Wagner & Ors v Nine Network Australia & Ors

[1]

[1] The defendants apply to strike out the imputations pleaded in paragraphs 18 and 19 of the plaintiffs' amended statement of claim in a defamation proceeding. This proceeding relates to material published on Channel 9, as part of an edition of the programme "60 Minutes".

[2] At issue is whether the pleaded imputations are so clearly incapable of arising as to warrant an order striking them out, or are pleaded in a form which of itself justifies an order striking out those imputations.

[2]

[3] This is the second application brought by the defendants to strike out pleaded imputations. The first application resulted in an order striking out the previously pleaded imputations with liberty to apply. As a consequence of those orders, the pleaded imputations were altered significantly.

[4] In my earlier decision I set out in detail the background to the proceeding and the contents of the broadcast in issue. [1] I will not repeat those matters in these Reasons. However, I rely upon them for my decision.

[3]

[5] Paragraph 18 of the amended statement of claim alleges:

[4]

"In its natural and ordinary meaning, the Broadcast and the Internet publication meant and were understood to mean (as separate imputations arising in respect of each plaintiff) that each of the first, second, third and fourth plaintiffs:

[5]

(a) was responsible for the catastrophic flood which devastated the town of Grantham and killed 12 people, including an infant child, in that the enormous wall of his quarry burst, unleashing an unprecedented inland tsunami into the town;

[6]

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;

[7]

(b) despite being responsible for the catastrophic flood which devastated the town of Grantham and killed 12 people, tried to hide his responsibility.

[8]

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;

[9]

(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."

[10]

[6] Paragraph 19 of the amended statement of claim alleges:

[11]

"By reason of the matters pleaded at paragraphs 17 to 5, the words spoken by the sixth defendant referred to in paragraph 11(c) meant and were understood to mean (as separate imputations arising in respect to each plaintiff) that each of the first, second, third and fourth plaintiffs:

[12]

(a) was responsible for the catastrophic flood which destroyed the town of Grantham and killed 12 people, in that the enormous wall at his quarry burst, unleashing the flood.

[13]

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."

[14]

[7] The applicable principles are not in dispute between the plaintiffs and the defendants. They were summarised in my earlier Reasons thus:[2]

[15]

"[11] The question for determination is "whether the words are reasonably capable of conveying the imputation to the ordinary reasonable reader".[3] The relevant principles for determining capability were summarised in Queensland Newspapers Pty Ltd v Palmer:[4]

[16]

'[19] Whether words complained of are capable of conveying a defamatory meaning is a question of law. The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. In deciding whether a particular imputation is capable of being conveyed in the natural ordinary meaning of the words complained of, the question is whether it is reasonably so capable to the ordinary reasonable reader. The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it. However, any strained, or forced, or utterly unreasonable interpretation must be rejected.

[17]

[20] The ordinary reasonable reader is a person of fair, average intelligence who is neither perverse nor morbid nor suspicious of mind nor avid of scandal. However, that person does not live in an ivory tower but can, and does, read between the lines in light of that person's general knowledge and experience of worldly affairs. The ordinary reasonable reader considers the publication as a whole, and tends to strike a balance between the most extreme meaning that the publication could have and the most innocent meaning. That person has regard to the content of the publication. Emphasis given by conspicuous headlines or captions is a legitimate matter the ordinary reasonable reader takes into account.

[18]

[21] Whilst the test of reasonableness guides a determination of whether the matter complained of is capable of conveying any of the pleaded imputations, a distinction must be drawn between what the ordinary reasonable reader (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of, and the conclusion which the reader could reach by taking into account his or her own belief which has been excited by what was said. The approach to be taken must be the former, not the latter.

[19]

[23] Ultimately, a determination of the meaning conveyed to the ordinary reasonable reader is, as the appellant accepted, a matter of impression, allowing for the fact that that reader is likely to have read the publication only once.'

[20]

[8] The defendants submit that each of the meanings pleaded in paragraphs 18 and 19 of the amended statement of claim are incapable of arising in that they constitute strained, forced or unreasonable interpretations of the broadcast. Further, the meanings are improper in form using words like "caused" and meanings that are constructs.

