Case Law, Australia: Wagner v Nine Network Australia PL, 60 Minutes indefensible defamation: $4 more million for the Wagner family – Justin Castelan

29 12 2019

Denis, John, Neill and Joe Wagner operated a quarry in Grantham in Queensland. In January 2011, there was a flood that devastated the town and killed 12 people. A Commission of Inquiry made findings that the disaster was a natural event and no human action caused it or could have prevented it – not much of a story, so the media persisted.

One man, Nick Cater had been working on the story for around two years. He had published articles, spoken to Alan Jones on radio and was to get himself on TV, promising Channel Nine:

“I can give you a good, colourful, descriptive grab if you like. You may have heard the stuff I’ve been saying on Alan Jones’ program”

He consistently claimed that the flood was a man-made disaster, caused by the failure of the quarry wall, behind which a huge flood of water had built, before the wall collapsed and a tsunami of water then swamped the town. According to him, the Wagners were responsible for the quarry wall. Sixty Minutes took up the cudgel to attack the Wagners and together they worked on a story that was scheduled to be broadcast on 24 May 2015.

On 21 May 2015, a TV blog was published that previewed the contents of the show. It stated:

The Missing Hour

12 people died in Grantham, Queensland when devastating floods tore through the town in January 2011. Dozens more people clung to their roofs, or were swept away before being rescued by helicopter. Locals have always maintained that a wall of water, which they describe as a monster, hit them with devastating impact and no warning. The only thing that could have caused that wall of water, was the collapse of a quarry wall, owned by one of Australia’s wealthiest families….

The day before, the Nine Network made their first contact with the Wagners purportedly seeking their comment, although they had been working on the story for weeks. They asked whether Dennis Wagner could travel to Brisbane or Sydney for an interview, although that was done after the Blog had published its promo – the story was set in stone. The Wagners declined because a second Inquiry was underway at the time. They did, however, provide a statement to Channel Nine on that day:

This is a very emotional issue for everyone involved. The Grantham flood was a natural disaster and a catastrophic event that no-one could have foreseen.

Like everyone in our small community, we have the deepest sympathies for people who lost loved ones in the flood.

Our family has been a part of this community for generations. We live and work in the region and our business head office is here. We understand the impact the 2011 floods have had on our community.

In regards to speculation concerning the quarry, which we operated at the time of the Grantham flood, the 2011 inquiry’s findings and the official SKM hydrology report determined the quarry did not cause or contribute to the flood.

We had all relevant government approvals in place during the time we operated the quarry. We did not make any adjustments or changes to the creek banks, they were part of the natural landscape at the time.

It will be up to the new inquiry to determine if there is any change to those findings and we will co-operate and assist wherever possible, particularly if it helps get some closure of these issues.

Denis Wagner, Director Wagners.”

The broadcast on Channel Nine went ahead on 24 May 2015 and began with this:

Grantham in Queensland was virtually washed off the map when record floods hit the town in 2011. In this small country community 12 people died. Four years on, the grief and trauma from that day remains raw and has been compounded by a cruel injustice. You see the official inquiry into those devastating floods got it wrong. It overlooked a crucial hour in its account of that devastating afternoon. An hour that explains what happened when a quarry wall burst sending a wall of water through Grantham. It is the missing hour and it’s time the truth is finally known.”

The tone and effect of the broadcast was extraordinary. There were images of the victims, including a young mother whose infant was taken from her arms by the force of the flood and died. It purported to be investigative journalism.

The story stated the following:

  • aerial vision from the Channel Nine helicopter and flight logs were said to “reveal when the inland tsunami was unleashed on Grantham at least an hour after the Commission claimed.” It described that as The Missing Hour;
  • the disaster was not just an act of God, but it turned deadly because of the failings of men; and
  • the Wagners declined their request for an interview about the quarry wall.

Not a single sentence from the Wagners’ statement appeared on the broadcast, nor was there any indication that they had provided any statement at all.

