Wagner v Nine Network Australia Pty Ltd [2017] QCA 261

SUPREME COURT OF QUEENSLAND

CITATION: Wagner & Ors v Nine Network Australia Pty Ltd & Ors [2017] QCA 261

PARTIES: DENIS WAGNER (first appellant) JOHN WAGNER (second appellant) NEILL WAGNER (third appellant) JOE WAGNER (fourth appellant) v NINE NETWORK AUSTRALIA PTY LTD ACN 008 685 407 (first respondent) TCN CHANNEL NINE PTY LTD ACN 001 549 560 (second respondent) QUEENSLAND TELEVISION LIMITED ACN 009 674 373 (third respondent) WIN TELEVISION QLD PTY LTD ACN 009 697 198 (fourth respondent) NINEMSN PTY LTD ACN 077 753 461 (fifth respondent) NICHOLAS CHARLES CATER (sixth respondent)

FILE NO/S: Appeal No 9199 of 2016 / SC No 11789 of 2015

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane – [2016] QSC 198 (Boddice J)

DELIVERED ON: 3 November 2017

DELIVERED AT: Brisbane

HEARING DATE: 8 May 2017

JUDGES: Morrison and Philippides and McMurdo JJA

ORDERS: The appeal is allowed.The orders of the primary judge striking out paras 18(a), 18(c) and 19(a) of the amended statement of claim are set aside.Unless the parties file submissions as to costs in accordance with Practice Direction 3 of 2013, paragraph 52(4), within 14 days of the publication of these reasons, the respondents are to pay the appellants’ costs of and incidental to the appeal and the application below.

CATCHWORDS: DEFAMATION – ACTIONS FOR DEFAMATION – PLEADING – QUEENSLAND – where the appellants brought a defamation action in relation to a 60 Minutes broadcast and a subsequent internet publication about the 2011 Grantham Floods – where the primary judge ordered that certain paragraphs of the appellants’ amended statement of claim be struck out on the basis that the imputations pleaded therein were incapable of arising – whether the pleaded imputations were capable of arising as a matter of law – whether the primary judge erred in exercising the discretion to strike out the paragraphs / Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; [1998] NSWSC 4, applied / Favell & Anor v Queensland Newspapers Pty Ltd & Anor [2004] QCA 135, applied / Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52, cited / John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; [2003] HCA 50, considered / Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 139; [2011] QCA 286, applied / Wagner & Ors v Nine Network Australia & Ors [2016] QSC 87, related / Wagner & Ors v Nine Network Australia & Ors (No 2) [2016] QSC 198, reversed

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

SOLICITORS: Corrs Chambers Westgarth for the appellants / Mark O'Brien Legal for the respondents

MORRISON JA: I have read the reasons of Philippides JA and agree with those reasons and the orders her Honour proposes.

PHILIPPIDES JA:

Background

The appellants (the Wagners) have brought a defamation action against five media companies which form part of the Nine Network (the first to fifth respondents) and a journalist (the sixth respondent) who was interviewed for and appeared on a 60 Minutes broadcast and a related subsequent internet publication about the 2011 Grantham Floods in which 12 people died. The broadcast included the words in annexure A.

The appellants appeal against orders of the primary judge¹ striking out paras 18(a), 18(c) and 19(a) of the appellants’ amended statement of claim on the basis that the imputations pleaded therein were incapable of arising. The decision of the primary judge was made in the context of a previous successful application to strike out the earlier pleaded imputations, with liberty to re-plead, which was not subject to appeal.²

The amended statement of claim filed contained the following paragraphs:

“18. 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:

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;

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;

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

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.

19. 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:

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.

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.”

Background facts

The primary judge made the following observations concerning the broadcast as a whole:³

“[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’”.

The primary judge further stated:⁴

“[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’.

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.

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’.”

The reasons of the primary judge

Paras 18(a) and 19(a) of the amended statement of claim:

As to para 18(a) of the amended statement of claim, the primary judge held:⁵

“[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.

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.”

As to para 19(a) of the amended statement of claim, the primary judge held:⁶

“[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.

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.”