[9] The defendants submit the use of the word "caused" in 18(a) of the amended statement of claim is ambiguous. It is open to difference senses and concepts. It should be struck out on that basis alone. Such a meaning constitutes an improper form, particularly having regard to the subject of the story, namely, the alleged inadequacy of the inquiry undertaken by the Commission of Inquiry into the cause of the Grantham flood.

[10] In any event, an imputation that the plaintiffs caused the flood is incapable of arising because the broadcast is not reasonably capable of being understood as conveying that the plaintiffs were at fault for the collapse of the quarry wall. The programme dealt with the relevance of the quarry wall to the impact of the flood waters. It did not concern who was responsible for construction of the quarry wall. There is no mention as to why the quarry wall collapsed at all.

[11] The lack of these assertions is central to the incapability of the meaning to arise; the plaintiffs' meaning asserts the collapse was as a consequence of inaction on their part when there is no such assertion in the broadcast. Paragraph 18(a) also contains the unnecessary and irrelevant words "as well as incomprehensible grief, trauma and devastation", which add nothing to what is said to be the sting of the meaning itself.

[12] The defendants submit the meaning pleaded in paragraph 18(b) is incapable of arising from the broadcast. Only an overly suspicious mind could conclude from the contents of the broadcast that the plaintiffs, in declining an interview with a television programme, were seeking to conceal the truth. There is no basis for an assertion the broadcast conveyed there was any act of concealment by the plaintiffs.

[13] The defendants submit that paragraph 18(c) is incapable of arising the imputation is based on each of the plaintiffs having an obligation to answer and their refusal to do so being disgraceful. No reasonable viewer could read into what was said in the broadcast that there had been a disgraceful refusal by the plaintiffs to answer to the public.

[21]

[15] The plaintiffs submit each of the meanings pleaded in paragraphs 18 and 19 of the amended statement of claim are capable of arising, particularly in the context of a broadcast which was insinuating and sensational. The ordinary viewer views the whole of the publication but does not necessarily give equal weight to every part of the publication. The broadcast is also a transient publication.

[16] The plaintiffs submit the word "caused" is not ambiguous. The pleaded meaning attributes the nature in which that word is used in the imputation. In such circumstances, the meaning is not properly amenable to strike out on the basis of ambiguity.

[17] The plaintiffs submit the central thrust of the programme was who and what caused the devastation of Grantham. The broadcast, by its reference to the truth being finally known, conveyed to viewers that the defendants had the answer to that question. The broadcast expressly said the wall of water through Grantham was caused by the collapse of the quarry wall and that collapse was due to the "failings of men". In the context of a programme which specifically identified the "Wagners" as the owners of the quarry at the relevant time, it was capable for a reasonable listener, engaging in a degree of loose thinking, to attribute the meaning pleaded in paragraph 18(a) to the broadcast.

[18] The thrust of the programme was that the flood was a man-made catastrophe which was avoidable. It is not for the plaintiffs to specify what steps ought to have been taken. The broadcast itself failed to do so. The connection with the plaintiffs was highlighted by the sinister tone adopted at around the time of the discussion of the reasons for the wall of water striking Grantham and the consequent deaths.

[19] The plaintiffs submit the imputation pleaded in paragraph 18(b) arises because the programme, after asserting it was time for the truth to be finally known, suggested the quarry was being kept locked behind gates, in the context of a concern that key evidence would be destroyed following the announcement of a fresh Commission of Inquiry. The viewer was left with the impression there may be concealment at the quarry, which the plaintiffs owned at the time of the flood.

[20] The plaintiffs submit the imputation pleaded in paragraph 18(c) arises because the broadcast stated the "Wagners" had declined a request for an interview, in the context of assertions there was a need for the truth to be finally known. The inference conveyed by the broadcast was that the Wagners were in a position to know, and would not speak. Such an inference supported an imputation the refusal to speak was disgraceful.

[22]

[21] The test, to be applied on a strike out application alleging imputations are incapable of arising, was stated by McPherson JA in Favell v Queensland Newspapers Pty Ltd:[5]

[23]

"Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken."

[24]

[22] Whether the imputations pleaded by the plaintiffs are properly to be struck out requires an assessment of whether each pleaded meaning is reasonably capable of being conveyed to the ordinary reasonable viewer. In undertaking that task it is relevant to consider the mode and manner of publication.

