separated by about 30 seconds, came from Lockyer Creek, through the Pinkertons' house, hit the culvert along Gatton Helidon Road and travelled over the road to his house.[419] When the truck was hit by the water it spun around to face west and ended up in the ditch on the north side of the road approximately 100 metres east of his property. Water entered the cabin and was halfway up the windscreen when Mr McGuire threw his son, Zach, through the driver's window into a tree and told him to climb. Mr McGuire was then sucked out through the same window, ending up 50 metres to the east in a tree. Mr McGuire and his son, Zachary, survived. Mr McGuire, however, tragically lost his wife and two of his children who remained trapped in the fire truck.
[595] Having reached a tree Mr McGuire observed that the water rose by approximately a metre. The water took around six hours to recede to a level where Mr McGuire could see the lights on the top of the fire truck.[420]
[596] Dr Smart relies on a statement made by Mr McGuire to the Grantham Floods Inquiry:
[602] These are very serious accusations made by Mr Jones against the plaintiffs. There was, at trial, an attempt by 2GB and Mr Jones to justify the imputation that each of the plaintiffs attempted to intimidate a journalist and confiscate photographic evidence. This is the incident recounted by Amanda Gearing in the Thirty-Second Matter set out in [403] to [404] above. The defendants called Anthony Koch and Amanda Gearing to establish the truth of this allegation. The plaintiffs called reply evidence from Andrew Kehoe and Phillip Gregory, former employees of Wagners who were present at the time of the incident. It is not necessary to discuss this evidence in detail as the imputation is no longer sought to be justified. I observe, however, that the evidence presented by the defendants could never justify the imputation. First, from the evidence of both Mr Kehoe and Mr Gregory it was apparent that Mr Koch was mistaken in identifying Mr Gregory as Denis Wagner. More importantly, even if Mr Koch had not been mistaken, it was the case the journalists were in fact trespassing and none of the conduct by the plaintiffs' employees could, on any sensible view, amount to intimidation, let alone intimidation to conceal the plaintiffs' culpability for the Grantham Flood event.
[603] As to the remaining 33 imputations, 2GB and Mr Jones plead that these imputations are substantially true because, in accordance with the true facts set out in Attachment A to the defence, the plaintiffs had created or maintained a public discourse to the effect that the levee at the quarry was not a man-made levee, the desired effect of which it may be inferred was to cover up, or alternatively deflect attention away from, the true facts or any investigation of them.[429]
[604] The true facts are pleaded in paragraphs 1(i) to (m) of Attachment A to the defence. Paragraph 1(i) alleges that the plaintiffs caused or allowed public statements and submissions made on their behalf, or further or alternatively on behalf of the Wagner business, to deny the stockpiling of overburden so as to create the levee, until such time as that fact was conceded during the course of the Grantham Floods Commission of Inquiry, or otherwise denying the levee played any role in the flood event that resulted in the deaths of people in Grantham. This allegation is particularised by reference to a number of articles, including an article published in The Australian on 7 July 2011, as well as submissions made to the Grantham Floods Inquiry. Other pleaded true facts allege that the SKM Reports before the Queensland Floods Inquiry were flawed, but that "notwithstanding their flaws, the plaintiffs relied upon the SKM Reports to publicly deny any involvement in the levee in the cause of the flooding that led to the deaths of people in Grantham".[430]
[605] The defendants further plead in paragraph 1(m) of Attachment A to the defence that the plaintiffs:
[610] The first "public statement" relied on by the defendants is that made by Denis Wagner in an article "After the flood" published in The Australian on 7 July 2011.[435] Relevantly the article states:
[611] In an article, "Company welcomes flood testimony clearing quarry role" published by ABC News on 23 September 2011, Mr Wagner made certain comments in response to the findings by Dr Jordan at the Queensland Floods Inquiry that the quarry reduced water levels in Grantham by up to 10 centimetres and delayed the water's arrival by about 10 minutes:[436]
[632] The true facts pleaded in Annexure A to the defence in respect of the alleged intimidation of Ian Pinkerton is that on 23 July 2015, after Ian Pinkerton had given evidence at the Grantham Floods Inquiry critical of the first plaintiff's failure to accept any responsibility for the consequences of the flood, the first plaintiff drove to Mr Pinkerton's house, made no attempt to enter the property or to otherwise contact Mr Pinkerton, but instead, stood outside it on the roadway adjacent to his vehicle, staring in the direction of the house; unexplained conduct that was (it may be inferred if not admitted) designed to intimidate Mr Pinkerton.[462]
[633] The defendants' pleaded case is that the imputation is justified because the plaintiffs, by the actions complained of, were seeking to bully and intimidate Ms Brown, Dr Pascoe and Mr Pinkerton.