Para 18(b) of the amended statement of claim

The primary judge accepted that the imputation in para 18(b) was capable of arising:⁷

“[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’.

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’.

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.

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.

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.”

Para 18(c) of the amended statement of claim

Although the primary judge refused to strike out para 18(b) of the amended statement of claim his Honour took a different view of para 18(c), holding:⁸

“[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.

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.

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.”

The grounds of appeal

The appellants argue that the primary judge erred in holding that the broadcast was incapable, as a matter of law, of conveying the imputation pleaded in paras 18(a) and 19(a) of the amended statement of claim and, in particular:

in finding that “the broadcast does not concern a failure to take steps to prevent the collapse of the quarry wall”, when the failure to take steps to prevent the collapse of the wall was a central theme of the broadcast, such that the finding made was plainly unavailable on the evidence, in light of statements in the broadcast like “a man-made disaster that should have been avoided but wasn’t”;

in apparently holding that the broadcast was incapable of imputing to the appellants responsibility for the “man-made intervention”, when the broadcast:

asserted that the disaster was both avoidable and man-made, thereby imputing to someone (pointedly unidentified) responsibility for the disaster;

stated expressly, and by implication, that someone, pointedly unidentified, should be required to answer for the collapse of the wall;

referred to the appellants orally and visually as the owners of the quarry at the time;

referred to their refusing to be interviewed;

did not suggest any other person or persons bore that responsibility; and

was generally invested with a tone of suspicion and (as his Honour found) was sensational in nature and tone.

The appellants argued that the primary judge erred in holding that the broadcast was incapable, as a matter of law, of conveying the imputation pleaded in paragraph 18(c), in particular, holding that there was no reasonable basis for the ordinary reasonable viewer to draw an inference of shameful or dishonourable conduct, in circumstances where:

The broadcast was capable of imputing to the appellants that they had failed to take steps that they should have taken to prevent the collapse of the quarry wall and the appellants had not admitted to it and had declined to be interviewed on the subject.

The inference that such conduct was disgraceful was, as a matter of capacity, comfortably available and should have been so found.

In advancing these grounds of appeal, the appellants argued⁹ that the primary judge erred in finding the relevant imputations were not capable of arising because his Honour failed:

to consider whether reasonable minds might differ as to whether the challenged imputations were capable of arising, in circumstances where that conclusion was inescapable;

to consider whether the challenged imputations could reasonably be found by a jury;

to apply well established principles that required the broadcast to be considered as it would be viewed and understood by the ordinary reasonable viewer; and

to have regard to the (significant) fact that the decision to strike out the challenged imputations had the effect of depriving the appellants of the opportunity of presenting a substantial part of their case to the jury.

The applicable principles

There is no dispute that the primary judge correctly identified the test applicable on an application to strike out alleged imputations as incapable of arising as that set out by McPherson JA in Favell v Queensland Newspapers Pty Ltd¹⁰ and endorsed by the High Court:¹¹

“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.”

The question of the capacity of a published matter to convey defamatory meanings is a question of law.¹² The question is whether the words are reasonably capable of conveying the pleaded imputation to the ordinary reasonable viewer.¹³ The discretion to strike out the pleading depends on the degree of assurance with which that conclusion can be reached. Since the test is concerned with one relating to the capacity of an imputation arising, it is one applied with generosity and not parsimony, taking into account also that reasonable minds may differ as to the meaning of a publication.

The relevant principles for determining the natural and ordinary meaning of the broadcast as viewed by the ordinary reasonable viewer were summarised by the primary judge at [7], adopting what was said in Queensland Newspapers Pty Ltd v Palmer,¹⁴ and are not in dispute.

The appellants sought to emphasise certain aspects of those principles, which are not of themselves contentious. They are, firstly, that although the ordinary reader is taken to read the whole of the publication, as explained by McHugh J in John Fairfax Publications Pty Ltd v Rivkin:¹⁵

“… 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.”

Secondly, the ordinary reader has the capacity for implication and loose thinking, especially in matters that are sensational and insinuating and, even though an imputation must be necessary as well as reasonable, “ordinary readers draw implications much more freely, especially when they are derogatory”.