The Wagners issued defamation proceedings in the Queensland Supreme Court against Channel Nine and against Cater, for his role in the show. Although the defendants originally pleaded a defence of truth, at trial, the defendants did not claim that the broadcast was true and the only question for the jury was whether the broadcast conveyed the imputations alleged by the Wagners.

The jury found that the show conveyed the following imputations:

  • The Wagners caused a man-made disaster: the catastrophic flood which killed twelve people and destroyed the town of Grantham;
  • The Wagners sought to conceal the truth from becoming known about the role their quarry played in causing the catastrophic flood that devastated the town of Grantham; and
  • The Wagners disgracefully refused to answer to the public for their failure to take steps that they should have taken to prevent a quarry wall on property they owned from collapsing and causing the catastrophic flood that devastated the town of Grantham.

It was then for His Honour Justice Applegarth to assess the damages.  Judgment was handed down on 22 November 2019 (Wagner v Nine Network Australia PL & Ors [2019] QSC 284).

The first question was whether the conduct of the defendants aggravated the damages. His Honour emphatically concluded that their conduct had done so. On several fronts, His Honour concluded that their conduct was unjustifiable and improper. The instances included these.

Channel Nine Helicopter Logs

Much was made by the Nine Network of The Missing Hour. However, Channel 9’s chief pilot retrieved SkyTrack information that discredited the missing hour theory and that information was not retrieved until 2 June 2015, after the broadcast had already taken place on 24 May 2015. The defendants did not explain why they did not wait for this information to be retrieved or why it was never corrected.

Channel Nine and Cater were in possession of evidence that contradicted their theory about where the wave of water started

Cater had previously quoted an eyewitness of the flood, Graham Besley in The Australian, to have said that he “saw a wave of water coming overland….. from the Helidon direction behind the quarry.” When asked further, he stated that he saw it further back from behind the quarry, not at the quarry itself. This evidence contradicted the allegations contained in the broadcast, including Cater’s allegation that the water steadily built up behind the quarry wall, which then burst, causing a wall of water to escape and engulf Grantham.

Channel Nine had this transcript. Cater knew about it. He had emailed it to Channel Nine on 14 April 2015. Yet it was not referred to in the broadcast. His Honour concluded that this failure was unreasonable, improper and unjustifiable.

His Honour concluded:

The carelessness of the Nine Network defendants, in not verifying the truth of the central and serious allegation made in the program about the Wagners’ quarry is extreme…. I conclude that the Nine Network defendants’ lack of care in ascertaining the truth before publishing such a serious allegation about the Wagners’ quarry was unjustifiable or improper.”

Wagners’ refusal to be interviewed by Channel Nine or to co-operate with the inquiry

The program had been in preparation for several weeks and 60 Minutes had decided that the focus of the story was the quarry wall and its role in the flood. The Blog made that clear. However, the defendants’ first contact with the Wagners was a phone call that was four days before the broadcast, on 20 May 2015 and an email to them the following day.

This communication never put the serious allegation that the Wagners had caused a man-made disaster. The Wagners provided their statement on 21 May, but not a single sentence from it found its way onto the broadcast. Instead, the broadcast stated that the Wagners, one of Australia’s wealthiest families, declined a request for an interview. His Honour found that this failure by Channel Nine was unreasonable, unfair and unjustifiable.

Further, the Channel Nine journalist presenting the story, Michael Usher, had this exchange with the Queensland Premier:

MA:      Do you believe that the past owners of that site or the current owners should be on notice now to be open, to be truthful and to co-operate?

The Premier responded:

I believe from the public comments that I’ve seen from the past owners that they are more than willing to co-operate with the inquiry.

This was not broadcast either. Instead, Channel Nine broadcast a show that conveyed an imputation that the Wagners were seeking to conceal the truth from becoming known about their role in the flood. His Honour found that this was further unfair and unjustifiable conduct, and that Channel Nine had no proper basis for broadcasting the imputation, when as a matter of fact, it had material that suggested that the opposite was the case.