[23] Whilst it is apt to describe the broadcast as being presented in a sensational manner, with undertones of subterfuge, the ordinary reasonable viewer is neither perverse nor overtly suspicious. The ordinary reasonable viewer considers the broadcast as a whole, although there is naturally scope to read between the lines.

[25]

[24] A consideration of the broadcast as a whole supports a conclusion that the thrust of the broadcast was that the original Commission of Inquiry into the flood in Grantham failed to properly investigate the cause of the "torrent of water" that swept through the town, resulting in its destruction and the loss of 12 lives. The broadcast posited that the torrent of water occurred as a consequence of the collapse of a quarry wall upstream from the town and that the flood was "a man-made catastrophe ... that should have been avoided".

[25] Consistent with the thrust of the broadcast, the reporter asserted that whilst the source of the torrent of water should have been at the centre of the investigation, the Commission of Inquiry ignored first-hand accounts of the flooding and did not accurately record the timeline. The reporter asserted the Commission "got it flat wrong". The broadcast posited the floodwaters had built up behind the quarry wall, which breached like a burst dam. The giant wave of water was a "man made intervention".

[26] The broadcast identified the quarry as being owned by the "Wagners" at the time of the flood. Whilst the broadcast asserted the quarry wall was built to stop the quarry flooding, the broadcast did not assert the quarry wall had been constructed by the Wagners or during the time of the Wagners' ownership. The broadcast did not attribute as a reason for the collapse of the quarry wall that it had been built inappropriately, deficiently or illegally. The broadcast gave no reason for the collapse of the wall, other than the build-up of flood water behind it.

[27] Finally, the broadcast dealt with challenges to the findings of the original Commission of Inquiry and the establishment of a new Commission of Inquiry. The broadcast spoke of the questions to be answered, including the impact of the quarry. In this context, concerns were raised over the plans of Boral, the current owner of the quarry. Around this time the reporter said the "Wagners" had declined to be interviewed for the programme. The broadcast also referred to fears steps may be taken to dismantle the remnants of the quarry wall which "could prove to be key evidence".

[26]

[28] The ordinary reasonable viewer, considering the broadcast as a whole, could understand that the defendants were conveying in the broadcast that the torrent of water that hit Grantham, resulting in the death of 12 people, was caused by the collapse of the quarry wall. However, only an ordinary reasonable viewer avid for scandal or taking into account his or her own beliefs could understand that the defendants were conveying in the broadcast that the plaintiffs had caused those deaths by not taking steps to prevent the collapse of the quarry wall. Such an imputation is incapable of reasonably arising from a consideration of the broadcast as a whole. The broadcast does not concern a failure to take steps to prevent the collapse of the quarry wall.

[29] The plaintiffs contend the imputation is reasonably capable of arising because the broadcast repeatedly asserted that the flood and resultant deaths were as a result of man-made intervention. Whilst it may have been arguable, had there been an assertion in the broadcast that the Wagners were responsible for that man-made intervention, that the Wagners had an obligation to prevent its collapse, the lack of any such assertion renders the drawing of the meaning alleged in paragraph 18(a) of the amended statement of claim by the ordinary reasonable viewer an unreasonable interpretation of what was being conveyed by the broadcast as a whole.

[30] Paragraph 18(a) is properly to be struck out in all the circumstances. In reaching this conclusion I have had regard to the sensational nature and tone of the broadcast, including the juxtaposition of the reference to the "Wagners" and the depiction of a hard-hat with "Wagners" at the time of the reference to locked gates and the declining of an interview. I have also had regard to the words and images contained in the broadcast as a whole.

[27]

[31] An aspect of the broadcast dealt with concerns raised as to the possible destruction of evidence before the newly announced Commission of Inquiry determined the cause of the flood. The broadcast had earlier contained an image of locked gates and an assertion that the vision had been taken in secret. Around the same time, the broadcast contained reference to the "Wagners" having owned the quarry at the time of the flood, and of having declined to be interviewed by the programme. Juxtapositioned at that point was a picture of a hard-hat containing "Wagners".