Further, the mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. As Hunt CJ at CL observed in Amalgamated Television Services Pty Ltd v Marsden:¹⁶

“The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reader will have read it with the degree of analytical care which may otherwise have been given to a book, and the less degree of accuracy which would be expected by the reader.

Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which had gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity.

… The trial judge in a transient publication case will therefore more readily leave it to the jury to decide an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed, than he or she would in a written document case.”

Paras 18(a) and 19(a) of the appellants’ amended statement of claim

The appellants’ submissions

The appellants accepted that the central thrust of the broadcast, presented to the viewer in the opening moments, was that, in respect of the deluge at Grantham in which 12 people died, the initial Flood Inquiry “got it wrong” and that “it is time the truth is finally known”. However, that theme was further developed, it was submitted, by a number of key messages contained within the broadcast as follows:

Grantham was washed off the map in a catastrophe. Twelve people died horrifically – including a baby girl, drowned, torn from her grieving mother’s arms. The grief, trauma and devastation was hard to comprehend. The grief and trauma remained raw. It was the bursting of the huge wall at the quarry that was the cause of the Grantham flood. It sent a wall of water through Grantham.

The horror was compounded by a cruel injustice. The official inquiry got it wrong. It was a “man-made catastrophe” that should have been avoided – and, therefore, it is said, by necessary inference, could have been avoided. That is, someone could and should have taken steps to avoid it. It was an “act of God turned deadly due to the ‘failings of men’”.

The appellants, “one of Australia’s wealthiest families”, owned the quarry at the time of the collapse. In other words, it was indicated that the catastrophe occurred on their watch (a battered and abandoned helmet at the site with the appellants’ logo on it is shown for good measure). The appellants declined to be interviewed.

It was submitted by the appellants, that having thus stated unambiguously, that the catastrophe was due to the “failings of men”; “should have been avoided but wasn’t”; and that, therefore, “steps should have been taken” to avoid the catastrophe, the reporter in the broadcast, by a glaring omission that it was said would not be lost on the viewer, did not expressly identify the “men” responsible for taking the necessary steps. However, it was a pregnant omission – the only persons identified at that point were the owners of the quarry at the time, the appellants.

It was submitted that any jury, acting reasonably, would be entitled to understand that it was the appellants who were responsible – and indeed to understand the broadcast as intending that meaning. It was argued that it was a classic example of being “willing to wound but afraid to strike”.

It was further contended that the broadcast also contained distinct messages to the following effect:

“(a) The truth of what caused the flood is unknown because the official inquiry got it wrong, described as a ‘cruel injustice’, and the statement is then posed that it is ‘time the truth is finally known’ which carries the inference that the truth has been concealed …;

That since the flood, the Wagners [had] sold the quarry to Boral who (for reasons unexplained) now keep it locked behind gates so that no person can access the quarry except by clandestine means …;

There is a ‘fear’ by local residents (who must be the same residents that have been subject of the ‘cruel injustice’ following the official inquiry getting [it] wrong) that the quarry would be dismantled and thereby permanently destroy ‘key evidence’ for the purposes of a new inquiry which is intended to be ‘open and thorough about exactly what happened that day in Grantham’ …;

An assurance from the highest level of Government, the Premier, that there is a ‘need to ensure that no evidence is trampled with’ …”.

The appellants’ primary argument was that the conclusion (at [28] of the Reasons) that the broadcast did not concern a failure to take steps to prevent the collapse of the quarry wall was simply not open. It was submitted that the broadcast was concerned with a theme that there was a failure to take steps to prevent the collapse of the quarry wall. The broadcast was focused upon the collapse of the quarry wall, a reprehensible failure to avoid it and the fact that it caused the devastation and the deaths of 12 people. This was said to be apparent from the repeated references in the broadcast to the fact that the flood and the deaths were “man-made”, that they “should have been avoided” and were “due to the failings of men”.

