Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  •   Notable Unreported Decision

Wagner v Harbour Radio Pty Ltd

 

[2018] QSC 201

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201 

PARTIES:

DENIS WAGNER

(first plaintiff)
JOHN WAGNER
(second plaintiff)
NEILL WAGNER
(third plaintiff)
JOE WAGNER
(fourth plaintiff)

v

HARBOUR RADIO PTY LTD (ACN 010 853 317)

(first defendant)
ALAN BELFORD JONES
(second defendant)
RADIO 4BC BRISBANE PTY LTD (ACN 009 662 784)
(third defendant)
NICHOLAS CHARLES CATER
(fourth defendant)

FILE NO/S:

No 10830 of 2015

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 September 2018

DELIVERED AT:

Brisbane

HEARING DATES:

30 April-4 May, 8-11 May, 14-15 May, 17-18 May, 2125 May, 28-30 May, 13-14 June 2018.  Further written submissions 15 June 2018.

JUDGE:

Flanagan J

ORDERS:

(a)  First Plaintiff

       As against the first defendant and second defendant

1. It is ordered that the first and second defendants pay to the first plaintiff damages for defamation in the sum of $750,000 plus interest in the amount of $78,102.74 for the publications pleaded at paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018.

       As against the second defendant and the third defendant

2. It is ordered that the second defendant and the third defendant pay to the first plaintiff damages for defamation in the sum of $100,000 plus interest in the amount of $10,643.84 for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April 2018.

Injunction

3. The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published:

  1. (a)
    any of the 27 matters complained of in paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and
  2. (b)
    any of the imputations in Attachment 35 to these Reasons of and concerning the first plaintiff, or any imputation that does not differ in substance to any of those imputations.

4. The second defendant is permanently restrained, by himself and/or his servants or agents, from publishing or causing to be published:

  1. (a)
    any of the 29 matters complained of in paragraphs 10, 13, 16, 22, 26, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and
  1. (b)
    any of the imputations in Attachment 35 to these Reasons of and concerning the first plaintiff, or any imputation that does not differ in substance to any of those imputations.

5. The third defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published:

  1. (a)
    any of the 2 matters complained of in paragraphs 22 and 26 of the amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and
  1. (b)
    any of the imputations in Attachment 35 to these Reasons of and concerning the first plaintiff, or any imputation that does not differ in substance to any of those imputations.

(b)  Second Plaintiff

       As against the first defendant and second defendant

6. It is ordered that the first and second defendants pay to the second plaintiff damages for defamation in the sum of $750,000 plus interest in the amount of $78,102.74 for the publications pleaded at paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018.

       As against the second defendant and the third defendant

7. It is ordered that the second defendant and the third defendant pay to the second plaintiff damages for defamation in the sum of $100,000 plus interest in the amount of $10,643.84 for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April 2018.

Injunction

8. The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published:

  1. (a)
    any of the 27 matters complained of in paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and
  1. (b)
    any of the imputations in Attachment 35 to these Reasons of and concerning the second plaintiff, or any imputation that does not differ in substance to any of those imputations.

9. The second defendant is permanently restrained, by himself and/or his servants or agents, from publishing or causing to be published:

  1. (a)
    any of the 29 matters complained of in paragraphs 10, 13, 16, 22, 26, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and
  1. (b)
    any of the imputations in Attachment 35 to these Reasons of and concerning the second plaintiff, or any imputation that does not differ in substance to any of those imputations.

10. The third defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published:

  1. (a)
    any of the 2 matters complained of in paragraphs 22 and 26 of the amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and
  1. (b)
    any of the imputations in Attachment 35 to these Reasons of and concerning the second plaintiff, or any imputation that does not differ in substance to any of those imputations.

(c)  Third Plaintiff

       As against the first defendant and second defendant

11. It is ordered that the first and second defendants pay to the third plaintiff damages for defamation in the sum of $750,000 plus interest in the amount of $78,102.74 for the publications pleaded at paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018.

       As against the second defendant and the third defendant

12. It is ordered that the second defendant and the third defendant pay to the third plaintiff damages for defamation in the sum of $100,000 plus interest in the amount of $10,643.84 for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April 2018.

Injunction

13. The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published:

  1. (a)
    any of the 27 matters complained of in paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and
  1. (b)
    any of the imputations in Attachment 35 to these Reasons of and concerning the third plaintiff, or any imputation that does not differ in substance to any of those imputations.

14. The second defendant is permanently restrained, by himself and/or his servants or agents, from publishing or causing to be published:

  1. (a)
    any of the 29 matters complained of in paragraphs 10, 13, 16, 22, 26, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and
  1. (b)
    any of the imputations in Attachment 35 to these Reasons of and concerning the third plaintiff, or any imputation that does not differ in substance to any of those imputations.

15. The third defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published:

  1. (a)
    any of the 2 matters complained of in paragraphs 22 and 26 of the amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and
  1. (b)
    any of the imputations in Attachment 35 to these Reasons of and concerning the third plaintiff, or any imputation that does not differ in substance to any of those imputations.

(d)  Fourth Plaintiff

       As against the first defendant and second defendant

16. It is ordered that the first and second defendants pay to the fourth plaintiff damages for defamation in the sum of $750,000 plus interest in the amount of $78,102.74 for the publications pleaded at paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018.

       As against the second defendant and the third defendant

17. It is ordered that the second defendant and the third defendant pay to the fourth plaintiff damages for defamation in the sum of $100,000 plus interest in the amount of $10,643.84 for the publications pleaded at paragraphs 22 and 26 of the second further amended statement of claim filed on 30 April 2018.

Injunction

18. The first defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published:

  1. (a)
    any of the 27 matters complained of in paragraphs 10, 13, 16, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and
  1. (b)
    any of the imputations in Attachment 35 to these Reasons of and concerning the fourth plaintiff, or any imputation that does not differ in substance to any of those imputations.

19. The second defendant is permanently restrained, by himself and/or his servants or agents, from publishing or causing to be published:

  1. (a)
    any of the 29 matters complained of in paragraphs 10, 13, 16, 22, 26, 29, 32, 35, 38, 41, 50, 53, 56, 58, 61, 66, 69, 72, 78, 84, 87, 89, 93, 95, 97, 101, 103, 106 and 109 of the second further amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and
  1. (b)
    any of the imputations in Attachment 35 to these Reasons of and concerning the fourth plaintiff, or any imputation that does not differ in substance to any of those imputations.

20. The third defendant is permanently restrained, by itself and/or its servants or agents, from publishing or causing to be published:

  1. (a)
    any of the 2 matters complained of in paragraphs 22 and 26 of the amended statement of claim filed on 30 April 2018 in these proceedings or matters substantially to the same effect as those matters complained of; and
  1. (b)
    any of the imputations in Attachment 35 to these Reasons of and concerning the fourth plaintiff, or any imputation that does not differ in substance to any of those imputations.

(e)  First, Second, Third and Fourth Plaintiffs

21. The plaintiffs’ claims against the fourth defendant are dismissed.

22. I will hear the parties as to costs.

CATCHWORDS:

DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – PARTICULAR STATEMENTS – IMPUTATIONS – where the plaintiffs sue in respect of 32 separate matters, the majority of which are radio broadcasts – where the defendants admit that they published, or were responsible for the publication of, the 32 matters complained of – where the plaintiffs allege that these publications give rise to 98 defamatory imputations – where the alleged imputations primarily concern the plaintiffs’ role in the Grantham Floods of 2011, and the plaintiffs’ construction of Wellcamp Airport – where the action was tried by a judge sitting alone – whether the alleged imputations are conveyed – whether the alleged imputations are of and concerning the plaintiffs – whether the alleged imputations are defamatory of the plaintiffs

DEFAMATION – DEFENCES – JUSTIFICATION – TRUTH – SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH – FAIR REPORT – MATTER OF PUBLIC INTEREST – OTHER DEFENCES – where the defendants seek to establish defences of substantial truth, contextual truth, and fair report of proceedings of public concern – where the defendants prior to trial extended to the plaintiffs a written offer to make amends – where the defendants plead that the plaintiffs’ failure to accept that offer constitutes a further defence pursuant to s 18 of the Defamation Act 2005 (Qld) – whether the imputations are defensible on any of the pleaded grounds – whether the defendants’ offer to make amends was, in all the circumstances, reasonable

DAMAGES – GENERAL DAMAGES – ASSESSMENT – SPECIAL MATTERS – AGGRAVATION – where the plaintiffs claim an award of damages in a single sum pursuant to s 39 of the Defamation Act 2005 (Qld) – where the plaintiffs seek general and aggravated damages – where the plaintiffs’ claim for aggravated damages rests partly on the defendants’ publication of 53 additional radio broadcasts, all of which    pre-date the broadcasts complained of in the present proceedings – whether the plaintiffs may rely on these prior broadcasts for the purposes of aggravation – whether the prior broadcasts evidence malice on the part of the second defendant

DAMAGES – GENERAL DAMAGES – ASSESSMENT – SPECIAL MATTERS – AGGRAVATION – where s 35 of the Defamation Act 2005 (Qld) places a statutory cap on damages for non-economic loss – where the section further provides that the cap may be exceeded if, and only if, a court finds an award of aggravated damages is warranted – whether, even where such a finding is made, the cap remains a relevant factor in a court’s assessment of damages

DAMAGES – GENERAL DAMAGES – ASSESSMENT – SPECIAL MATTERS – MITIGATION – where the plaintiffs have commenced two separate defamation actions in addition to the present proceedings – where the plaintiffs have settled one of those actions – where the other remains on foot – where the defendants plead that the imputations alleged in the two additional proceedings have the same meaning or effect as those forming the subject of the present proceedings – whether the additional proceedings function to mitigate any damages awarded pursuant to s 38 of the Defamation Act 2005 (Qld)

Defamation Act 2005 (Qld), s 3, s 8, s 18, s 25, s 26, s 29, s 34, s 35, s 38, s 39

Uniform Civil Procedure Rules 1999 (Qld), r 428, r 429A

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; [1998] NSWSC 4, followed

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15, applied

Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263, cited

Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154, applied

Bristow v Adams [2012] NSWCA 166, cited

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31, followed

Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89; [2014] QCA 33, applied

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37, applied

Collins Stewart Ltd & Anor v The Financial Times Ltd (No 2) [2005] EWHC 262 (QB), considered

Curistan v Times Newspapers Ltd [2009] 2 WLR 149; [2008] EWCA Civ 432, considered

David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50, cited

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, cited

Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77, cited

Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329, cited

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, applied

Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52, applied

Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822, cited

Hallam v Ross (No 2) [2012] QSC 407, cited

Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; (2015) 332 ALR 257; [2015] FCA 652, cited

Hough v London Express Newspaper Ltd [1940] 2 KB 507, considered

Howden v Truth & Sportsman Ltd (1937) 58 CLR 416; [1938] ALR 208; [1937] HCA 74, applied

John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364, cited

John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205, applied

John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; [2003] HCA 50, cited

Jones v E Hulton & Co [1909] 2 KB 444, cited

Jones v Skelton (1963) 37 ALJR 324; [1963] 1 WLR 1362; [1963] UKPC 29, cited

Lee v Wilson & Mackinnon (1934) 51 CLR 276; [1935] ALR 51; [1934] HCA 60, cited

Lewis v Daily Telegraph Ltd [1964] AC 234, cited

Ley v Hamilton (1935) 153 LT 384, cited

Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147, cited

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited

McAlpine v Bercow [2013] EWHC 1342 (QB), cited

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; [1982] HCA 50, considered

Morgan v Odhams Press Ltd [1971] 1 WLR 1239, applied

Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19; [2017] QCA 70, applied

Nixon v Slater & Gordon (2000) 175 ALR 15; [2000] FCA 531, cited

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485; [1980] HCA 1, applied

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16, applied

Rayney v The State of Western Australia [No 9] [2017] WASC 367, applied

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52, applied

Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, followed

Triggell v Pheeney (1951) 82 CLR 497; [1951] ALR 453; [1951] HCA 23, applied

Universal Communication Network Inc trading as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd & Chan [2008] NSWCA 1, cited

Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50, considered

Wilson v Bauer Media Pty Ltd [2017] VSC 521, considered

Wright v Caan [2011] EWHC 1978 (QB), cited

Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283, applied

COUNSEL:

TD Blackburn SC with PJ McCafferty for the plaintiffs

RJ Anderson QC with R De Luchi for the defendants

SOLICITORS:

Corrs Chambers Westgarth for the plaintiffs

Banki Haddock Fiora for the defendants

Table of Contents

Introduction

The issues

Background

The First Matter

Second Matter

Third Matter

Fifth Matter

Sixth Matter

Seventh Matter

Eighth Matter

Ninth Matter

Tenth Matter

Eleventh Matter

Mr Cater’s liability

Twelfth Matter

Fourteenth Matter

Fifteenth Matter

Sixteenth Matter

Seventeenth Matter

Eighteenth Matter

Nineteenth Matter

Twentieth Matter

Twenty-First Matter

Twenty-Second Matter

Twenty-Third Matter

Twenty-Fourth Matter

Twenty-Fifth Matter

Twenty-Sixth Matter

Twenty-Seventh Matter

Twenty-Eighth Matter

Twenty-Ninth Matter

Thirtieth Matter

Thirty-First Matter

Thirty-Second Matter

Thirty-Third Matter

Thirty-Fourth Matter

Conclusion – Imputations Conveyed

Defence of substantial truth or justification – section 25 of the Act

Category 1 – the plaintiffs’ responsibility for the role played by the quarry in the Grantham Flood event

The expert evidence

(a)   Dr Smart

(b)   Dr Maroulis

(c)   Mr Dam

(d)   Dr Newton

(e)   The eyewitnesses

(f)   Conclusion – Truth Defence – Category 1

Category 2 – the plaintiffs engaged in conduct designed to cover up the role played by them and the quarry in the Flood event

Category 3 – the plaintiffs were involved in bullying and intimidation

Category 4 – the plaintiffs constructed and operated the Wellcamp Airport in breach of all the rules

(a)   No approvals obtained under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (“the EPBC”).

(b)   Public criticism and formal objections

(c)   Expert town planning evidence

Category 5 – the plaintiffs are self-interested and greedy

Defence of fair report of proceedings of public concern – section 29 of the Act

Defence of contextual truth – section 26

Failure to accept reasonable offer to make amends – section 18

Damages

A single sum – section 39

The plaintiffs’ claim for damages

(a)   General damages – principles

(b)   Aggravated damages – principles

(c)   The plaintiffs’ reliance on 53 prior broadcasts

(d)   Section 35 – statutory cap

General Damages

(a) The plaintiffs’ reputations

(b) Extent of publication

(c) Seriousness of the imputations

(d) Hurt to feelings

Aggravated damages

(a) Unjustifiable conduct

(i)   Circumstances of the Publications

(ii)  Conduct of the proceedings

(b) Mr Jones’ motive to injure the plaintiffs’ reputations

(c) Increased harm to the plaintiffs’ feelings and reputations

Mitigation

Assessment of Damages

Interest

Injunction

Disposition

(a) First Plaintiff

As against the first defendant and second defendant

As against the second defendant and the third defendant

Injunction

(b) Second Plaintiff

As against the first defendant and second defendant

As against the second defendant and the third defendant

Injunction

(c) Third Plaintiff

As against the first defendant and second defendant

As against the second defendant and the third defendant

Injunction

(d) Fourth Plaintiff

As against the first defendant and second defendant

As against the second defendant and the third defendant

Injunction

(e) First, Second, Third and Fourth Plaintiffs

ADDENDUM

Attachment 1

Attachment 2

Attachment 3

Attachment 5

Attachment 6

Attachment 7

Attachment 8

Attachment 9

Attachment 10

Attachment 11

Attachment 12

Attachment 14

Attachment 15

Attachment 16

Attachment 17

Attachment 18

Attachment 19

Attachment 20

Attachment 21

Attachment 22

Attachment 23

Attachment 24

Attachment 25

Attachment 26

Attachment 27

Attachment 28

Attachment 29

Attachment 30

Attachment 31

Attachment 32

Attachment 33

Attachment 34

Attachment 35

Imputations Conveyed

Introduction

  1. [1]
    The plaintiffs are four brothers from Toowoomba who, since 1989, have built a highly successful business.  They sue in defamation in respect of 32 publications.  The publications, with one exception,[1] are radio broadcasts which aired between 28 October 2014 and 20 August 2015. 
  2. [2]
    The second defendant, Alan Jones, has been a public broadcaster on radio since 1985. He has mainly worked on AM radio, utilising a talkback format as well as broadcasting opinion pieces.[2]  He presents a daily program titled “The Alan Jones Breakfast Show” (“the Jones Program”).  This program is broadcast and published by the first defendant, Harbour Radio Pty Ltd, on radio station 2GB and the 2GB website.  The first defendant is the licensee of 2GB (“2GB”).
  3. [3]
    The third defendant, Radio 4BC Brisbane Pty Ltd, is the licensee of radio station 4BC and the broadcaster and publisher of “The Alan Jones Hour” program on 4BC and the 4BC website (“4BC”).  This program is a one-hour edit of the highlights from the Jones Program.[3]
  4. [4]
    The fourth defendant, Nicholas Cater, is a journalist and an occasional guest of Mr Jones on the Jones Program. 
  5. [5]
    As to the 32 matters complained of, it is not in issue that the defendants published or were responsible for publishing one or more of the matters:
  1. (a)
    2GB admits that it is responsible for the publication of each of the matters with the exception of the Fifth and Sixth Matters, which are the broadcasts of the Alan Jones Hour by 4BC on 24 February 2015 and 26 February 2015;[4]
  1. (b)
    Mr Jones admits he published each of the 32 matters complained of;[5]
  2. (c)
    4BC admits that it is responsible for the publication of the Fifth and Sixth Matters;[6] and
  3. (d)
    Mr Cater admits publication of the words attributed to him in the Eleventh Matter.[7] 

The issues

  1. [6]
    The publication of each of the 32 matters complained of constitutes a separate cause of action[8] requiring independent consideration.[9]
  2. [7]
    On 10 October 2017, Applegarth J granted the plaintiffs’ application for the proceeding to be tried without a jury.[10]  As observed by his Honour, that application was “founded upon the multiplicity and complexity of the issues in the proceeding”.[11]  In order to refine and confine the many issues in this case, the parties were directed to file an agreed list of issues.  The final (and shorter)[12] version of this document, entitled “Issues for Determination”, was filed on 4 June 2018.  The relevant issues are identified in respect of each of the 32 matters complained of.  The 32 publications are alleged to give rise to 98 defamatory imputations.  While it is possible to group some of the imputations, it is necessary to consider in respect of each matter whether, in its natural and ordinary meaning, it conveyed the pleaded imputations (or any imputation which is not substantially different).  In relation to three of the matters complained of,[13] the plaintiffs rely on the extrinsic fact of earlier broadcasts by Mr Jones.
  3. [8]
    Typically, apart from deciding whether the imputations are conveyed, the issues to be determined include the following:
  1. whether the matter is of and concerning the plaintiffs;[14]
  1. whether the imputations, if conveyed, are defamatory;[15]
  1. whether, if any of the imputations are conveyed, they are substantially true within the meaning of s 25 of the Defamation Act 2005 (Qld) (“the Act”);[16]
  1. whether the defence of contextual truth under s 26 of the Act is available.[17]  This gives rise to the following sub-issues:
  1. (a)
    did the relevant matter carry, in addition to the defamatory imputations of which the plaintiffs complain, the following contextual imputations:
  1. (i)
    the plaintiffs conduct business on their own terms, with disregard for the laws that regulate them; and
  1. (ii)
    the plaintiffs conduct business on their own terms, with disregard for the impact operations have on the broader community;
  1. (b)
    are the contextual imputations, if conveyed, substantially true;
  1. (c)
    did the imputations proved by the plaintiffs to be defamatory not cause further harm to them because of the substantial truth of the contextual imputations;
  1. whether the defence of fair report of proceedings of public concern under s 29 of the Act is available.[18]  This gives rise to the following sub-issues:
  1. (a)
    was the relevant matter a fair report (or contained within a fair report) of a proceeding of public concern; and
  1. (b)
    if the relevant matter was (or was contained within) a fair report of a proceeding of public concern, was it published honestly for the information of the public.
  1. [9]
    There are two further issues to be determined:
  1. whether the defendants are entitled to a defence to the proceeding under s 18 of the Act, on the basis that the plaintiffs failed to accept a reasonable offer to make amends made on 27 November 2015. This gives rise to the following subissues:
  1. (a)
    did the defendants make an offer to make amends as soon as practicable after becoming aware that the matters were or may be defamatory; and
  1. (b)
    was the offer reasonable in all the circumstances;
  1. the assessment of damages, including whether the plaintiffs are entitled to aggravated damages and whether there are mitigating factors.
  1. [10]
    On the first day of trial, the defendants applied for, and were granted leave to file, a fourth further amended defence.  The plaintiffs did not oppose this application.  The amendments were substantial in that there were changes both to the number and nature of the defences raised and also to some of the facts relied on in relation to the truth defence.  First, the defence of fair comment at common law previously pleaded in paragraph 143 was deleted.  Also deleted was the qualified privilege defence under s 30 of the Act and at common law including as to government and political matters.  To establish a defence of qualified privilege under s 30 of the Act, the defendants would have been required to prove that their conduct in publishing the matters complained of was reasonable in the circumstances.[19]  This is no longer an issue in the proceeding.
  2. [11]
    The defendants also no longer seek to justify certain alleged defamatory imputations.  This includes a serious alleged imputation that the plaintiffs conspired with the then Deputy Prime Minister, Warren Truss, and Barnaby Joyce, to cover up the plaintiffs’ culpability for the deaths of people in the Grantham flood disaster.[20] 
  3. [12]
    On the final day of the trial, the defendants also abandoned the defence of honest opinion under s 31 of the Act.[21]

