In the case of Wagner & ors v Harbour Radio & ors ( QSC 201) the Supreme Court of Queensland awarded a record total of $3.7 million to four brothers over comments made by controversial broadcast Alan Jones in 27 radio broadcasts which conveyed 76 defamatory imputations in relation to the collapse of a dam wall at a quarry owned by the brothers during floods in 2011.
The plaintiffs were four brothers from regional Toowoomba in Queensland, Australia. Together they had built a very successful concrete, transport, quarry and steel business. They had also built and owned a public airport.
In 1994 the Plaintiffs purchased a large parcel of land of approximately 310 hectares at a location called Wellcamp, approximately 15 kilometres from Toowoomba.
In 1998 they also purchased a quarry in regional Grantham which , through a corporate entity, they managed until November 2011. In or about December 2011 Boral Ltd, a large construction company, purchased the Grantham quarry.
In 2012 after the sale of the Grantham quarry to Boral the plaintiffs decided to seek approval to have the Wellcamp site developed into a public airport. Construction commenced in 2013.
On 10 January 2011 , significant flooding occurred in the Lockyer Valley close to Grantham. It was a most disastrous event, the flood rising to 5 metres and resulting in twelve people losing their lives including young children.
The Grantham Flood led to a Government Inquiry on 17 January 2011 . Experts were called and the Inquiry was asked to examine the role, if any, the plaintiffs’ quarry had played in the disaster. It found that the quarry if anything mitigated the impact of flooding.
In May 2015 a second Inquiry commenced and it once again examined the role of the quarry. The second Inquiry also exonerated the plaintiffs and the role their quarry had played in the disaster.
Between 28 October 2014 and 20 August 2015 leading controversial Sydney radio 2GB shock-jock Alan Jones published made broadcasts of and concerning the role of the plaintiffs in the flood. Twenty seven of those broadcasts conveyed what the plaintiffs alleged were seventy-six defamatory imputations of and concerning them including that:
- The plaintiffs were responsible for the deaths in the Grantham Floods;
- Knowing their culpability the plaintiffs sought to cover up their involvement ;
- The plaintiffs were selfish and greedy in that they had illegally built the Wellcamp airport and stolen airspace from a nearby army base, thereby harming national defence interests;and
- The plaintiffs were able to construct the Wellcamp airport because they had a corrupt relationship with the Coalition Political party in Queensland and in the national political capital, Canberra.
2GB and Jones sought to defend the imputations on the basis of Truth/Justification and on the basis that the broadcasts were a Fair Report of the Grantham Floods Inquiry.
In a judgment handed down on 12 September 2018 ( QSC 201) Flanagan J found that the Defendants had committed the “gravest kind” of defamation by baselessly accusing the plaintiffs of “municipal murder” of the deceased , corruption and participating in a cover-up of the deaths
The Court made orders preventing Mr Jones from repeating the defamatory allegations against the plaintiffs.
Judge Flanagan also detailed how Jones and his lawyers blew any chance of settlement out of court by offering the “wholly inadequate” sum of $50,000 to each of the brothers.
Justice Flanagan said the reputational damage to the plaintiffs was greater than inflicted on actor Rebel Wilson (who recently was awarded damages of $4.5 m from magazine publisher Bauer Media, slashed on Appeal to $600,000). His Honour awarded the plaintiffs collectively damages of $3.75 m after judging Jones’ conduct to be “vicious and spiteful”. This sum literally burst through the stator cap of $398,500 on the basis of a significant award of additional/aggravated damages to each of the plaintiffs which has recently been held in this country to be outside the statutory cap (see Wilson v Bauer Media)
The judgment is now a record verdict in Australian defamation law and demonstrates that Australian Courts are now prepared to award massive payouts for hurt feelings and loss of reputation. In Wilson v Bauer the lions share of the original $4.5 m damages was for economic loss.
The case also demonstrates the danger broadcasters face by not reigning in outspoken “shock jocks” like Mr Jones. Despite appearing as a defendant in too many defamation cases to mention this was a case in which absolutely everything went “pear-shaped” for Mr Jones from the get-go. A more respectful offer to settle and apology may have been all that was needed?
The case is also particularly interesting because leading entertainment company Nine Entertainment is currently closing a merger with the owner of radio 2GB so any Appeal costs may land on its balance sheet .
A decision to appeal has not been made yet.
Stuart Gibson is a partner in the firm of Mills Oakley