Similarly, the finding by the primary judge (at [29] of the Reasons) that the broadcast was incapable of imputing to the Wagners responsibility for man-made intervention was also a finding that was not open. The broadcast, it was argued, conspicuously asserted an omission, that is, a failure to act to prevent the catastrophe. While the broadcast did not explicitly assert that it was the appellants who were the “men” responsible, the viewer, being the ordinary reasonable viewer and possessing the characteristics of that person identified above, was likely to ask the question with a legitimate degree of concern and indignation: if it was a catastrophe that should have been avoided but wasn’t, who should have taken the steps to avoid it? It was submitted that there could be only one answer to that question and that was to be found in the information offered to the viewers of the broadcast as to who had a connection to the quarry at the time of the floods. As to this, the viewers are told that at the time of the flood the quarry was owned by “concrete giants the Wagners”, “one of Australia’s wealthiest families – who refused to talk to 60 Minutes”. There was no other person mentioned as having any connection whatsoever to the quarry at the time.

Furthermore, it was argued that the imputation that it was the appellants who were the people who should have taken steps to avoid the collapse of the quarry wall, was reinforced by the repeated references in the broadcast to the flood being a “man-made catastrophe”, a “man-made disaster that should have been avoided by wasn’t”, a “man*‑*made intervention”, and an “act of God [having] turned deadly due to the failings of men”. Each of these emotive references imputed responsibility for the disaster to a person or persons. While that person or persons were not expressly named, the viewer was directed only towards the owner of the quarry at the time of the flood, the Wagner family, who the viewer was told declined to be interviewed. The broadcast made no mention of any other person or persons declining to be interviewed or to any person or persons (other than the current owner) who have any connection to the quarry. It was submitted that when considered this way, as a matter of capacity imputations 18(a) and 19 are more than capable of arising.

This was particularly so in circumstances where:

the mode and manner of publication are material in determining what imputations are capable of being conveyed;

the ordinary reasonable viewer has the capacity for implication and loose-thinking, especially in matters that are sensational and insinuating and does not necessarily give equal weight to each part of the broadcast;

the actual broadcast was sensational – being invested with a tone of suspicion, sensational in nature and tone and accompanied by tense, eerie, mood music;

in cases of transient publications, trial judges should more readily leave it to a jury to decide whether an imputation affected by the mode or manner of publication was in fact conveyed; and

the striking out of imputations of capacity grounds is a power to be exercised only “with great caution”.

The respondent’s submissions

The respondents submitted that para 18(a) was to be understood as being to the effect that the appellants caused the deaths of people in the flood because they failed to take steps to prevent the wall collapsing. The imputation had, as its central proposition, that the appellants were causative of the flood.

“Caused”, it was said, is what is frequently termed a “weasel” word ­– a word of “convenient ambiguity”.¹⁷ A person’s acts (or failure to act as appeared to be the case here) can be causative in different senses – direct or indirect, depending on the circumstances of the case – each of which requires demonstration (or a defence of truth) in different ways. It was contended that the causative role of an act can be made clear so as to resolve that ambiguity but that did not occur in the present case – the use of the word “caused”, it was argued, was just as problematic as was the previous use by the appellants of the word “responsible”, which had also been struck out.¹⁸ Whilst the acts said to be causative were set out in the pleading (failure to prevent the wall from collapsing), the sense in which the word causative was used was not giving full force and effect to its ambiguity.

The respondents further submitted that an imputation that the appellants caused the flood was incapable of arising. In order to succeed, the publication had to carry a definitive statement that the appellants were at fault for the collapse of the quarry wall which caused the flood. The broadcast, however, as the primary judge found, was only reasonably capable of being understood as something considerably less.

It was contended that, properly understood, the narrative was that the official inquiry into the 2011 floods erred in overlooking what occurred during a crucial hour on the afternoon when Grantham was hit. The official inquiry was wrong for failing to recognise that it was not a normal flood. The force of the water and its source should have been at the centre of investigations but that did not occur. The official inquiry ignored firsthand accounts; did not accurately record the timeline; and dismissed concerns that a collapsed quarry wall upstream had released a devastating wall of water. The devastation was caused by the collapse of the quarry wall when it breached like a burst dam. It was no act of God but a man-made intervention. The flood was not a freak flood but a man-made catastrophe (or disaster) that should have been avoided. That was made evident from the context in which “man‑made” was later used, which was able to be understood as a reference to the fact that the quarry wall, which collapsed releasing a flood of water that had built up behind it, was not a natural part of the landscape. The quarry wall formed a barrier to water moving downstream, causing water to build up behind it for more than an hour. The error at the official inquiry was perpetuated by reliance upon computer modelling, rather than eyewitness accounts. There was video evidence showing that the official inquiry was wrong when it found the wall of water struck Grantham at between 3.15 and 3.30 pm. It could not in fact have struck until after 4.16 pm (when the television news helicopter from which the footage was taken left Brisbane).