[634] The defendants called Ms Brown and Dr Pascoe. Evidence in reply was given by the second plaintiff, John Wagner, and Chris Barham. Both parties have made submissions concerning the credibility of Ms Brown, Dr Pascoe and John Wagner relevant to their evidence concerning the alleged bullying and intimidatory conduct. For reasons developed below, the defence of substantial truth in respect of the Category 3 imputation fails. This finding is not dependent on any assessment of the credibility of either Ms Brown, Dr Pascoe or John Wagner. The defence fails at the threshold because none of the alleged conduct evidences any intention on the part of the plaintiffs to bully or intimidate Ms Brown or Dr Pascoe. Whether Ms Brown or Dr Pascoe subjectively felt bullied or intimidated by the conduct of the plaintiffs is not relevant. The evidence does not establish any intentional conduct on the part of the plaintiffs to bully or intimidate Ms Brown and Dr Pascoe.
[635] The first incident concerns a meeting between Ms Brown and John Wagner at a fundraiser in late 2013. This was the first time that Ms Brown and Mr Wagner had met. Mr Barham was also present at the fundraiser. Mr Barham knew Ms Brown and John Wagner independently. Mr Wagner asked Mr Barham whether he would introduce him to Ms Brown. Prior to this meeting Mr Barham knew that Ms Brown had made public comments in relation to John Wagner and the airport.[463] Both Ms Brown and Mr Barham agree that there were around 600 people in the room at the function.
[636] Ms Brown's evidence was that she was kneeling next to a chair talking to a trainer who was hard of hearing. She felt a hand on her shoulder and then a hand was under her arm pulling her to her feet. She was surprised when she discovered it was John Wagner. Both Mr Wagner and Ms Brown accepted in evidence that the ensuing conversation they had with each other was "pleasant". Ms Brown's evidence in this respect was as follows:
[641] There is no evidence that Mr Wagner instructed the pilots of the Warbirds in conducting their flyover to fly low over Plaintree Farms. To the contrary, his evidence was that on the open day he endeavoured to keep the Warbirds well away from the Plaintree Farms. His evidence was that the Warbirds did not fly directly over the farm.[474] The pilots were instructed to "steer clear of Pascoe's place."[475] Mr Wagner's evidence in this respect was not challenged, rather he was cross-examined to the effect that the pilots could have been instructed to fly at a further distance away from Plaintree Farms. Mr Wagner accepted in cross-examination that he could have instructed the pilots to fly further away.[476] Mr Wagner denied that both in relation to the open day and the fundraiser any part of his conduct was either bullying or intimidatory:
[646] Mr Pinkerton gave evidence of an incident he alleges occurred the day he gave evidence at the Grantham Floods Inquiry. He was at home that afternoon. He went out to his front veranda to have a cigarette. It was at this stage that he noticed a motor vehicle.[483] It was a Land Cruiser. He noticed a person standing between the driver's door, which was half ajar, and the vehicle. The Land Cruiser was facing west. Mr Pinkerton states:
[652] The three imputations which the defendants seek to justify are that:
[653] The defendants plead that these meanings are substantially true because the airport had been able to be, or was, constructed and operated:[491]
[654] The defence does not define the term "the community's rules". There has been no attempt by the defendants to identify what "community rules" apply to the construction of an airport. The plaintiffs submit, and I accept, that the term is meaningless.[492] In any event, the defendants' written submissions identify specific matters by which the Category 4 imputations are sought to be justified.