Background

  1. [13]
    The plaintiffs were all born and grew up in Toowoomba.  Each is married with four children.  Their father, Henry Wagner, conducted a concrete quarry, stone masonry and earthmoving business based in Toowoomba.  The stone masonry business was established as early as 1896.
  2. [14]
    In 1989, a business, generally known as Wagners, was established, initially by Denis Wagner, John Wagner, Neill Wagner and their father.  Each held a 25 per cent shareholding in the business.  Henry Wagner held his shareholding on trust for the fourth plaintiff, Joe Wagner.  He has worked in the business since 1991 and became an owner in 2006 when his father retired.
  3. [15]
    The business commenced in a relatively small way as a concrete transport and quarry business but rapidly grew.  The plaintiffs have expanded the business into areas such as composite fibre products, reinforced steel, concrete crushing and a public airport.
  4. [16]
    As part of the quarry business, the plaintiffs, through Wagner Investments Pty Ltd, purchased a quarry at Grantham in November 1998.  Up until about November 2011, the quarry was managed and operated by another Wagner entity.  In August/September 2010, the plaintiffs commenced negotiating with Boral Ltd for the sale of Wagners’ concrete and quarry business.  These negotiations included four quarries, one of which was the Grantham quarry.[22]  The sale transaction was completed on 8 December 2011.[23]  Denis Wagner was primarily responsible for Wagners’ concrete and quarry business.
  5. [17]
    In 1994, the plaintiffs purchased a large parcel of land (310 hectares) at Toowoomba Cecil Plains Road, Wellcamp.  The Wellcamp site is approximately 15 kilometres to the east of Toowoomba.  The Oakey Army Aviation Centre is located approximately 16 kilometres to the north-west.[24]
  6. [18]
    In 2001, Dr David Pascoe and Heather Brown purchased land across the road from the Wellcamp site.  Their land is approximately 81 hectares and is operated as a thoroughbred horse stud called Plaintree Farms.  Ms Brown formerly worked as a journalist for The Australian.  She has known Mr Jones since about 1988.  They would socialise together and generally remain in touch.[25] 
  7. [19]
    In 2012, after the sale to Boral Ltd was completed, the plaintiffs decided to seek approval to have the Wellcamp site developed into a public airport.  John Wagner was primarily responsible for obtaining town planning consents for the airport.  Denis Wagner was responsible for the actual construction of the airport.[26]  Construction on the airport commenced in 2013.
  8. [20]
    On 10 January 2011, significant flooding occurred in the Lockyer Valley.  A comparison of historical event hydrographs shows that the January 2011 flood was an exceptional event.  The peak flood level at Helidon was about five metres higher than any other historical flood since 1974 and the rate of rise was at least four times faster.[27]  The flooding in and around Grantham on 10 January 2011 was significantly different from previous floods.  Many eyewitness reports describe rapidly rising floodwater.  The flooding in Grantham resulted in 12 people, including young children, tragically losing their lives through drowning (“the Grantham Flood event”).
  9. [21]
    At the time of the Grantham Flood event Mr Cater was the acting editor of The Australian.  He made a number of visits to Grantham after the January 2011 floods.  He subsequently visited Grantham six times between late 2013 and 2015.[28]  On these visits, he spoke to a number of local residents who had witnessed the Grantham Flood event.
  10. [22]
    Mr Jones became involved in the flood relief effort in Queensland shortly after 10 January 2011.  During this period he was contacted by a number of Grantham residents who were present at the Grantham Flood event.  Mr Jones was born and raised in the Toowoomba region and feels a particular affinity with the area.[29]
  11. [23]
    The Grantham Flood event occurred in the context of wider disastrous flooding across Queensland.  This led to the establishment, on 17 January 2011, of the Commission of Inquiry into the Queensland Floods of 2010-2011.  Justice Holmes (as her Honour then was) was appointed as Commissioner to head the inquiry (“the Queensland Floods Inquiry”).
  12. [24]
    The Queensland Floods Inquiry engaged Dr Phillip Jordan, hydrologist, to undertake modelling and provide his opinion as to the role, if any, that the quarry played in the flooding in Grantham.  Dr Jordan’s second report concluded, and the Queensland Floods Inquiry accepted, that:
  1. (a)
    the quarry mitigated the impact of flooding by reducing peak flood levels by between 0.04 and 0.1 metres;
  1. (b)
    peak flood velocities in Grantham were not affected;
  2. (c)
    the quarry attenuated the flows, causing a five-minute delay in the water rise; and
  3. (d)
    at some other locations, the existence of the quarry elevated flood levels slightly including by 0.3 metres upstream of the breach, and by 0.04 metres near Dorrs Road, east of the quarry.[30]
  1. [25]
    The Grantham Flood event was the subject of a second Commission of Inquiry (“the Grantham Floods Inquiry”). On 11 May 2015, Walter Sofronoff QC (as his Honour then was) was appointed to investigate:
  1. (a)
    the flooding of the Lockyer Creek between Helidon and Grantham on 10 January 2011, with specific reference to any natural or man-made features of the landscape which could have altered or contributed to the flooding;
  2. (b)
    whether the existence or breach of the Grantham quarry caused or contributed to the flooding at Grantham;
  3. (c)
    whether the existence or breach of the Grantham quarry had a material impact on the damage caused by the flooding at Grantham;
  4. (d)
    whether the breach of the Grantham quarry had implications for evacuation of Grantham; and
  5. (e)
    how these matters were first investigated and how eyewitness accounts were dealt with, particularly by state government agencies and emergency services.[31]
  1. [26]
    Mr Sofronoff QC presented his report on 7 October 2015 after extensive public hearings, at which numerous residents of Grantham gave evidence of what they experienced in the course of the Grantham Flood event.  Additionally, a number of experts in hydrology and hydraulics were called.  The conclusions of the Grantham Floods Inquiry were relevantly as follows:
  1. (a)
    Grantham flooded on 10 January 2011 in the way that it did because of the combination of the volume of water that surged down Lockyer Creek that afternoon and the natural shape of the land near Grantham;
  2. (b)
    the first stage of the flooding was not a surprise to the residents.  Sandy Creek had not infrequently flooded the town in the past when the Lockyer Creek rose;
  3. (c)
    the second stage of the flooding was a consequence of the Lockyer Creek rising to a sufficient level that it broke its banks to the south-west of Grantham.  That required a significant surge of water down the Lockyer Creek.  That surge was caused by the rain that had been dumped in the upper catchment of the Lockyer Creek earlier in the afternoon into a saturated catchment.  The only effect of the quarry on this second stage of the flood was to slightly delay its commencement by up to a few minutes because the quarry pit briefly absorbed part of the flow;
  4. (d)
    the third stage of the flooding was due to Lockyer Creek rising in the U-shaped bend to the point where it overtopped Quarry Access Road and water was then funnelled by a natural channel towards Grantham to the east.  This flow took the residents of Grantham by surprise and dramatically exacerbated the already dangerous flooding of the town.  As with the flow from the south, the only effect of the quarry on this second stage of the flooding was to delay its commencement by up to a few minutes while the quarry pit absorbed part of the flow coming down the Lockyer Creek and so delay of the moment at which the waters overtopped Quarry Access Road;
  5. (e)
    quarry or no quarry, if there is ever another sudden dump of water in the upper catchment of the Lockyer Creek of the order of that which fell on 10 January 2011, the same thing will happen again.[32]
  1. [27]
    It is necessary to refer to both the Queensland Floods Inquiry and the Grantham Floods Inquiry by way of background, because the findings of both Inquiries and the establishment of the Grantham Floods Inquiry were the subject of discussion by Mr Jones in a number of the matters complained of and by Mr Cater in the Eleventh Matter complained of.
  2. [28]
    The 32 matters complained of broadly concern two subjects.  The first is the role played by the quarry in the Grantham Flood event.  The second is the legality and propriety of the approval processes undertaken by the plaintiffs in developing the airport at Wellcamp.

The First Matter

  1. [29]
    The First Matter was broadcast on radio 2GB on 28 October 2014 commencing at approximately 8.12 am.
  2. [30]
    Attachment 1 to these Reasons is a transcript of the words spoken by Mr Jones.[33]
  3. [31]
    2GB and Mr Jones admit that the First Matter was of and concerning each of the plaintiffs.[34]
  4. [32]
    It is in issue whether the imputations are conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    orchestrated with others a high-level cover-up of involvement in the deaths of people at Grantham, in order to avoid being held to account for those deaths, and to protect his financial interests; and
  2. (b)
    had plenty to hide in connection with the deaths of people at Grantham and in concert with others was knowingly involved in a high-level cover-up to ensure that his culpability for those deaths was never investigated.[35]
  1. [33]
    The parties are agreed as to the principles to be applied in determining the natural and ordinary meaning of the words.  These principles are well established.  The natural and ordinary meaning of the words complained of is the meaning which an ordinary listener would give to the words.  The Court must therefore assume the role of the ordinary reasonable listener.  The relevant question is whether the ordinary reasonable listener would have understood the matters complained of in the defamatory sense pleaded.[36]  This is not simply the literal meaning of the words, but also extends to any implied or inferred or indirect meanings.[37]  No evidence is admissible on the issue of meaning.  It is to be determined objectively, by reference to the hypothetical construct of the ordinary reasonable listener, who is taken to glean the single natural and ordinary meaning of each distinct charge conveyed by the broadcast.  The meaning that a defendant intended to convey is irrelevant.  So too is the manner in which the publication was actually understood.[38]  How the ordinary reasonable listener determines meaning is “a matter of impression”.[39]
  2. [34]
    The relevant principles, including the attributes and characteristics of the ordinary reasonable listener, were identified by Hunt CJ at CL in Amalgamated Television Services Pty Ltd v Marsden[40] as follows:
  1. (a)
    the ordinary reasonable reader is a person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for a scandal;
  2. (b)
    that person does not live in an ivory tower but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs;
  3. (c)
    the mode or manner of publication is a material matter in determining whether the imputation is conveyed;
  4. (d)
    the more sensational a publication, the less likely it is that the ordinary reasonable person will read it with the degree of analytical care which may otherwise have been given to a less sensational publication;
  5. (e)
    the ordinary reasonable person considering such a publication is understandably prone to engage in a certain amount of loose thinking;
  6. (f)
    a wide degree of latitude is given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual;
  7. (g)
    these considerations, and more, apply to matter published in a transient form, particularly in the electronic media; the reader of a written document has the opportunity to consider or to re-read the whole document at leisure and to check back on something, and in doing so change the first impression, but the listener or viewer has no such opportunity; and
  8. (h)
    the ordinary listener must be assumed to have heard and seen the whole of the program, but he or she may not have devoted the same degree of concentration to each part of the program as would have been given to a written article – “particularly, I would say, where it is the radio”[41] – and may have missed the significance of the existence, early in a program, of a qualification of a statement made later in the same material.
  1. [35]
    In addition to these principles the plaintiffs emphasise three further points, each of which the plaintiffs submit assumes critical importance in the present case:

“78. First, the ordinary reasonable listener does not give equal weight to every part of a publication. As McHugh J observed (in the context of the ordinary reasonable reader) in John Fairfax Publications Pty Limited v Rivkin (2003) 77 ALJR 1657 at [26]:

‘But 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.’

  1. Second, the meaning an ordinary reasonable listener attributes to a broadcast, that is the impression that person forms, is influenced by other matters.  For example, a broadcast may be pregnant with insinuation, or suggestion, and a broadcaster may seek to guide a listener to adopt a suspicious approach but not care to or dare to express matters in direct terms.
  1. Indeed, a broadcaster may convey an imputation indirectly or stealthily. As the Privy Council said in Jones v Skelton, supra, at 651, in a passage later applied by Lord Keith of Kinkel (on behalf of himself and Lords Elwyn Jones, Roskill and Griffiths) in Lloyd v David Syme & Co Ltd [1986] AC 350 at 363H–364A:

‘The [listener], a jury might conclude, was invited to adopt a suspicious approach and so to be guided to the real explanation of what had taken place — an explanation which the [broadcaster] … did not care or did not dare to express in direct terms.’

  1. Lord Keith characterised this (in the same passage) as being ‘anxious to wound but fearful to strike too obviously’.
  1. Gleeson CJ observed memorably in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 that:

‘It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong.’

  1. Third, these matters have a significant bearing on meaning for this reason: if a broadcaster invites the listener to adopt a suspicious approach or invites conjecture, then the broadcaster is liable for conclusions that an ordinary reasonable listener may reach as a result of that invitation.  Similarly, as the majority observed in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [11]:

‘Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd, that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges.’