In other words, the focus of the broadcast was upon the failures of the official inquiry to note crucial evidence that would have demonstrated that it was a wall of water released by the collapse of the quarry wall that was so devastating. In that (at least one) unaccounted for hour (to which the title of the program, “The Missing Hour”, referred), water was building up behind the quarry wall. If the water had not been held back, there would still have been a flood but it would not have taken lives. But for the quarry wall, it was improbable that 12 people would have died. A new inquiry had been announced by the Queensland Government that would answer the question about the quarry wall’s impact.

The respondents argued that the broadcast did not impute that any person who owned the wall was at fault for its collapse, whether by action or inaction. Rather, it was contended that the focus of the publication was that it was the collapse of the wall that caused the devastation, which was a different issue.

Insofar as the appellants’ case was concerned, it was submitted that the meanings in issue could only arise if the broadcast had also suggested that it was the appellants’ inactions that caused the wall to collapse. No reasonable viewer would reach that conclusion. The respondents argued that, while the broadcast stated that at the time of the flood the quarry was owned by the appellants, one of Australia's wealthiest families, this was a mere assertion of ownership and, it was submitted, that an associated allegation that, in consequence, the appellants were at fault for the collapse of the wall, was something altogether different. Other than the fact of ownership of the site at the time of the flood and a reference to a desire not to participate in an interview for the story, the respondents contended that there was no mention of the appellants, let alone a suggestion that their role (or the role of the owners) played a part in the quarry wall’s collapse. The story was about something else – the fact that the role played by the release of water from behind the quarry wall in the deaths of the people in Grantham (as opposed to the flood generally) had not fully been investigated.

As to the meaning at para 19(a) of the amended statement of claim, it was directed only at the words in the broadcast said by the sixth respondent. The respondents relied on the matters already mentioned relating to the use of the word “caused”. In addition, a meaning that the appellants caused the flood had to arise from only those words,¹⁹ the height of which was, to the effect, that the collapse of the quarry wall caused the devastating flood. A fair consideration of them could not give rise to the conclusion that the sixth respondent was saying that the appellants caused the collapse of the wall and its after-effects. There was no doubt that the broadcast contended that it was the result of the collapse of the quarry wall that released the flood of water that was the cause of the devastation. That, however, as noted above, was a proposition quite different from the meanings alleged, which were to the effect that the deaths of 12 people in Grantham were the fault of the appellants.

Consideration

There is no dispute that the thrust of the broadcast was that the flood that devastated Grantham was not a natural consequence of the rain that had fallen in the previous 24 hours in the catchment area northwest of Grantham but was due to the collapse of the wall of a quarry owned by the appellants to the west of the town. Nor is it disputed that, in that regard, the broadcast asserted that the Inquiry overlooked “a crucial hour” that “explained what happened when the quarry wall burst sending a wall of water through Grantham” of a “force” that was “devastating, destroying”. The broadcast stated that the inquiry did not accurately record the timeline and dismissed concerns that a collapsed wall released a devastating wall of water. It was said that the “force and source of that wall of water” was not but should have been the centre of the investigations. A new Flood Enquiry to find out the truth about what happened would get answers to what the impact of the quarry was and where the large volume of water came from.

The broadcast also asserted that the quarry wall was “controversial” and posed the question of why the wall was built, to which it provided the answer that it was built to stop the quarry, which was in a bend of the river, from flooding. It was asserted that the quarry wall was “an enormous dam wall that burst”. The wall was said to be 260 metres (not 55 metres as the Inquiry found) and to have breached in four places not one.