[675] Mr Ovenden, in his report, did not identify any legislative provision which prevents the staggering of applications. He opines, however, that the fifth development application introduced what may be regarded as a piecemeal development. The basis for his opinion is that the plaintiffs responded to an information request from the Toowoomba Regional Council, which requested the applicant to "demonstrate the purpose and function of the proposed mezzanine ... areas" as follows:
[681] The defendants have failed to establish the substantial truth of the Category 4 imputations.
[692] Just prior to landing at Downey Park, Mr Wagner gave evidence of the following exchange with Air Services:
[703] The defendants' written submissions in respect of this defence generally assert that each of the relevant 10 matters contained a fair report of the progress of the Grantham Floods Inquiry, including a summary of the evidence. For example, the defendants submit:
(e) I deal with the Twenty-Ninth Matter in paragraphs [361] to [371] above. Mr Jones in his delivery of this broadcast conveys to the ordinary reasonable listener that there will be only one outcome from the Grantham Floods Inquiry, namely that the Wagners will be found to be culpable. After informing the listener that someone is not telling the truth, Mr Jones proceeds to inform the listener of three matters, all of which, in my view, suggest to the listener that the person not telling the truth is Denis Wagner. One of these matters is the allegation, which Mr Jones repeats, about Mr Wagner standing and staring at Mr Pinkerton's house. He queries whether Denis Wagner will be questioned at the Inquiry about this incident. Mr Jones makes a factual assertion that "This is the Wagner tactic". In the same broadcast Mr Jones makes references to Denis Wagner being "in the dock" and the previous witness, Mr McIntosh, becoming "the executioner".
(f) I deal with the Thirtieth Matter in [372] to [385] above. Unlike the nine other relevant matters the Court is able to compare the evidence given by Denis Wagner before the Inquiry with the broadcast constituting the Thirtieth Matter. In the course of his evidence before the Inquiry, Denis Wagner had the following exchange with Mr Sofronoff QC:[535]
(j) I deal with the Thirty-Fourth Matter in [425] to [431] above. The primary topic of the broadcast is the hydrologist report in evidence given by Dr John Macintosh to the Grantham Floods Inquiry. Mr Jones' tone and delivery of this broadcast creates a clear impression that Dr Macintosh's evidence is not to be accepted. Mr Jones suggests that Dr Macintosh's report "didn't pass the sanity test". He expresses with convincing disbelief that the report "[c]leared the Wagner quarry of all responsibility for creating or exacerbating the devastating the four to six metre surge, which killed 12 people". In spite of Dr Macintosh's finding, Mr Jones emphasises the following words: "But the fact is that Grantham had floods like this in the past - no-one's ever died". He then refers to a concession by Dr Macintosh that the quarry embankments were responsible for raising Lockyer Creek water levels 20 centimetres for at least two kilometres. Mr Jones concludes the broadcast by stating: "Which makes me wonder how you reach the conclusion in the first place that it was the railway line not the levee bank. The inquiry continues."
[708] The defendants have failed to establish that any of the 10 matters complained of was a fair report of the proceedings of the Grantham Floods Inquiry. Apart from the fact that a number of the broadcasts intermingled extraneous material, the broadcasts conveyed Mr Jones' opinion as to what the Inquiry would ultimately conclude. This conclusion was that the Wagners had illegally constructed a levee which collapsed, resulting in the deaths of 12 people at Grantham. That is, the Inquiry would conclude that the Wagners were culpable and sought to cover up their culpability. This defence fails.
[714] The defence of contextual truth fails.
[728] This defence fails.