  1. These three further matters are of critical importance to the present case. The reasons why are apparent when the audio of each of the broadcasts are considered.  The vast majority of Mr Jones’ broadcasts are sensationalist in tone, are pregnant with insinuation and suggestion. In many instances Mr Jones, by his tone, invites his listeners to adopt a suspicious approach, and he repeatedly invites conjecture.”[42]
  1. [36]
    In determining whether the imputations are conveyed, I have listened to each of the relevant broadcasts.  In the course of the trial a number of the broadcasts were played, and I have listened to some of them a number of times.  Both parties filed written submissions as to whether the imputations are conveyed.  These submissions make extensive reference to the transcript of each broadcast.  It is, of course, the sounds I hear from the audio of each broadcast that constitute the evidence.  A danger is created by listening to a broadcast more than once and reading the transcripts.  This danger was identified by Chaney J in Rayney v The State of Western Australia [No 9] where his Honour, similar to the present case, was conducting a judge-only trial:

“I am mindful that that process of analysis creates a real danger of departing from the task of assessing the meaning of the words in a way that a reasonable person, receiving the information for the first time, would understand them according to their ordinary and natural meaning.  It also tends to lead to the risk of analysis as a lawyer and of overlooking the ‘important reminder for judges’ that ordinary readers and listeners draw implications much more freely, especially when they are derogatory.”[43]

  1. [37]
    In determining whether the imputations are conveyed I have remained mindful of this danger.
  2. [38]
    Both parties accept that the Court is not bound by the imputations pleaded by the plaintiffs.  As stated in Chakravarti v Advertiser Newspapers Ltd:[44]

“As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim.  So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded.  On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focusses on some different factual basis.”

  1. [39]
    It is for the Court to determine the actual meaning of the words broadcast.[45]  If the Court finds a defamatory meaning that is a mere nuance or variation of the pleaded meaning, or a less serious meaning that does not cause any prejudice to the defendants, the plaintiffs are entitled to succeed on that issue.
  2. [40]
    The plaintiffs do not rely on any extrinsic fact of previous broadcasts in submitting that the First Matter carried the two pleaded imputations.  The first broadcast is quite short.  It begins by Mr Jones announcing “A very significant day in Queensland today”, capturing the listeners’ attention.  He then refers to a speech to be given in the Queensland Parliament by Dr Alex Douglas in relation to Grantham.  Mr Jones identifies the significance of his reference to Grantham by stating, “Of course the deaths of people which have never been investigated”.  He then emphasises that “Big things are said to come out of Queensland this week”.  Having already referred to Grantham in the context of peoples’ deaths, he makes note of a recent speech by Lachlan Murdoch in which Mr Murdoch referenced his grandfather’s belief that journalism should be dedicated to the truth.  Mr Jones places a vocal emphasis on the word “truth”.  It is in this context that Mr Jones describes Grantham as “one of the most corrupt metaphors in Australia”.  He then asks the listener, “Why was a Grantham cover-up orchestrated?  Who was being protected?”  The first question as posed by Mr Jones does not ask whether there was a cover-up, but rather assumes the existence of a cover-up and asks why such a cover-up was orchestrated.  He then suggests to the listener that “this is all tied up with mining”.  He also provides the listener with an answer as to who was being protected; he refers to “Wagners” as owning the “Grantham Quarry”.  Reference is then made to the Wagners already being in partnership with entities that work with British Gas.  Mr Jones then poses the question whether this makes the Wagners “untouchable”.  He concludes:

“Well may we ask in Queensland why the Grantham cover-up?  The answer in both is the same; those doing the covering-up have got plenty to hide.”

Again Mr Jones poses a question and provides the answer.  The defendants submit that there is no direct suggestion that the Wagners are involved in a cover-up.  The meanings can only arise by inference.  Although the Wagners are referred to as owning the quarry, there is, according to the defendants, no link between the quarry and the flood and nor, for that matter, the quarry, the flood and the deaths of people in Grantham.[46]  The defendants submit:

“The listener – whom we are not told to expect as having any particular background knowledge – would not be able to conclude anything from this broadcast about how people died, let alone that the Wagners were involved, or even worse, ‘culpable’ and thereby had something to hide or a financial interest to protect.”[47]

  1. [41]
    The import of the defendants’ submissions is that the Wagners were, at most, the beneficiaries of a cover-up but that does not make them, as the meanings would have it, persons who “orchestrated with others” or who were “knowingly involved in” a “high level cover-up”.  I do not accept these submissions.  The ordinary reasonable listener would have been left with the impression that the deaths of people at Grantham had not been investigated and that the truth had been suppressed.  This was because of an orchestrated cover-up by those who had “plenty to hide”.  They included the owner of the Grantham quarry, Wagners.  I accept the plaintiffs’ submission that the matter invites the listener to speculate and adopt a suspicious approach.[48]  The suspicious approach is invited by Mr Jones’ use of the words “cover-up” and “corrupt metaphor”, and by his reference to Wagner being “untouchable”.  The broadcast having invited the listener to adopt a suspicious approach and speculate, the two pleaded imputations would be conveyed to an ordinary reasonable listener.
  2. [42]
    The first imputation identifies two reasons for the orchestrated cover-up.  The first is to allow the plaintiffs to avoid being held to account for the deaths of people at Grantham, and the second is to protect the plaintiffs’ financial interests.  The first reason arises from Mr Jones’ use of the words “the deaths of people which have never been investigated”, “Grantham is one of the most corrupt metaphors in Australia”, “there are many people appalled and angered at what happened”, and his reference to the Grantham quarry being owned by Wagners.  The second reason arises from Mr Jones’ reference to the cover-up being “all tied up with mining” and Wagners being in partnership with entities that work with British Gas.
  3. [43]
    The defendants’ submission that the Wagners, at most, are the beneficiaries of a coverup reveals, in my view, an incorrect application of the principles discussed above.  The plaintiffs make the following general criticism of the defendants’ approach to the issue of whether each matter conveys the pleaded imputations:

“The plaintiffs apprehend that the defendants’ arguments on this and each of the other matters will be based on a close parsing and analysis of the words rather than on an impression created by the actual broadcast, which includes the words, the tone, the delivery – the broadcast itself.”[49]

  1. [44]
    The imputations complained of by the plaintiffs are carried by the First Matter complained of.

Second Matter

  1. [45]
    The Second Matter was broadcast on radio 2GB on 29 October 2014 commencing at approximately 7.13 am.  Attachment 2 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [46]
    The defendants dispute that the Second Matter is of and concerning the plaintiffs.  The basis of the dispute, which is also relevant to six other matters complained of,[50] is that the Second Matter makes no reference to individuals.  The defendants submit that the Second Matter is of and concerning the Wagner business, or corporate entity, rather than the plaintiffs.[51]
  3. [47]
    The test for identification is an objective one, namely whether the words published might reasonably be understood to those to whom they were published to refer to the plaintiffs.[52]  In Steele v Mirror Newspapers Ltd, Hutley JA observed: “The standards of reasonableness required of an identifying reader are not high.”[53]  Whether the Second Matter is of and concerning the plaintiffs is a question of fact.[54]  This question of fact does not depend simply upon the words used but upon all the circumstances of the broadcast, including tone, emphasis, insinuation and the fact that the broadcast is a transient publication.[55]
  4. [48]
    The defendants submit that the Second Matter makes no reference to individuals and is not about the activities of, or a reflection upon the conduct of, individuals.  The reference in the broadcast to “Wagners” would, according to the defendants, readily be understood by listeners to be a reference to the business.[56]  I do not accept this submission.  Mr Jones in the course of the broadcast makes reference to the following:
  • “the quarry was owned by Wagners”;
  • “they were already in partnership with the Wood Group, the British coal seam gas supply group that works with British Gas”;
  • “Does that make Wagner untouchable?”;
  • “the Wagners Sand Plant”;
  • “Wagners dam”;
  • “the Wagner airport”.
  1. [49]
    These references, in my view, would identify each of the plaintiffs to an ordinary reasonable listener.  As observed by Lord Morris in Morgan v Odhams Press Ltd,[57] “the average reader does not read a sensational article with cautious and critical analytical care”.  An ordinary reasonable listener would not necessarily understand the words used by Mr Jones as a reference to a business only and not to individuals.  Mr Jones, for example, in referring to “Wagners” uses the personal third person pronoun “they”.  Similarly he refers to “the Wagners Sand Plant”, not “Wagners Sand Plant”.  In posing the rhetorical question “Does that make Wagner untouchable?” Mr Jones uses the name “Wagner” rather than “Wagners”.
  2. [50]
    The natural and ordinary meaning of the words used by Mr Jones is, in my view, sufficient to dispose of the identification issue.  The plaintiffs, however, further rely on three pleaded notorious facts particularised in paragraph 11 of the second further amended statement of claim:

“At all times material to this proceeding:

  1. (i)
    each of the plaintiffs were known in the community as brothers, as members of the Wagner family and as being involved in a family business known as ‘Wagners’;
  1. (ii)
    the ‘community’ referred to in particular (i) comprises people throughout Australia, Queensland and the Toowoomba region;
  1. (iii)
    the plaintiffs were known in the community in the sense described in particular (i) above by reason of [numerous publications]”.

These publications extend from May 2002 through to May 2015.  For the purposes of the notorious facts pleaded, the plaintiffs may only rely on those publications identifying the plaintiffs as connected to the Wagners’ business prior to the date of the second broadcast, being 29 October 2014.  The publications from 2002 to October 2014 were tendered.[58]  The plaintiffs submit and I accept that the numerous articles from mainstream press and other periodicals are consistent with Wagners being a family-owned company, with each of the plaintiffs as brothers owning and operating the company.[59]  This evidence, according to the plaintiffs, is also consistent with the proposition that each of the plaintiffs are the Wagners, the owners of the quarry, to whom the Second Matter refers.[60]  While I accept this submission, in determining the issue of identification it is unnecessary to go beyond the natural and ordinary meaning of the words spoken by Mr Jones, as I have already observed.  I accept that the reasonable and ordinary listener would not understand that anyone other than the Wagners were referred to.[61]

  1. [51]
    It is in issue whether the imputations are conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    Orchestrated a disgusting cover-up of his role in the deaths of 19 poor, marginalised people in the Grantham flood disaster, in order to protect his own financial interests; and
  2. (b)
    was involved in orchestrating a disgusting campaign of vilification, bullying and intimidation, to prevent the truth coming out at the Grantham Floods Inquiry and prevent being held accountable for the deaths of 19 poor, marginalised people in the Grantham flood disaster.[62]
  1. [52]
    The plaintiffs do not rely on any extrinsic fact of previous broadcasts in submitting that the Second Matter carried the two pleaded imputations.
  2. [53]
    The Second and Third Matters complained of were part of the same broadcast on 29 October 2014.  The first part of the broadcast consists of a lengthy commentary by Mr Jones in the context of a speech given by Dr Alex Douglas to the Queensland Parliament.  In this speech, Dr Douglas called for the establishment of a Royal Commission into what occurred in Grantham in 2011.  The second part of the broadcast, which follows on from this commentary and commences at 7.22 am, is an interview conducted by Mr Jones with Mr Cater. 
  3. [54]
    As to imputation (a), this is in similar terms to the imputation which was conveyed by the First Matter.  This is unsurprising, as Mr Jones commences the second broadcast by repeating the substance of the first broadcast.  The sting of the second imputation is that the plaintiffs were involved in orchestrating a campaign of vilification, bullying and intimidation (as opposed to orchestrating a cover-up). 
  4. [55]
    These imputations are, in my view, conveyed with two insignificant changes.  Nowhere is the orchestration of a cover-up referred to in the broadcast as being “disgusting”.  The word “disgusting” is used once in the broadcast and only in the context of bullying and intimidation.  The words “are disgusting” should be removed from the first imputation.  I deal with the second change below.
  5. [56]
    As to imputation (a), the same reasoning in relation to the First Matter applies.  The imputation that the plaintiffs orchestrated a cover-up is even more plainly conveyed by this broadcast than the First Matter.  Mr Jones makes numerous references to the fact of a cover-up.  He asks “Why was the Grantham cover up orchestrated?  Who was being protected?”  In this broadcast, however, Mr Jones was more specific as to what is being covered up:

“And I say again, this is all part of the mining invasion.  Was this cover up to protect Queensland Gas and its major owner, British Gas?  After all, the Grantham quarry which accumulated the water and then the banks burst and a tsunami claimed 19 lives.  17 lost, two other persons never found – presumed dead – on the 10th January 2011.”