In my view, the broadcast was also capable of giving rise to imputations beyond that concerning the cause of the flood being attributable to the collapse of the quarry wall. It was also capable of conveying that the collapse of the wall which caused the flood was due to “man-made interventions and failings”. The statements that the deadly flood was a “man­‑made” intervention and that what occurred was “not just a freak flood but a man‑made catastrophe that should have been avoided but wasn’t” were capable of being understood as conveying that someone was responsible and at fault for failing to ensure that the quarry wall did not collapse.

In that regard, Mr Usher’s statement, “The town needs to know how an act of God turned deadly due to the failings of men” was a significant aspect of the broadcast. In the context of the broadcast as a whole, the “failings of men” could be understood as being concerned with more than the existence or the building of the wall. It was capable of being understood as raising a “failing” to avoid the flooding from turning “deadly” by taking steps to prevent the collapse of the wall. I do not consider that that statement alone anchors the relevant imputation such that, without it, nothing said by Mr Cater could be said to warrant the drawing of the imputation pleaded in para 19(a). In my view, Mr Cater’s reference to the flood as a “man‑made” catastrophe, intervention” and “a man‑made disaster that should have been avoided but wasn’t” also provides a basis for the drawing of an imputation as to culpability by someone failing to take steps to avoid the collapse of the wall.

Further, the identification of the appellants as the owners of the quarry wall at the time of its collapse was, in my view, not only able to be understood as an assertion of ownership. Rather, in the context of assertions in the broadcast that the devastating flood was “a man‑made disaster that should have been avoided but wasn’t” and that Grantham deserved to know the truth about the “failings of men” that turned an act of God “deadly”, the identifying of the appellants as the owners of the wall at the time of the flood, who had refused to be interviewed, allowed the inference to be made that the appellants were culpable in being those whose failings had caused the flood to turn deadly and who had caused the man‑made catastrophic collapse of the wall that should have been, but was not, avoided by taking steps that should have been taken.

On a consideration of the broadcast as a whole, the imputation that the appellants caused the deaths in Grantham by failing to take steps that should have been taken to prevent the wall from collapsing and causing the catastrophic flood was not untenable. The threshold test as to whether an imputation is unarguably bad or manifestly hopeless is a high one. Whether the effect of the broadcast was to impute that steps should have been taken by the appellants to prevent the collapse of the wall was a question in respect of which reasonable minds could differ. In my view, the imputation struck out in paras 18(a) and 19 were not able to be characterised as so unarguable that they could not be made out and should not, therefore, have been struck out on that basis.

Para 18(c) of the appellants’ amended statement of claim

The appellants’ submissions

The appellants’ case in respect of the imputation alleged in para 18(c) was that, upon viewing the broadcast, the viewer was left with the impression that there was someone who could shed some light on matters and who could speak about how the man‑made disaster could have been avoided. It was submitted that the person or persons who could shed light on matters could only be the owners of the quarry at the time of the flood, the Wagner family. It could not be the relevant owner at the time the quarry wall was built (who is not mentioned and, in any case, the viewer is left to speculate that it may have in fact been the appellants) and it could not be the present owner, Boral. Importantly, it was the people who owned the quarry at the time of the flood, the appellants, who declined to speak about matters. It was argued that to decline was no different from (or from the perspective of the ordinary reasonable viewer no different from) “refusing” to be interviewed.

In the context in which that statement was made and when, considered in circumstances where the appellants were the only persons mentioned as having a connection to the quarry at the relevant time and no other person was mentioned (other than the current owner), the conduct of declining to be interviewed was as a matter of capacity and capable of being considered “disgraceful”. It also followed that, if the broadcast was capable of imputing to the appellants that they had failed to take steps to prevent the collapse of the quarry wall and the viewer was expressly told that the appellants had declined to be interviewed on the subject, the inference that such conduct was disgraceful was, as a matter of capacity, comfortably available.

The respondent’s submissions

The respondents observed that the appellants hitched this meaning to that part of the meaning at para 18(a) which relied upon an allegation of a failure to take steps. Accordingly, if, as the respondents argued that, meaning found no support in the broadcast, nor could the meaning pleaded in para 18(c).