[775] It is unsurprising given each plaintiff's extensive circle of both business and community acquaintances that the grapevine effect of the defamatory broadcasts was considerable.
[776] Denis Wagner gave evidence that people would regularly say to him by reference to Alan Jones, "What have you done to him?" People would also ask him questions such as "What's going on?" "What are you sort of hiding?" Mr Wagner stated that these questions were commonplace.[628] Denis Wagner was also asked questions by "a lot of different circles by a lot of different people over a long period of time" about the things that Mr Jones was broadcasting. These included references to the Wellcamp Airport. People would ask Denis Wagner, "Have you got approval for it?"[629] Denis Wagner gave the following evidence:
[783] The plaintiffs submit that the grapevine effect of the defamatory broadcasts is continuing. On 30 April 2018, which was the first day of the trial, the plaintiffs received a communication about the broadcasts. The message was received via the Wagners' website. The message reads as follows:
[807] The defamatory broadcasts caused Neill Wagner to experience anxiety and to withdraw socially.[679]
[808] Joe Wagner described his feelings in relation to the defamatory broadcasts as follows:
[814] Denis Wagner further explained why the plaintiffs did not commence proceedings against the defendants earlier. The plaintiffs sought legal advice in around 2013.[694] Acting on that advice the plaintiffs made a submission to the Australian Communications and Media Authority (ACMA) in respect of Mr Jones.
[815] Any delay in commencing proceedings against 2GB, 4BC and Mr Jones is explicable by reference to the alternative steps taken by the plaintiffs, and does not, in my view, impact upon my finding that the defamatory broadcasts have caused each plaintiff to suffer profound personal hurt.
[821] Mr Jones admitted that he had no hydrological or scientific evidence of any kind when he commenced broadcasting these grave accusations.[705] He relied on his understanding of what he had been told by eyewitnesses:
[835] Mr Jones admitted that he read the letter on or about 16 May 2014 and understood its contents.[735] Despite knowing and understanding these matters, in the broadcast of 26 May 2015 (the Eighteenth Matter complained of), which was more than a year after receiving Mr Farquharson's letter, Mr Jones referred to the plaintiffs destroying the Oakey Army Base, which trains helicopter pilots, and harming national defence interests for their own selfish, greedy purposes. Mr Jones made these accusations in circumstances where he had taken no steps to investigate the content of Mr Farquharson's letter. He did not, for example, write to Defence requesting any information about the issues raised by Mr Farquharson.[736] He did not access the preliminary airspace assessment undertaken by CASA. Mr Jones' explanation for not doing so was that he is "not the aviation ombudsman" and he only has "24 hours in a day".[737] Mr Jones' wilful blindness to the truth or falsity of these accusations is evident from the following exchange:
[841] Each plaintiff gave evidence of their knowledge that the accusations made by Mr Jones in the matters complained of were false. The plaintiffs knew that they had not broken the law or done anything illegal in relation to the development of the Wellcamp Airport, nor had they stolen Oakey airspace. They also knew that the accusation that they had caused the deaths of 12 people at Grantham was false. Denis Wagner at all times held the belief that if anything the quarry had an ameliorating effect on the Grantham Flood event.[748] The plaintiffs also knew that the accusations of them being corrupt, or engaging in bullying, were also false. I accept that each of the plaintiffs hurt was aggravated by their knowledge of the falsity of the accusations made in the broadcast.[749]
[854] There are three further factors which support the finding that the repeating of these defamatory assertions by Mr Jones, particularly in relation to Grantham, constitutes unjustifiable conduct. First, the defamatory assertions were repeated by Mr Jones prior to this Court making any findings as to whether the Category 1 and 2 imputations were substantially true. Second, Mr Jones continues to maintain his allegations in relation to Grantham against the plaintiffs notwithstanding that he:
[902] In Rayney, Chaney J viewed the defamatory imputation that Mr Rayney was guilty of murdering his wife as being "at the high end of the range of seriousness of defamatory imputations". The defamatory imputations had what his Honour described as a "devastating effect" on Mr Rayney's life.[838] In Rayney, the defendant did not seek to justify the imputation that the plaintiff had murdered his wife. Rather, the defendant sought to justify an alternative imputation that the plaintiff had so conducted himself as to give rise to a reasonable suspicion that he had murdered his wife. The award of $600,000 in Rayney included a component for aggravation. The defendants submit that both Wilson and Rayney represent judgments in this country which consider a substantial award of damages to be in the range of $600,000 to $650,000.[839] Senior Counsel for the defendants accepted, however, that these awards do not represent any type of upper limit.[840]
[903] In the present case, I have found that the plaintiffs enjoyed an excellent reputation for honesty and integrity, both in business and community circles, prior to the publication of the first matter complained of.[841] The publication of the matters complained of was very extensive. As to Mr Jones and 2GB, it involved 27 broadcasts which aired over an extended period between 28 October 2014 and 20 August 2015. The 76 imputations conveyed by these 27 broadcasts are extremely serious and of the gravest kind.[842] The defamatory broadcasts have caused each of the plaintiffs to suffer profound personal hurt.[843] In determining the damage done to each plaintiff's reputation, which includes business reputation, the Court should take into account the grapevine effect arising from the publication of the defamatory matters.[844]
[904] In respect of aggravated damages, my primary findings are that Mr Jones, for whose conduct 2GB is vicariously liable;
[905] There are a number of matters which have aggravated the hurt suffered by each of the plaintiffs in the present case which call for a higher award of damages than those made in Wilson and Rayney. I have dealt with these matters above. These matters go beyond a mere failure on the part of the defendants to apologise to the plaintiffs or their failed attempts to justify very serious imputations. In Mr Jones' evidence, he gratuitously attacked the plaintiffs' reputations and repeated, as I have found above, many defamatory accusations. This included Mr Jones repeating his belief that the plaintiffs are responsible for the deaths of 12 people. The repeating of these defamatory imputations by Mr Jones in the course of his evidence makes vindication an important consideration. A substantial award of damages is required to represent a full vindication of the innocence of the plaintiffs, and to be sufficient to convince any bystander of the baselessness of the accusations levelled against the plaintiffs.[845]
[906] In relation to the 27 matters complained of concerning Mr Jones and 2GB, I award each plaintiff damages, including aggravated damages, in the sum of $750,000.
[907] As to the Fifth and Sixth Matters complained of concerning Mr Jones and 4BC, the actual extent of publication cannot be ascertained. The audience figures, however, for the Sydney metropolitan area are 14,000 and 8,000 respectively. The extent of publication of the Fifth and Sixth Matters is less than the other matters. The imputations, however, are very serious. The Fifth Matter conveyed imputations which include allegations that the plaintiffs, knowing their culpability for the deaths of people in Grantham had been covered up, tried to convince the Premier of this fact and, separately, tried to persuade her to prefer her own self-interest ahead of the truth coming out by not appearing before a Senate inquiry. The Sixth Matter conveyed imputations that the plaintiffs were corrupt businessmen who were able to build an airport in breach of all laws by reason of their political connections, and who in constructing the airport had broken all the rules.
[908] The plaintiffs submit that a component for aggravation in respect of the Fifth and Sixth Matters is also warranted because:
[909] Of the four imputations conveyed by the Fifth and Sixth Matters, the defendants only sought to defend one of the imputations conveyed by the Sixth Matter, namely that each of the plaintiffs had constructed an airport and had broken all the rules in the construction of the airport. Mr Jones in evidence repeated his belief that the processes in relation to the construction of the Wellcamp Airport were corrupt. Further, at the time of broadcasting the Sixth Matter, Mr Jones was aware that Ms Brown and Dr Pascoe had received Senior Counsel's advice that the plaintiffs' airport application was legal.
[910] In respect of the Fifth and Sixth Matters I award each plaintiff damages, including aggravated damages, in the sum of $100,000.