  1. [57]
    Inexplicably Mr Jones is quite mistaken as to the number of lives lost.  Mr Jones then refers to the fact there was no investigation.  He again asks, “Why a cover up?”  He immediately follows this question with the following statement:

“Well as I said, the quarry was owned by Wagners; they were already in partnership with the Wood Group, the British coal seam gas supply group that works with British Gas.  Does that make Wagner untouchable?  We’ve been talking about an ARU cover up of the truth in relation to Kurtley Beale, here’s a cover up in relation to the Grantham catastrophe.  Why?  The answer to both issues is the same: those doing the covering up have a lot to hide.”

  1. [58]
    As to imputation (b), in the course of the broadcast Mr Jones describes the victims at Grantham by adopting the words of Dr Douglas, who identified the victims as “marginalised” and “mostly poor”.  Mr Jones then provides information from a study that found that 90 per cent of all flood deaths in Australia had, in substance, been the result of risk-taking behaviours.  He contrasts this statistic with the flood in Grantham, where 70 per cent of those who lost their lives were at home.  This difference in the Grantham Flood event is then explained by Mr Jones by reference to an account of Martin Warburton and the opinion of Mr Cater.  He quotes Mr Warburton as saying, “…the water was diverted out of Lockyer Creek at the Wagners Sand Plant site right where a dam wall had been constructed across the creek.”  It is in this context that Mr Warburton refers to bullying and intimidation which was disgusting when local residents tried to raise the issue regarding “Wagners dam” and its effect.  Mr Cater’s opinion, which Mr Jones quotes, is that “there is no doubt in my mind that this was man-made disaster”.
  2. [59]
    The broadcast concludes with the story of an encounter between Dr Douglas and the local member, Mr Ian Rickuss.  This encounter occurred after Dr Douglas had given his speech to Parliament calling for a Royal Commission:

“He was confronted by the local state member, a member of Newman’s team, Ian Rickuss.  He came rushing up to Dr Douglas, red-faced and flustered, carrying a pile of books and folders and notes all dog-eared and sticky pads everywhere and he said to Alex Douglas: you need to read this, you didn’t read the Flood Report properly, it was all the Council’s fault – this is the local Council.  Dr Douglas said: Ian, I did read the Flood Report very carefully and I do know whose fault it was.  Rickuss then changed tack, going from flustered and desperate to hostile.  This is a member of the Newman Government, demanding that Alex Douglas withdraw his call for a Royal Commission because some of Rickuss’ best mates may well have been involved in the cover up.”

  1. [60]
    Mr Jones, in speaking of Mr Warburton’s experiences, makes a number of references to bullying and intimidation:
  • “[Mr Warburton] said: the bullying and intimidation I witnessed – he said to me in a letter – and experienced towards those who stood up and asked questions about the event or made comments during the recovery that authorities didn’t agree with, the bullying and the intimidation was disgusting to say the least.”
  • “He said: Many locals raised the issue regarding Wagners dam and its effect and several community meetings after the event but the issue was always dismissed by authorities.”
  • “He said: I even raised it with several submissions to the Flood Inquiry; it never got a mention.  I was never asked about it when I was on the stand giving evidence at the Flood Inquiry.”
  1. [61]
    The defendants submit that the imputations are not conveyed because the broadcast does not contend that the plaintiffs are responsible for, or knowingly involved in, the orchestration of a cover-up or in a campaign of vilification, bullying and intimidation to prevent the truth of their responsibility for the deaths of people at Grantham from coming out.[63]  The defendants further submit in relation to imputation (b) that the reference to the “Grantham Inquiry” is incorrect.  I accept that the broadcast in terms refers to the “Flood Inquiry” and imputation (b) should be read as containing a reference to the Queensland Floods Inquiry, rather than the Grantham Floods Inquiry. 
  2. [62]
    The defendants submit that the allegations of bullying and intimidation are not directed at the Wagners but rather at the “authorities”.  This is said to arise from the words used by Mr Jones that “bullying and intimidation was experienced by those who asked questions or made comments that authorities didn’t agree with” and that the issue (regarding the Wagners’ dam) was always dismissed “by authorities”.  This, according to the defendants, makes clear that bullying and intimidation was experienced by those who challenged “the authorities”.[64]  This submission, however, ignores the primary thrust of the broadcast in which Mr Jones, using an accusatory tone, alleges that the true cause of the deaths from the Grantham Flood event has been covered up and the truth suppressed, and further, that when residents sought to raise their concerns about the Wagners’ dam, they were bullied and intimidated.  These accusations are conveyed as relating to the Wagners, because Mr Jones explains the need for a cover-up by reference to the quarry being owned by Wagners and the bursting of the banks of the quarry as creating a tsunami which claimed 19 lives.  He also questions whether Wagner is untouchable.  Mr Jones refers to the persons behind the covering-up as those who have a lot to hide.  This conveys to the listeners that the Wagners are the persons who have a lot to hide.
  3. [63]
    I determine that the imputations conveyed by the Second Matter are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    orchestrated a cover-up of his role in the deaths of 19 poor, marginalised people in the Grantham flood disaster, in order to protect his own financial interests;
  2. (b)
    was involved in orchestrating a disgusting campaign of vilification, bullying and intimidation to prevent the truth coming out at the Queensland Floods Inquiry and prevent being held accountable for the deaths of 19 poor, marginalised people in the Grantham flood disaster.
  1. [64]
    There is no issue that the imputations conveyed are defamatory. 

Third Matter

  1. [65]
    It is in issue whether the Third Matter is of and concerning the plaintiffs. 
  2. [66]
    As I have already observed, the Second and Third Matters complained of are part of the one broadcast on 29 October 2014.  The words spoken in the Second Matter are therefore relevant to the question of identification in respect of the Third Matter.  As well as the references to the Wagners in the Second Matter, the Third Matter refers to the Wagners as follows:
  • “People who were heavily involved in working with Wagners on the Wellcamp Industrial Estate”
  • “Wagners quarry”
  • “Wagners dam influence”

For the same reasons given in relation to the Second Matter, the Third Matter was of and concerning the plaintiffs. 

  1. [67]
    It is in issue whether the imputations are conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    caused the deaths of 10 adults and two children by crudely constructing an unauthorised levee on the western boundary of his quarry which burst in two places, resulting in lethal waves of millions of tonnes of water flooding into and devastating the rural town of Grantham;

(bb) in the alternative to (a), caused the deaths of 10 adults and two children when a crudely constructed and unauthorised levee on the western boundary of his quarry burst in two places, resulting in lethal waves of millions of tonnes of water flooding into and devastating the rural town of Grantham; and

  1. (b)
    conspired with Sinclair Knight Merz to cover up the true cause of the Grantham flood which killed 12 people including two children, namely the collapse of a crudely constructed and unauthorised levee bank at his quarry, resulting in lethal waves of millions of tonnes of water flooding into and devastating the rural town of Grantham.[65]

The first two imputations are in the alternative.  The only difference between them is whether the plaintiffs constructed the unauthorised levee.  These alternative imputations are alleged to be conveyed by a number of the matters complained of.

  1. [68]
    The plaintiffs rely on the following statements by Mr Jones as conveying the first imputation:
  • “… the lethal waves that devastated the rural town of Grantham and drowned ten adults and two children originated in a nearby quarry where an artificial levee, less than ten years old, held back millions of tonnes of storm water before bursting in two places.”
  • “… since the last significant flood in 1996, an obstacle had been placed in the timeworn path.  A crudely constructed levee, three to five metres in height, now stretched for 380 metres, on the western boundary of Wagners quarry.  As the deluge hit the bend at a velocity of some five metres per second the kink in the river acted as a pressure valve while the levee held the water back.”
  • “… if a levee bank constructed without official sanction had not collapsed at the Grantham quarry, ten adults and two children who drowned that afternoon would have had a fighting chance.”[66]
  1. [69]
    The thrust of the interview is a criticism of the findings of the Queensland Floods Inquiry, which Mr Jones notes “found that Grantham was flooded by the natural overflow from Lockyer Creek”.  It is evident from the broadcast that neither Mr Jones nor Mr Cater accepts this conclusion.  Mr Cater states:

“We have the video, the photographic evidence and, of course, hours and hours of eye witness evidence which I’ve recorded.  All points to one thing; it points to a sudden catastrophic influx of water about two metres high which swept through a narrow part of the town – the most densely occupied area.  It did not come up from the creek, that was a separate flood earlier.”

  1. [70]
    Mr Jones endorses this approach having earlier stated:

“Now as you have written, and people have written to me, eye witness accounts supported by several hours of video footage and hundreds of photographs paint a picture completely at odds with the Commission’s finding that Grantham was flooded by the natural overflow from Lockyer Creek.”

  1. [71]
    In making this statement, Mr Jones gives considerable vocal emphasis to the words “eye witness accounts”, “hours” of video footage, and “hundreds of photographs”.  For the ordinary reasonable listener, the alternative scenario to that found by the Queensland Floods Inquiry, namely lethal waves from the collapse of the levee at the Wagners’ quarry, is presented by Mr Jones not as a possible scenario, but rather as a factual assertion of what caused the catastrophic influx of water.
  2. [72]
    The plaintiffs submit that the ordinary reasonable listener would have understood that it was the Wagners who constructed the levee.  While Mr Jones does not explicitly say it, he says the levee is “less than ten years old”, and there is no suggestion that the quarry was owned by anyone other than Wagners.  This omission, according to the plaintiffs, would have left the ordinary reasonable listener with the impression that it was the Wagners who constructed the levee.  Mr Jones does not suggest in the broadcast that anyone else was responsible for the construction of the levee.[67]  The defendants’ primary criticism of the plaintiffs’ pleaded imputations is as follows:

“The listener to a broadcast, particularly a long broadcast covering a number of topics, is likely to pick up on either the general gist of what was said, or alternatively, to become fixed on a short phrase or a few words.  It is highly unlikely … that a listener is able to pick apart all of what is said, and reconstruct a complex and composite meaning from it.  The plaintiffs have elected not to plead a general meaning and have instead chosen long and, it seems, carefully planned meanings, almost all of which require a piecing together of different aspects of it over time.”[68]

  1. [73]
    According to the defendants, the true story being told by this broadcast focusses not on the owners of the quarry, but on the failure of the Queensland Floods Inquiry to adequately investigate the cause of the deaths of people in Grantham.  These alleged failures of the Queensland Floods Inquiry are used by Mr Jones, however, to lead the listener to a different conclusion than that reached by the Inquiry as to what caused the deaths at Grantham.  It is apparent from listening to the broadcast that, based on the evidence of eyewitnesses, hours of video, and hundreds of photographs, it was the breach of the levee at the Wagners’ quarry which resulted in “the lethal waves that devastated the rural town of Grantham and drowned ten adults and two children”.  While the broadcast does not refer to the levee being “unauthorised”, reference is made to the levee being constructed “without official sanction”.  I accept the plaintiffs’ submissions that an ordinary reasonable listener would have gained the impression from the broadcast that it was the Wagners who had constructed the levee.
  2. [74]
    I therefore find that imputation (a) rather than the alternative imputation (bb) was conveyed.
  3. [75]
    I have, however, formed a different view in respect of imputation (b), which alleges that the plaintiffs conspired with Sinclair Knight Merz to cover up the true cause of the Grantham flood.  This imputation is said to arise from the following exchange between Mr Cater and Mr Jones:

“NICK CATER: … Three people died in that house.  So this was an extraordinary event and you’d think that a Flood Commission would go to enormous lengths to find out what happened.  But what they did was commission one single hydrology report; that was all.  It was by Sinclair Knight Merz, the scientist was Dr Phillip Jordon, he produced his interim report without even visiting Grantham.