The respondents alternatively submitted that the meaning at para 18(c) focused on an alleged failure to answer to the public, which suggested an obligation, or at least a request to do so in the first place, but the broadcast only stated that, at the time of the flood, the quarry was owned by the appellants who declined a “request for an interview about the quarry wall”. The respondents submitted that contrary to what was argued by the appellants, there were significant differences between declining a request for an interview and, as was pleaded, disgracefully refusing to answer to the public. Leaving aside the reference to disgracefully, to “refuse” to answer to the public suggested an obligation to do so in the first place. To decline, on the other hand, was not to take up an offer – something quite different.

Consideration

Given my view that the imputation that the appellants caused the catastrophic flood that turned deadly by failing to take steps that they should have, but did not, take to prevent the wall from failing was open and, bearing in mind also the finding by the primary judge, the imputation in para 18(b) that the appellants had “sought to conceal the truth from becoming known about the role [their] quarry played in causing the catastrophic flood that devastated Grantham” was also open, it cannot, in my view, be said that the imputation in para 18(c) is untenable. That the imputation was available is reinforced by assertions that the town needed to know the “truth” about how the flooding turned “deadly”, the suggestion of the resorting to secrecy in the obtaining of footage in the broadcast and the concerns voiced about the need to preserve the “now crumbled” quarry wall “could prove to be key evidence”. Given these factors, the imputation alleged in para 18(c) of the amended statement of claim was not incapable of arising.

In my view, the orders that should be made are that:The appeal is allowed.The orders of the primary judge striking out paras 18(a), 18(c) and 19(a) of the amended statement of claim are set aside.Unless the parties file submissions as to costs in accordance with Practice Direction 3 of 2013, paragraph 52(4), within 14 days of the publication of these reasons, the respondents are to pay the appellants’ costs of and incidental to the appeal and the application below.

McMURDO JA: I agree with Philippides JA.

Annexure A

Schedule of quotes from the matter complained of

.05 Grantham in Queensland was virtually washed off the map when record floods hit the town in 201 ... 12 people died. [Lines 1-4]

.12 Grief and trauma . . . remain raw. [Lines 4-5]

.18 Compounded by a cruel injustice. [Line 6]

.30 A quarry wall burst - sending a wall of water through Grantham. [Lines 10-11]

.38 It’s time the truth was finally known. [Lines 12-13]

.55 It’s hard to comprehend the scale of the disaster. [Lines 20-21]

1.04 Down below, 12 people had been swept to their deaths. [Lines 26-27]

1.20 [Mr Warburton] That day I seen a monster . [Line 32]

1.30 That monster: an enormous wall of water. [Line 33]

1.35 How do you describe that force? - Devastating. Destroying. [Lines 36-37]

1.45 Not just a freak flood - but a man-made catastrophe. [Lines 40-41]

1.58 [Mr Warburton] Armageddon come to town that day. [Line 45]

2.00 A controversial quarry wall. [Line 46]

2.05 [The Premier] What was the impact of the quarry wall? Where did the large volume of water come from? [Lines 47-48]

2.17 [Sixth defendant] A man-made disaster that should have been avoided but wasn’t. [Lines 52-53]

2.40 A monster wall of water sucked people from their homes. [Lines 57-58]

3.50 [Ms Keep] I had my baby girl in my arms and then she was taken from me. And I thought it was only me that was left. I thought everybody was gone. [Lines 81-83]

4.47 A collapsed quarry wall upstream released a devastating wall of water that engulfed the town. [Lines 92-94]

5.07 An inland tsunami unprecedented in nature. [Lines 99-100]

5.50 [Sixth defendant at quarry] Ground zero... Tremendous pressure, tremendous force. [Lines 114-117]

5.55 Wall of water coming from the quarry. [Lines 119]

6.05 [Sixth defendant at quarry] Catastrophic event was clearly the collapse of the quarry wall. [Lines 123-124]