[32] An ordinary reasonable viewer, considering the broadcast as a whole, could reasonably understand from what the defendants said in the broadcast that the plaintiffs declined the defendants' request for an interview about the quarry wall in order to conceal the truth about the role the plaintiffs' quarry played in the Grantham flood. This conclusion arises because the reference to the Wagners having declined a request for an interview occurred at the time there was vision of the quarry and the assertions it is "behind locked gates" and was "shot in secret".

[33] The fact there was specific reference to the quarry now being owned by Boral does not render the imputation incapable of reasonably arising in all of the circumstances. The ordinary reasonable viewer can read between the lines. At the same time, the broadcast spoke of the quarry being owned by the Wagners at the time of the flood who declined the request for an interview.

[34] Whilst an ordinary reasonable viewer may have understood the broadcast as conveying that the former owners of the quarry had refused to cooperate with the production of the broadcast, I am not satisfied an imputation" that the plaintiffs sought to conceal the truth from becoming known about the role the quarry played in causing the catastrophic flood that devastated the town of Grantham" is incapable of reasonably arising in all of the circumstances.

[35] That reasonable minds may differ on this proposition provides a strong reason for not exercising the discretion to strike out the imputation. I decline to do so in the circumstances.

[28]

[36] The meaning pleaded in paragraph 18(c) relates to that aspect of the broadcast dealing with the plaintiffs having declined a request to be interviewed. The pleaded meaning is that this refusal was a disgraceful refusal to answer to the public for the plaintiffs' failure to take steps to prevent the collapse of the quarry wall. Disgraceful conveys shameful or dishonourable.

[37] Only an ordinary reasonable viewer avid for scandal and drawing a conclusion based upon his or her own beliefs could consider the broadcast as a whole as reasonably conveying such a meaning. There is no reasonable basis for the ordinary reasonable viewer to draw an inference of shameful or dishonourable conduct.

[38] The statement that the Wagners declined a request to be interviewed, even allowing for the surrounding images and tone, is also incapable of conveying to the ordinary reasonable viewer an imputation that that refusal constituted a refusal to answer to the public for their failure to take steps to prevent the collapse of the quarry wall. Declining a journalist's request for an interview does not reasonably convey a refusal to answer to the public. There was no suggestion in the broadcast "the Wagners" had refused to participate in, or cooperate with, the original Commission of Inquiry or the newly announced Commission of Inquiry.

[39] Paragraph 18(c) is properly to be struck out in all the circumstances.

[29]

[40] The imputation pleaded in paragraph 19 of the amended statement of claim is incapable of reasonably arising from the broadcast as a whole for similar reasons to those dealt with respect to paragraph 18(a) of the amended statement of claim. Such an imputation is also incapable of reasonably arising from the words spoken by the sixth defendant.

[41] The words spoken by the sixth defendant were reasonably capable of conveying that the torrent of water that devastated Grantham, resulting in the death of 12 people, was caused by the collapse of the quarry wall. However, there is no basis for the ordinary reasonable viewer to conclude, other than by reason of an exercise of their own beliefs, that the sixth defendant was conveying that the plaintiffs had caused that devastating flood by not taking steps that should have been taken to prevent the collapse of the quarry wall.

[42] The meaning pleaded in paragraph 19 of the amended statement of claim is properly to be struck out.

[30]

[43] The defendants have established that the imputations pleaded in paragraphs 18(a), 18(c) and 19 of the amended statement of claim are incapable of reasonably being conveyed to the ordinary reasonable viewer. The defendants have not, however, established that the meaning pleaded in paragraph 18(b) is incapable of reasonably being conveyed to the ordinary reasonable viewer.

[31]

1. Paragraphs 18(a), 18(c) and 19 of the amended statement of claim are struck out.

[32]

[44] I shall hear the parties as to any other orders and costs.

[33]

[1] Wagner & Ors v Nine Network Australia & Ors [2016] QSC 87 at [3] - [8].

[34]

[2] Wagner & Ors v Nine Network Australia & Ors [2016] QSC 87.

[35]

[3] Palmer v Nationwide News Pty Ltd [2014] QSC 174 at [13].

[36]

[4] [2012] 2 Qd R 139; [2011] QCA 286.

[37]

[5] [2004] QCA 135 at [2]; see also Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 at [6]; [2005] HCA 52 at [6].

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (37 paragraphs)

Parties

Cases Cited (1)