Hydrological evidence

At the time of broadcast, the Nine Network did not have any hydrological evidence which supported their allegations.

Channel Nine’s comment on Media Watch

In October 2015, the Grantham Flood Commission of Inquiry (GFCI), being the second inquiry, made findings that the flood was a natural disaster and that no human agency caused it or could have prevented it. Those findings contradicted “the truth” asserted by the Nine Network.

After the GFCI report, the ABC broadcast an item on Media Watch entitled “Getting it Wrong on Grantham”. It criticised the 60 Minutes broadcast and the radio programs of Alan Jones. The producers of 60 Minutes were invited to respond. The Executive Producer stated:

 “Mr Wagner was approached several times for interview, but repeatedly decided to hide behind his lawyers.”

That was false. His Honour essentially concluded that it was a deliberate attempt to diminish the standing of the Wagners. The comment was unjustifiable.

Failure to apologise

The GFCI report also concluded that the Wagners had been “unjustly blamed by some people” and “viciously blamed by some elements of the media and they should not have been.”

Despite the GFCI report, the initial Inquiry and then further findings made by Justice Flanagan in the Wagners’ previous successful defamation case against Radio 2GB in 2018, the defendants never apologised. His Honour referred to this failure as further unjustified and improper conduct.

It was only after the jury found that the imputations were conveyed, on 6 September 2019, that Senior Counsel for the Nine Network stood in Court and made a statement that the defendants characterised to be an apology. His Honour concluded it was too little, too late. Further, His Honour held that the Wagners were entitled to conclude that it was insincere, inadequate and ineffective. It was not broadcast on 60 Minutes.

Aggravation overall

Each of these items in their own right were held to constitute unjustifiable and improper conduct. His Honour then concluded that the conduct of the defendants aggravated the damages and further concluded that Cater was wilfully blind or unjustifiably obstinate in his opinion as well. Cater had failed to make any inquiries with the Wagners in the course of his years working on the matter and his interview with 60 Minutes was held to be part of a campaign by him to implicate the Wagners’ quarry as the cause of a man-made disaster which killed 12 people. His personal conduct also aggravated the damages suffered by the Wagners and his post-publication conduct was described as miserable.

Damages

In assessing damages, His Honour concluded that because the defendants had aggravated the damages, the statutory cap did not apply. The evidence of hurt feelings and damage to reputation for each of the plaintiffs was compelling. His Honour noted that their achievements to date were remarkable and they had succeeded in an extremely competitive business.

His Honour also noted the earlier defamation wins that the Wagners enjoyed against Radio 2GB and their settlement with The Spectator in the amount of $440,000 plus costs.

Overall, His Honour characterised the defamation as extremely serious and indefensible, where the defendants had allowed the effects of their indefensible defamations to last for four and a half years. His Honour awarded each of the Wagners $600,000 plus interest ($63,000) against the Nine Network defendants, (which would have been $400,000 non-economic loss reflecting the most serious kind of defamation and $200,000 aggravated damages) and $300,000 plus interest ($31,500) as against Cater.

In all, damages of $994,500 each and a total of $3,978,000.

Even on its own, this verdict is the largest ever award of damages in the history of defamation law in Australia, beating the Wagners’ previous record for their verdict against Radio 2GB. In total, the damages awarded to the Wagners in this case, plus against Radio 2GB of $3,755,000 and the further $440,000 plus costs in their settlement against The Spectator means that the Wagners have demolished all previous records – $8,173,000 plus costs in defamation damages.

That is not just “nail the lie” territory – more like wrecking ball destruction on these media defendants. As for Sixty Minutes, it probably wishes that this 2015 episode itself became a missing hour.

This post originally appeared on the Defamation Watch blog and is reproduced with permission and thanks


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