6.15 Quarry wall breached like a burst dam... exploded in a giant wave. [Lines 125-127]

6.30 [Sixth defendant] It was man-made intervention, this was no act of God. [Lines 130-131]

6.36 Disused quarry is owned by Boral and is behind locked gates. This vision was shot in secret. [Lines 132-134]

6.40 At the time of the flood, the quarry was owned by one of Australia s wealthiest families, concrete giants, the Wagners, who declined our request for an interview about the quarry wall. (Hard-hat bearing the name Wagner lying on the ground). [Lines 136-139]

7.05 [Sixth defendant] it formed a barrier that stopped this massive volume of water taking its normal course along the river and it just built up behind it like a massive reservoir for more than an hour. [Lines 145-149]

7.35 The experts changed their mind, controversially concluding that the quarry wall might have actually helped Grantham... [Lines 153-155]

8.26 The Commission found that the devastating wall of water hit Grantham between 3:15 PM and 3:30 that disastrous afternoon... but... the flight logs reveal when the inland tsunami was unleashed on Grantham at least an hour after the Commission claimed. [Lines 169-177]

9.35 The missing hour... it matters because that’s when a lake of water was building up behind that quarry wall. It matters because this disaster was not just an act of God. [Lines 200, 202-205]

9.50 [Sixth defendant] If it hadn’t of [sic] been for the quarry wall I don’t think that 12 people would have died in the town that day. [Lines 206-210]

10.20 ... Independently commissioned a hydrology report for the Australian newspaper. As we’re standing here essentially an enormous dam wall just burst [standing at the quarry], [Lines 216-222]

10.29 It [the report] was scathing of the official findings regarding the timing and the size of the inland tsunami. The quarry wall was not 55 m long as claimed by the Commission but 260 m, therefore unleashing much more water and breaching in four distinct places, not just one. [Lines 224-229]

10.49 [Sixth defendant] ... When the wall burst it’s like a dam burst. This enormous volume of water just floods up with tremendous force just taking everything in its path... Whole houses demolished, one house exploded... It’s devastating. Nothing can survive. [Lines 230-239]

11.20 The moment that will forever haunt Stacy keep, the moment the wall of water took a daughter. [Ms Keep, grief-stricken] It’s a piece of my heart that is missing. I never get it back. [Lines 241-243]

11.45 New Queensland Premier Anastacia Palaszczuk has made finding the truth in Grantham a priority. [Lines 249-251]

13.00 ... Many still hold concerns, especially over the now crumbled quarry wall and what current owners, Boral, the cement giant, plan to do with it. Some locals fear that there may be movements very soon to try and dismantle what is left of it. It could prove to be key evidence. Can you give guarantees that that area won’t be touched while this enquiry is underway? [Lines 275-283]

13.20 [Ms Palaszczuk, Premier] Under no circumstances should that area be touched, and I would be extremely alarmed if that was the case... We need to ensure that no evidence is trampled with. [Lines 284-289]

13.50 This is a town that deserves to know how an act of God turned deadly due to the failings of men. This town deserves the truth. [Lines 291-294]

Footnotes

1. Wagner & Ors v Nine Network Australia & Ors (No 2) [2016] QSC 198. ↩

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

3. Wagner & Ors v Nine Network Australia & Ors (No 2) [2016] QSC 198 at [24]. ↩

4. Wagner & Ors v Nine Network Australia & Ors (No 2) [2016] QSC 198 at [25]-[27]. ↩

5. Wagner & Ors v Nine Network Australia & Ors (No 2) [2016] QSC 198 at [28]-[29]. ↩

6. Wagner & Ors v Nine Network Australia & Ors (No 2) [2016] QSC 198 at [40]-[41]. ↩

7. Wagner & Ors v Nine Network Australia & Ors (No 2) [2016] QSC 198 at [31]-[35]. ↩

8. Wagner & Ors v Nine Network Australia & Ors (No 2) [2016] QSC 198 at [36]-[38]. ↩

9. See para 17 of the appellants’ amended outline of argument. ↩

10. [2004] QCA 135. ↩

11. Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [6] per Gleeson CJ, McHugh, Gummow and Heydon JJ (footnotes omitted). ↩