ALAN JONES: I’m sorry to interrupt you, but Sinclair Knight Merz have got their hands over everything in Queensland, haven’t they?  Aren’t they the people who were heavily involved in working with Wagners on the Wellcamp Industrial Estate – they’re the same people.

NICK CATER: And I think, Alan, we’ve gotta be very careful with this story, how far we go.  There may be cover ups, things that have undoubtedly been covered up – I don’t know by who or why.  My real concern is just to say let’s start by saying what happened on the day and then we’ll see what flows from that.”

  1. [76]
    This exchange would not, in my view, have conveyed to an ordinary reasonable listener the pleaded imputation.  The exchange makes it clear that it was the Queensland Floods Inquiry that engaged Sinclair Knight Merz.  The mere fact that Mr Jones identifies that Sinclair Knight Merz were heavily involved in working with the Wagners on the Wellcamp Industrial Estate does not convey, from a layman’s perspective, any sort of agreement or understanding as between the plaintiffs and Sinclair Knight Merz to cover up the true cause of the Grantham Flood event.  A listener would have to be avid for scandal to draw such a long bow.
  2. [77]
    I therefore find that the Third Matter conveyed imputation (a).
  3. [78]
    There is no issue that, if conveyed, imputation (a) is defamatory of each of the plaintiffs.

Fifth Matter

  1. [79]
    The Fifth Matter complained of was broadcast on radio 4BC on 24 February 2015 at approximately 12.52 pm.  Attachment 5 to these Reasons is a transcript of the words spoken by Mr Jones. 
  2. [80]
    It is not in dispute that the matter is of and concerning each of the plaintiffs. 
  3. [81]
    It is in issue whether the imputations are conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    knowing that his culpability for the deaths of people in the Grantham flood disaster had been covered up, tried to persuade the Premier that allegations about a coverup were a conspiracy theory; and
  2. (b)
    knowing that his culpability for the deaths of people in the Grantham flood disaster had been covered up, persuaded the Premier that she should put her own selfinterest ahead of assisting the truth to come out, and refuse to appear before a Senate inquiry into the disaster.[69]
  1. [82]
    The plaintiffs’ pleaded case is that each of the imputations are conveyed by the natural and ordinary meaning of the words.  Alternatively, they allege that the imputations arise by reason of an innuendo meaning, because the audience to whom the broadcast was made would have known of certain facts and thereby would have interpreted the words consistent with the imputations.  The facts relied upon are that:[70]
  1. (a)
    the town of Grantham experienced a flood disaster which resulted in the deaths of many people;
  2. (b)
    Mr Jones had made frequent and repeated allegations that the plaintiffs were responsible for the Grantham flood disaster and the deaths of many people as a result of the disaster and had attempted to cover up their responsibility for the Grantham flood disaster and the deaths of many people as a result of the disaster;
  3. (c)
    Mr Jones’ previous allegations were made:
  1. (i)
    in the First, Second and Third Matters complained of; and
  2. (ii)
    by him on his program on 13 October 2014 (commencing at about 7.16 am) and on the “Alan Jones Comments of the Day Program” on radio 4GR on 16 October 2014 (commencing at about 1:51pm); and
  1. (d)
    a further inquiry into the Grantham flood disaster had been announced by the Queensland Government.
  1. [83]
    The relevant part of the Fifth Matter complained of is as follows:

“So in July/August last year Alex Douglas met with Palaszczuk re- grant them [Grantham] and gave support to Clive Palmer’s federal parliamentary inquiry into Queensland.  Palaszczuk reportedly told Dr Douglas she knew all about Grantham, knew it was a cover up but quoted; it didn’t happen on my watch and she wanted to move on.  When the Palmer inquiry was passed by the Senate in September last year Palaszczuk told the media yes she’d be happy to appear before it.  By November last year she refused to appear.  Why?  What was going on?  Now we hear that Wagner’s people have been visiting Palaszczuk convincing her or trying to that everything about Grantham is a conspiracy.  The whole Grantham thing and she needs to lie low and let it pass.

And I understand that Stewart the Police Commissioner is terrified that Grantham will be reopened as an inquiry.  Annastacia Palaszczuk the new Premier needs to get a judicial inquiry into Grantham up and running immediately.”

  1. [84]
    The ordinary reasonable listener is informed by this broadcast that the Premier knew all about Grantham and that it was a cover-up.  The listener is also informed that Ms Palaszczuk had changed her mind about appearing at a parliamentary inquiry into Queensland.  The reason given to the listener for this change is the intervention of “Wagner’s people”, who have been visiting the Premier. “Wagner’s people” have been trying to convince the Premier that everything about Grantham is a conspiracy and that “she needs to lie low and let it pass”.  These are matters that are conveyed to the listener by the ordinary and natural meaning of the words used by Mr Jones in the broadcast and cover the substance of both pleaded imputations.
  2. [85]
    The listener is not informed by Mr Jones, however, of what “everything” about Grantham includes.  Nor are they informed why “Wagner’s people” would need to, or have an interest in, trying to “convince” the Premier that “everything” is a “conspiracy”.  The plaintiffs submit that this omission invites the ordinary reasonable listener to speculate and to adopt a suspicious approach.  The clear impression created, according to the plaintiffs, is that the Wagners had something to hide and a motivation to hide it.[71]  The listener is being invited by Mr Jones to speculate that the Wagners are seeking to hide their culpability for the deaths in Grantham.
  3. [86]
    The plaintiffs submit that this meaning is the natural and ordinary meaning of the words and is not an innuendo meaning.  This is because, to the extent the meaning requires knowledge of additional facts, some of those facts were matters of notoriety and would have been known to listeners of Mr Jones’ program.  In addition, Mr Jones had, by the time of this broadcast, already made allegations that the plaintiffs were responsible for the Grantham Flood event and the deaths of people.  He had also made allegations that the plaintiffs had sought to cover up their responsibility for these events, not least in the First, Second and Third Matters.[72]  Further, on the Jones Program on 13 October 2014 commencing at about 7.16 am[73] Mr Jones, in interviewing Mr Warburton, referred to Wagners building “a wall of waste from the quarry”.  This “was a dam wall constructed across the creek”. According to Mr Jones, “the wall collapsed”, causing the “tsunami” which in turn caused Mr Warburton to say it “was not a normal flood” and that “the destruction that water caused was the result of a man-made construction in a designated watercourse”.  Mr Jones also referred to Mr Warburton’s belief “that there has been a complete cover up”.  Mr Jones expressed his own belief in a cover-up on the “Alan Jones Comments of the Day Program” on radio 4GR on 16 October 2014.[74]
  4. [87]
    One of the notorious facts relied on by the plaintiffs, namely that at the time of the fifth broadcast a further inquiry into the Grantham Flood event had been announced by the Queensland Government, is not correct.  The Fifth Matter was broadcast on 24 February 2015.  As at that date the Queensland Government had not announced a further inquiry.  This did not occur until May 2015, as is evident from the broadcast on 6 May 2015, which is the Fourteenth Matter complained of. 
  5. [88]
    If a fact is notorious then the hypothetical referee, the ordinary reasonable listener, will be taken to know it.[75]  The plaintiffs submit that it is not necessary to call evidence from a witness who had knowledge of those extrinsic facts because the only reasonable inference is that at least some of the listeners of the Fifth Matter must have knowledge of the earlier broadcasts.[76]  The defendants submit that as no witness was called who knew the extrinsic facts and who understood the broadcast in the manner pleaded, the imputations were not conveyed.  The defendants rely on Hough v London Express Newspaper Ltd.[77]  In that case Goddard LJ identified the question of law that arose in the following terms:

“Where words are not defamatory in their ordinary meaning, but by reason of special facts are capable of being understood in a secondary and defamatory sense by persons to whom the special facts are known, is it necessary to prove than that there are people who know the special facts, and so might understand the words in a defamatory sense, or must there be evidence that some person did so understand them?”

Goddard LJ considered it unnecessary to call persons to say that they did so understand the words, provided it is proved that there are people who might so understand them.  Hough is not authority for the proposition that the plaintiffs had to call witnesses who knew the extrinsic facts and who understood the broadcast in the manner pleaded.  The question is not whether an actual witness was called, but rather whether the plaintiffs have established as a matter of inference that the pleaded extrinsic facts would have been known to listeners of Mr Jones’ program.  The plaintiffs submit that this inference arises because the extrinsic facts were matters of notoriety and would have been known to listeners of Mr Jones’ program.  In my view, this inference may be drawn in the present case.  In considering damages below, I deal with the extent of publication.  Suffice to say, Mr Jones had an extensive listening audience.  One of the exceptions to the requirement to identify or call witnesses to prove particular knowledge of extrinsic facts is where the publication has a wide circulation and the only reasonable inference is that some of the readers must have knowledge of the relevant facts.[78]  An inference may be drawn that listeners who had heard the previous broadcasts would have had knowledge of the pleaded extrinsic facts.  By the time of this broadcast Mr Jones had already made allegations that the plaintiffs were responsible for the Grantham Flood event and the deaths of people.  He had also made allegations that the plaintiffs had sought to cover up their responsibility for these events.

  1. [89]
    As to imputation (b), it arises out of that part of the broadcast which states that “Wagner’s people” are seeking to convince the Premier that “she needs to lie low and let it pass”.  “It” is a reference to “the whole Grantham thing”.  The plaintiffs submit that the ordinary and natural meaning of these words is that the plaintiffs were seeking to convince the Premier that it was in her own interest “to lie low and let it pass”.  I accept that such an inference arises.  These words are vocally emphasised by Mr Jones.  Further, the meeting between the Premier and “Wagner’s People” is said to have taken place after the Premier had already informed Dr Douglas that, although she knew “Grantham” was a cover-up, it did not occur on her watch.  Mr Jones suggests to the listener that it is this meeting between the Premier and “Wagner’s people” which answers his questions as to why the Premier changed her mind about appearing before the Senate Inquiry.
  2. [90]
    Both imputations are conveyed.
  3. [91]
    There is no issue that, if conveyed, the imputations are defamatory of each of the plaintiffs.
  4. [92]
    The defendants do not seek to defend these defamatory imputations.  As discussed below in relation to damages, I consider these imputations to be very serious.

