Aggravated damages in Wagner v Nine Network Australia Pty Ltd
Each of the four Wagner brothers, who sued the publishers of a 60 Minutes broadcast regarding the 2011 Grantham flood that killed 12 people (the program), has been awarded considerable damages in the Supreme Court of Queensland: Wagner & Ors v Nine Network Australia Pty Ltd & Ors  QSC 284.
The Wagners issued proceedings against the corporate publishers of the program (collectively, the Nine Network defendants) and journalist Nick Carter.
The jury found that the program conveyed that the Wagners:
- caused the flood by failing to take steps to prevent a quarry wall on property which they owned from collapsing;
- 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
- 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.
The program was aired on 24 May 2015. The flood was the subject of two inquiries. The reports of both established the falsity of the allegations conveyed by the program. Notwithstanding those findings, the defendants initially pleaded defences of justification.
At trial, the falsity of the imputations was uncontested, and no substantive defences were advanced: the only question was whether or not the above meanings were in fact conveyed.
On 22 November 2019, Applegarth J awarded each of the plaintiffs damages of $600,000 against the Nine Network defendants, and $300,000 against Mr Cater (a total liability of $3.6M, plus interest). The judgment follows a previous award of damages to the Wagners in Wagner v Harbour Radio Pty Ltd (Harbour Radio), and the settlement of a further proceeding by the Wagners against the publishers of The Spectator.
The principal issue in the judgment was the aggravating conduct of the defendants both before and after publication. In particular:
- the way in which the Wagners were contacted prior to publication;
- failing to undertake necessary enquiries before broadcast;
- failing to include evidence inconsistent with the defendants’ theories in the program;
- failing to retract, correct, or apologise for the imputations conveyed at any stage.
Critically, the defendants did not give evidence. His Honour found the conduct of both the Nine Network defendants and Mr Cater justified an award of aggravated damages.
The defendants only contacted the Wagners about the program a few days before its scheduled broadcast, despite the story having been in preparation for some time. The defendants offered no explanation for why the Wagners were not approached earlier.
The Wagners were sent a letter inviting them to participate in an interview, but which ‘fell short of fairly and squarely putting to the Wagners the serious allegations contained in the proposed story’: . In response, the Wagners provided a statement and declined to participate in the interview due to the ongoing inquiry. Despite this, the program did not include any material from the Wagners’ statement, or even refer to the statement having been provided. On the contrary, the program simply referred to the Wagners having ‘declined our request for an interview’: .
This conduct occurred in circumstances where Nine had in its possession evidence both contradicting its central allegation against the Wagners, and contradicting their allegation that the Wagners were not cooperating with the inquiry. Applegarth J concluded that the failure to explain the circumstances and reasons behind the Wagners declining an interview, and the omission of any part of their statement, was unreasonable, unfair and unjustifiable in the circumstances: .
Failure to undertake necessary enquiries and disregard of inconsistent evidence
There was no evidence that the enquiries reasonably required to support the allegations against the Wagners had been made by the Nine Network defendants before the broadcast. His Honour described the carelessness of Nine Network as ‘extreme’: .
As to Mr Cater, his Honour found his failure to contact the Wagners regarding the allegations against them ‘extraordinary, given his role as a journalist’: . His Honour concluded the failure to make any inquiry of the Wagners was unreasonable, unjustifiable, and led to factual errors: . This, paired with the disregard of evidence which undermined Mr Cater’s theory, was unjustifiable or improper conduct, and warranted the award of aggravated compensatory damages: .
Failure to correct, retract or apologise
No correction, retraction or apology was ever issued before the return of the jury’s verdict. No evidence was given to explain the failure or refusal to do so. His Honour found this was particularly relevant at three stages in the proceeding.
First, when the second commission of inquiry released its report which absolved the Wagners and ‘demolished’ the defendants’ case: . The failure to apologise or retract at this stage was ‘unreasonable and unjustified’ : .
Second, after judgment was delivered in Harbour Radio and the defences of truth and honest opinion were withdrawn. The failure at this stage was described as ‘unjustified or improper’: . His Honour referred extensively to the availability of a ‘conditional’ () or ‘hypothetical apology’ () which would permit the defendants to apologise on a contingent basis not inconsistent with their defence, prior to the jury’s verdict: .
Third, upon the jury verdict. Shortly after the verdict, senior counsel for the defendant made what was said to be an apology in the following terms (at ):
Your Honour, the defendants wish to apologise to the Wagners. It was never the intention of the defendants to defame the Wagners, and it was certainly never their intention to convey the defamatory implications pleaded in this case. The defendants accept the jury have found the Wagners have been defamed and sincerely and unreservedly apologise to the Wagners for the broadcast and any hurt to their feelings it has caused.
His Honour found that the apology ‘was inadequate in its terms, its timing and its communication’: . It fell short of a clear and unconditional retraction of the proven imputations. It also suffered from what Applegarth J described as a ‘major deficiency’ – that it was not published on 60 Minutes, or another Nine Network program with a similar audience reach: .
Mr Carter’s post-publication conduct towards the Wagners was described as ‘miserable’ and ‘unjustifiable’: . This conduct included not admitting the extent of the errors made, not retracting the central allegations made in the program, and not apologising.
These failures increased the harm suffered by the Wagners.
His Honour found it unnecessary to find if Mr Cater was actuated by malice, but noted there was a substantial body of evidence that would support such a conclusion.
Further, his Honour was critical of the conduct of counsel for the defendants describing the Wagners as ‘precious or paranoid’ in their closing address; and of the defendants’ maintenance of the plea of justification throughout much of the proceeding. However, he declined to find that these matters, of themselves, justified an award of aggravated damages.
The judgment highlights the importance of taking appropriate steps prior to publication to ensure that allegations have a proper basis, and that the person the subject of allegations has an adequate opportunity to respond to them. Publishers who ignore evidence contradicting their preferred theories or desired story do so at their own risk.
The judgment also provides guidance regarding apologies and retractions. Publishers should:
- consider the availability of a conditional or hypothetical apology;
- apologise or retract at the earliest appropriate opportunity; and
- ensure any apology or retraction is published to the same, or a comparable audience.
Finally, it is notable that Justice Applegarth’s decision followed the principles laid down in Bauer Media Pty Ltd v Wilson.It remains to be seen whether or not the Bauer approach will survive in light of recently proposed amendments to s 35 of the Uniform Defamation Acts. If adopted, those amendments would have the effect of overriding the decision in Bauer and providing that:
- the statutory cap on non-economic damages should operate as a range rather than a cut off; and
- the cap may be exceeded if an award of aggravated damages is warranted, but any award of aggravated damages is to be made separately.
 Applegarth J observed that the defendants ‘appear to have simply copied and pasted the [failed] truth defences deployed by the defendants in a different action: Wagner v Harbour Radio Pty Ltd  QSC 201 .
 Counsel of Attorneys-General, Model Defamation Amendment Provisions 2020: Report of the Australiasian Parliamentary Counsel’s Committee (online, 12 November 2019) <https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/consultation-draft-of-mdaps.pdf>