Sixth Matter

  1. [93]
    The Sixth Matter was broadcast on radio 4BC on 26 February 2015 at approximately 12.53 pm.  Attachment 6 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [94]
    There is no issue that the matter is of and concerning each of the plaintiffs. 
  3. [95]
    It is in issue whether the imputations are conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    was a corrupt businessman in that he was able to build an airport in breach of all laws by reason of his connections with the Premier, Campbell Newman, and other officials in local government and state government;
  2. (b)
    had constructed an airport in Toowoomba and had broken all the rules in the construction of the airport.[79]
  1. [96]
    The Sixth Matter is a short broadcast.  Mr Jones adopts a sarcastic tone of voice in which he commences by sending “a cheerio call” to “Mr Wagner in Toowoomba”.  Mr Jones then asserts as a fact that the airport was built “breaking all the rules”.  Mr Jones immediately follows this factual assertion by referring to Mr Wagner’s “mate” Campbell Newman, who “said it was all legal”.  The tone used by Mr Jones is sardonic.  It suggests to the listener that the construction of the airport is anything but legal.  The person who is saying “it was all legal” is Mr Wagner’s “mate”, Campbell Newman.  Mr Jones then suggests to the listener that Mr Wagner had “mates” both in town hall and George Street, including Campbell Newman and Mr Seeney.  Mr Jones concludes the broadcast by telling the listener in respect of Mr Wagner, “All things come to those who wait”. 
  2. [97]
    Imputation (a) is more serious than imputation (b) in that it alleges that each of the plaintiffs was a corrupt businessman.  Another difference between the meanings is that one refers to “laws” and the other to “rules”.  The defendants submit that the fact the plaintiffs recognise this distinction gives effect to the proposition that the ordinary reasonable listener would not equate the two.[80]  According to the defendants, the natural and ordinary meaning of a “rule” does not include any reference to laws:

“There are legal consequences for breaching laws.  Rules in contrast reflect standards, and carry lower, or perhaps no enforceable consequences for their breach.  Rules are broken – laws are breached.  That is why, for example, games are regulated by rules formulated by governing bodies, but it is a parliament that makes a law.”[81]

  1. [98]
    While a lawyer may draw such a distinction between “rules” and “laws”, how the ordinary reasonable listener determines meaning is “a matter of impression”.[82]  As I have already observed, this broadcast was delivered by Mr Jones in a sarcastic tone.  Immediately after he refers to the fact of the airport being built breaking all the rules, he refers to Campbell Newman stating that it was all legal.  That is, Mr Jones confabulates “rules” and “laws” by referring to Mr Newman’s opinion as to legality.  Given the broadcast is delivered in a sarcastic tone, Mr Jones in effect invites the listener not to believe the statement of Mr Newman that the construction of the airport is “all legal”.  An ordinary reasonable listener would gain the impression that Mr Wagner, in constructing the airport, had in fact acted illegally. 
  2. [99]
    Mr Jones offers to the listener a ready explanation for why Mr Wagner could construct an airport by breaking all the laws, namely because he has mates both in town hall and George Street.  An ordinary listener, unlike a lawyer, will draw implications much more freely, especially when they are derogatory.[83]  By insinuating that Mr Wagner has broken all the laws in building the airport and could do so because he had mates in both town hall and George Street carries, in my view, a meaning that Mr Wagner was a corrupt businessman.
  3. [100]
    The second imputation is conveyed by the actual words used by Mr Jones.
  4. [101]
    Both imputations are conveyed.
  5. [102]
    It is in issue whether imputation (b) is defamatory.  The defendants submit that the imputation that the plaintiffs had broken all the rules in the construction of the airport is not defamatory because the imputation does not suggest that there was anything wrongful in how the rules may have been broken:

“The rules may have been broken, but it is not put in a wrongful way – for example, it might equally be said of a meaning of this kind that all the rules as to construction had been broken by coming in on time and under budget.  Equally, there is no allegation of knowledge – that the plaintiffs knew they were breaking the rules.”[84]

  1. [103]
    The common law test of what is defamatory in relation to each imputation found to be conveyed is “whether the published matter is likely to lead an ordinary reasonable person to think less of the plaintiff”.[85]  The words of the broadcast are not to be parsed and analysed.  As correctly submitted by the plaintiffs, an imputation is simply a distillation of the defamatory meaning that the plaintiffs contend was conveyed by the publication.  It takes its colour from the matter complained of that gives rise to it.[86]
  2. [104]
    In my view, the broadcast conveys to the listener that Mr Wagner, in breaking all the rules in constructing the airport, has acted wrongfully.  The wrongfulness of Mr Wagner’s actions is conveyed by Mr Jones’ sarcastic tone throughout the broadcast.  Both the tone and the subject matter of the broadcast conveys to the ordinary reasonable listener that each of the plaintiffs had acted wrongfully in breaking all the rules in constructing the airport.
  3. [105]
    To accuse a person of wrongfully breaking all the rules in building an airport is likely to lead an ordinary reasonable person to think less of the person.  Imputation (b) is defamatory.

Seventh Matter

  1. [106]
    The Seventh Matter was broadcast on radio 2GB on 9 March 2015 at approximately 7.40 am.  Attachment 7 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [107]
    2GB and Mr Jones admit that the Seventh Matter is of and concerning the plaintiffs.
  3. [108]
    It is in issue whether the imputations are conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    caused the deaths of 13 people by illegally constructing a dam wall across Lockyer Creek which collapsed, releasing a tsunami-like wall of water that engulfed Grantham;

(aa) in the alternative to (a), caused the deaths of 13 people when an illegally constructed dam wall across Lockyer Creek collapsed releasing a tsunami-like wall of water that engulfed Grantham;

  1. (b)
    was a callous and selfish person who did not worry about his legal and moral responsibility for the deaths of 13 people in the Grantham flood disaster;
  1. (c)
    was knowingly involved in a massive cover-up of the cause of the Grantham flood disaster, in order to protect himself from being held to account for the deaths of 13 people in the disaster; and
  1. (d)
    was involved in disgusting bullying and intimidation of witnesses at the Grantham Floods Inquiry, in order to protect himself from being held to account for the deaths of 13 people in the Grantham flood disaster.[87]
  1. [109]
    In this broadcast Mr Jones makes the following statements:
  • “And you’ve heard me, I said it was a massive cover-up.”
  • “He [Mr Warburton] said the water had been diverted out of Lockyer Creek at the Wagners sand plant site, right where a dam wall had been constructed across the creek, and the dam wall in my view illegally constructed, because it was of waste in the quarry, the dam wall in the Wagner quarry collapsed.”
  • “Marty Warburton said to me what happened on that day was not a normal flood and the violence and the destruction that water caused was the result of a man-made construction in a designated water course, man-made.  Wagner Quarry, Wagner of the Wellcamp Airport, please yourself, get your own way, do what you like, don’t worry about anything.”
  • “There was a flood inquiry.  Marty Warburton raised all this with the flood inquiry, quote: it never got a mention.  He said to me the bullying and intimidation I witnessed and experienced towards those who stood up and asked questions about the event or made comments during the recovery that authorities didn’t agree with, the bullying and the intimidation was disgusting.”
  • “He said to me on this program, many locals raised the issue regarding Wagner’s dam and its effect at several community meetings after the event but the issue was always dismissed by authorities.”
  • “This is Queensland, Grantham.  A complete cover-up.”
  • “This was, as I said, a cover-up from day one.”
  • “The question now is, what will the new Premier Palaszczuk do?  I’ll tell you what she should do.  There needs to be a major inquiry into Grantham alone.”
  • “And of course, the residents have said all along and I’ve said all along, the water wasn’t along the banks of the Lockyer Creek; the people there survived.  The houses were hardly affected.  It was the people more than a kilometre from the creek along the Gatton Helidon Road that bore the brunt of the deadly force.”
  • “And those people have claimed all along the collapse of the Wagner Quarry’s levee or embankment, three metres to five metres high, and 380 metres long – 380 metres long – had released a wall of water that engulfed Grantham.”
  • “This is disgraceful stuff.”
  • “It is a scandal, one of the many that resulted because the Newman Government had a chance to do something about this and they promised they would and they did nothing, because their mates got at them – don’t do anything.”
  1. [110]
    Mr Jones concludes the broadcast by informing his listeners that he will be returning to this subject.  Mr Jones commences the broadcast in a relatively quiet voice and employs a stronger and more indignant tone as the broadcast progresses.[88]  The general topic of the broadcast is a cover-up of the Grantham Flood event in which, according to Mr Jones, 13 people lost their lives, with 10 officially dead and three never found.  Mr Jones is mistaken as to the number of people who lost their lives as a result of this tragedy.
  2. [111]
    As to imputation (a), Mr Jones uses similar, if not more emphatic language as was used in the Third Matter complained of.  For the same reasons, I find that imputation (a), rather than the alternative imputation (aa), was conveyed.  While the listener is not told who constructed the dam wall, Mr Jones creates the impression that there is little doubt it was the Wagners.  The dam wall is described by Mr Jones as being a “man-made” construction which, in Mr Warburton’s opinion, was illegally constructed.[89]  I do not accept the defendants’ submission that any implication drawn by the listener that the plaintiffs were the cause of deaths by their actions at the quarry would be speculative at best.[90]  Mr Jones, by linking the construction of the man-made wall to the Wagners pleasing themselves, doing what they like and not worrying about anything, invites the listener to infer that it is this wall constructed by the Wagners which resulted in the deaths of 13 people.  The drawing of this inference does not require the listener to speculate.  Even if the listener were to speculate as submitted by the defendants, Mr Jones, by the words used, invites such conjecture and is liable for conclusions that an ordinary reasonable listener may reach as a result of that invitation.[91]
  3. [112]
    As to imputation (b), the plaintiffs submit that the meaning arises from the words used by Mr Jones quoted above: “Wagner Quarry, Wagner of the Wellcamp Airport, please yourself, get your own way, do what you like, don’t worry about anything.”[92]  The defendants submit that this imputation depends on at least two conditions in order to arise – first, an assertion that the plaintiffs had a legal and moral responsibility for the deaths in Grantham, and secondly, that, callously and selfishly, they were unconcerned (in that they did not worry) about that fact.  According to the defendants, it is not at all apparent where either condition could come from in the context of this broadcast.[93]  In the relevant passage, Mr Jones informs the listener of what Mr Warburton had said to him, namely that “the violence and the destruction that water caused was the result of a man-made construction in a designated water course”.  Mr Jones repeats the words “man-made”.  It is in the context of the man-made wall causing the violence and destruction that Mr Jones refers to the Wagners in such pejorative terms.  What is conveyed by the broadcast to the ordinary reasonable listener is that the Wagners were unconcerned as to what may result from constructing a dam wall in a designated watercourse.  Being unconcerned as to the possible effects of a man-made wall being constructed in a watercourse is quite a different meaning to being unconcerned about one’s legal and moral responsibility for the collapse of the wall resulting in the deaths of people in the Grantham Flood event.  The passage of the broadcast relied on by the plaintiffs does not, in my view, convey imputation (b).  The pejorative words used by Mr Jones relate to the construction of the wall rather than to the alleged actual results of its collapse.
  4. [113]
    As to imputation (c), Mr Jones in the course of the broadcast makes numerous references to a cover-up.  This is in the context where a meaning conveyed by the broadcast is that each of the plaintiffs caused the deaths of 13 people by illegally constructing a dam wall across Lockyer Creek which collapsed, releasing a tsunami-like wall of water that engulfed Grantham.  The use of the words “complete cover-up”, “massive cover-up”, and “cover-up from day one” all invite the listener to speculate as to what was being covered up.  I accept the plaintiffs’ submission that the listeners are, in substance, told what is being covered up, namely “Wagner’s dam and its effect” at Grantham, which Mr Jones had already told listeners caused the tragedy.  While Mr Jones does not identify who is involved in the cover-up, it may be accepted that the ordinary reasonable listener would have understood it to include, at least, the Wagners.[94]
  5. [114]
    As to imputation (d), the reference should be to the Queensland Floods Inquiry rather than to the Grantham Floods Inquiry.  The words of the broadcast which give rise to this imputation are similar to those used by Mr Jones in the Second Matter complained of.  For the same reasons expressed at [61] to [62] above, this imputation was conveyed.
  6. [115]
    I determine that the imputations carried by the Seventh Matter are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    caused the deaths of 13 people by illegally constructing a dam wall across Lockyer Creek which collapsed, releasing a tsunami-like wall of water that engulfed Grantham;
  2. (b)
    was knowingly involved in a massive cover-up of the cause of the Grantham flood disaster, in order to protect himself from being held to account for the deaths of 13 people in the disaster; and
  3. (c)
    was involved in disgusting bullying and intimidation of witnesses at the Queensland Floods Inquiry, in order to protect himself from being held to account for the deaths of 13 people in the Grantham flood disaster.
  1. [116]
    2GB and Mr Jones admit that if these imputations are conveyed they are defamatory.

Eighth Matter

  1. [117]
    The Eighth Matter was broadcast on radio 2GB on 10 March 2015 at approximately 6.48 am.  Attachment 8 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [118]
    The defendants deny that the Eighth Matter is of and concerning the plaintiffs.  The Eighth Matter contains similar references to the plaintiffs as the Second and Third Matters.  It refers to “Wagners sand plant quarry where a dam wall had been constructed”, “the Wagner quarry” and “Wagner’s dam”.  As to identification, the plaintiffs further rely on Mr Jones’ concluding words: “Grantham [is] a complete cover up.  I’ve got news for all of them.  No more.”  In its proper context, as submitted by the plaintiffs, the reference to “them” is a pronoun referring to two or more people.[95]
  3. [119]
    For the reasons stated in [47] to [50] above, the Eighth Matter was of and concerning each of the plaintiffs.
  4. [120]
    It is in issue whether the imputations are conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    caused the deaths of 12 people by constructing a dam at his quarry across Lockyer Creek which collapsed under the weight of water, causing the Grantham flood;

(aa) in the alternative to (a), caused the deaths of 12 people when a dam at his quarry constructed across the Lockyer Creek collapsed under the weight of water, causing the Grantham flood; and

  1. (b)
    in concert with the flood inquiry and authorities, conspired in a cover-up of his culpability for the deaths of 12 people in the Grantham flood, as well as a disgusting campaign of bullying and intimidation of anyone who stood up and asked questions or raised issues about his role in causing the flood.[96]
  1. [121]
    The content of this broadcast repeats what had already been said by Mr Jones in the Seventh Matter.  In listening to this broadcast, however, it is apparent that Mr Jones takes on an accusatory tone.  One of the passages from the broadcast states:

“Marty Warburton pointed out how it happened.  He’d seen 14 floods in 21 years.  He said it wasn’t a normal wall of water.  He said the water had been diverted out of Lockyer Creek at the Wagners sand plant quarry where a dam wall had been constructed across the creek and the dam wall in the Wagner quarry had collapsed through the force of water.”

  1. [122]
    In referring to “Wagners sand plant quarry” and “a dam wall”, Mr Jones slows his delivery and emphasises each of these words by separating them.  Later in the broadcast he adopts a similar delivery technique in saying the words “a man made construction in a designated water course”.  Prior to emphasising these words, Mr Jones had yet again recounted Mr Warburton’s terrible experiences in the course of the flood disaster which included the following:

“And then he said this; I saw arms flapping around like someone trying to swim.  I leant over the awning, he climbed up to get safety from the water and grabbed the hand of the person to drag them onto the awning.  As I pulled on the arm the person rolled over and their whole face was missing.  I saw right into their skull.  In shock I let go.  This still haunts me to this day.”

Mr Jones recounted the same story in the Second and Seventh Matters complained of.  The retelling of Mr Warburton’s horrific experience is followed by Mr Jones informing the listener of Mr Warburton’s explanation as to how “it” happened. 

  1. [123]
    Similar to the Third and Seventh Matters, imputations (a) and (aa) are alternatives.  The defendants submit that neither of these alternative imputations arise, because the ordinary reasonable listener would not conclude anything adverse against the plaintiffs where the sting is directed not at a personal condition of their own, but at an event that occurred at their property, for which no blame is laid.  There is, for example, no suggestion in the Eighth Matter complained of that the dam wall had been constructed illegally or negligently or improperly.  Merely having a dam wall at the Wagner quarry collapse under the weight of water behind it does not, according to the defendants, equate to an allegation that the Wagners caused the deaths of people in the flood.[97]  The difficulty I have with this submission is that Mr Jones in the broadcast, with some emphasis, states that a dam wall had been constructed across the creek, and that the dam wall in the Wagner quarry had collapsed through the force of water.  Mr Jones refers to this as a “man made construction in a designated water course”.  The inference that a listener would draw is that it was the Wagners who were responsible for building a dam wall in a designated watercourse.  It is the collapse of this dam wall which is referred to for the purposes of explaining “how it happened”.  While Mr Jones does not explain what “it” is, Mr Jones has introduced Mr Warburton to the listener as “one of the witnesses to all of this at Grantham where 12 people died and no one has bothered to find out how”.  The structure of the broadcast and the words Mr Jones emphasises would convey to an ordinary reasonable listener that the Wagners were responsible for constructing a dam wall at the quarry, the collapse of which caused the Grantham flood.  Imputation (a) is conveyed.
  2. [124]
    Imputation (b) is said to be conveyed by the second part of the broadcast.  The plaintiffs submit that the statements made in the second part of the broadcast invite speculation as to two matters: who was responsible for the bullying and intimidation of people, and who was involved in the cover-up.  Mr Jones having provided no answers, the plaintiffs submit that the listener is invited to speculate as to who was involved in the cover-up.  The difficulty with imputation (b) is that the meaning encompasses a conspiracy between the Queensland Floods Inquiry, the authorities, and the plaintiffs in a cover-up of the plaintiffs’ culpability for the deaths of 12 people in the Grantham flood.  This alleged conspiracy extends to “a disgusting campaign of bullying and intimidation”.  I accept the defendants’ submission that the ordinary reasonable listener would not derive a meaning that implicated the plaintiffs in a cover-up and bullying and intimidation “in concert” with others, including “the authorities” and the “flood inquiry”.[98]  I accept that only a mind avid for scandal would consider the plaintiffs implicated in corrupt activity of this kind in listening to this broadcast.
  3. [125]
    Imputation (b) is not conveyed.
  4. [126]
    I therefore determine that the following imputation was conveyed by the Eighth Matter complained of:
  1. (a)
    that each of the first, second, third and fourth plaintiffs caused the deaths of 12 people by constructing a dam at his quarry across Lockyer Creek which collapsed under the weight of water, causing the Grantham flood.
  1. [127]
    The defendants submit that this imputation is not defamatory, because the focus of the meaning is not a personal attribute or condition, but a reflection upon something that happened at premises owned or operated by the plaintiffs, and with no blame attributed to them.  A person would not think less of or shun or avoid a person simply because it has been noted that an event (however tragic) originated from their premises.[99]  This submission does not take into account the emphasis given by Mr Jones to the words “the Wagners sand plant quarry” and “dam wall” and “man made construction in a designated water course”.  When listened to as a whole, the broadcast conveys that it was the collapse of a man-made wall in a designated watercourse at the plaintiffs’ quarry which caused the deaths of 12 people.  This in turn conveys that the Wagners are to blame.  Such blameworthiness for the deaths of 12 people would cause people to think less of or shun or avoid each of the plaintiffs.  Imputation (a) is defamatory.
  2. [128]
    In respect of imputation (a) (and similar imputations conveyed by earlier broadcasts), the defendants accept[100] that from the Ninth Matter complained of, this imputation is more readily conveyed by most of the relevant broadcasts.[101]  Mr Jones, from the ninth broadcast, becomes more specific and focussed in the accusations he makes against the plaintiffs in relation to the Grantham Flood event.

Ninth Matter

  1. [129]
    The Ninth Matter was broadcast on radio 2GB on 11 March 2015 at approximately 8.10 am.  Attachment 9 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [130]
    2GB and Mr Jones admit that the Ninth Matter is of and concerning each of the plaintiffs.  This is unsurprising as Mr Jones in the course of the broadcast refers to “the quarry owner” as “the Toowoomba based Wagner Brothers of Wellcamp Airport infamy”, and to “the Wagner Brothers”.
  3. [131]
    It is in issue whether the imputations are conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    caused the deaths of 12 people by constructing a wall at his quarry that burst, unleashing a veritable tsunami causing the 2011 Grantham flood which deaths could have been completely avoided had he not constructed the wall;
  1. (b)
    callously refused to admit to his legal liability for the deaths of 12 people in the Grantham flood disaster, when a man-made wall at his quarry burst, causing a veritable tsunami that killed 12 people;
  2. (c)
    sold his quarry in order to attempt to evade his legal liability for causing the deaths of 12 people in the Grantham flood disaster;
  3. (d)
    lied publicly in claiming that the embankment at his quarry was part of the natural landscape rather than being man-made, in order to evade his legal liability for the deaths of 12 people after the embankment collapsed; and
  4. (e)
    was a callous and selfish person in that he built an airport without an environmental impact statement, a health impact statement, a community impact statement, a water impact statement, and without any compensation for people living in hopeless proximity to the airport.[102]
  1. [132]
    Mr Jones commences the broadcast by stating that he will be returning to the Grantham issue “in order that justice be done to the families of the 12 people killed in that flood in 2011”.  He refers to a Victorian-based law firm, Maddens, undertaking several site visits to Grantham and issuing the Wagner brothers with a formal demand seeking an admission of liability or voluntary mediation.  Mr Jones then makes the following reference to the Wagner brothers:

“This is the airport mob, Wagner used to get his own way, no longer.  No admission has been forthcoming from Wagners, the owners of the quarry.  As soon as they knew they were in trouble though, they sold it.  And that was the quarry – they were the quarry walls that burst and a veritable tsunami ensued.”

  1. [133]
    After referring to the Wagner brothers as being “of Wellcamp Airport infamy”, Mr Jones makes the following statement in relation to the airport:

“You see, the Wagner Brothers are used to getting their own way, doing as they liked.  Build an airport – no environmental impact statement, no health impact statement, no community impact statement, no water impact statement, nothing, just build it.  No compensation for those living in hopeless proximity to the airport.”

  1. [134]
    Mr Jones then refers to the embankment at the quarry: “Well of course the Wagners say the embankment was part of the natural landscape.  That is a palpable untruth.  Locals know the quarry was manmade.”  Mr Jones again emphasises that no admission has been forthcoming, no voluntary mediation has taken place as requested by Maddens.  He then refers to the Grantham Flood event in these terms: “This was not an act of god, this devastation was brought about by human intervention, it could have been avoided.”  He then suggests to the listener that they should go to Facebook and check the maps: “…it’ll frighten the hell out of you”. 
  2. [135]
    I accept the plaintiffs’ submission that Mr Jones’ tone is determined, indignant and accusing.  When mentioning the plaintiffs his tone is contemptuous.[103]
  3. [136]
    As to the Ninth Matter, the plaintiffs submit as follows:

“Overall, the Ninth Matter was calculated to leave the ordinary reasonable listener with the impression that the plaintiffs caused the deaths of those 12 people in Grantham, a tragedy brought about by human intervention.  That human intervention they are told is a man-made wall, of dubious legality, which burst releasing a tsunami.  In addition to this, the ordinary reasonable listener would have understood Mr Jones to be saying as a matter of fact that the Wagners are in trouble for these events, and that this trouble was so serious that they sold the quarry.  The sale of the quarry – which occurred as soon as they ‘knew they were in trouble’ – could only have been done to avoid liability.”[104]

For these reasons, the plaintiffs submit that imputations (a), (b) and (c) are conveyed.  I accept this submission.  The tone of the broadcast and the derogatory way in which Mr Jones refers to the plaintiffs conveys these three imputations.  Mr Jones informs the listener that he is pursuing the Grantham issue in order that justice be done to the families of the 12 people killed.  He refers to Maddens having undertaken site visits to Grantham and spoken to residents.  It is in this context that Mr Jones specifically refers to the quarry walls bursting and a veritable tsunami ensuing.  The bursting of the quarry walls is later referred to by Mr Jones as “not an act of god”.   The devastation, according to Mr Jones, was brought about by human intervention and could have been avoided.  On listening to the broadcast imputation (a) would, in my view, be conveyed to the ordinary reasonable listener.  So too imputation (b).  Mr Jones refers to “Wagner” as someone who “used to get his own way, no longer”.  This is in the context of Maddens having requested an admission of liability or voluntary mediation.  The inference is that the plaintiffs are forestalling the justice for the families that Mr Jones is seeking by not admitting liability.  The plaintiffs have pleaded that imputation (b) includes that this refusal to admit legal liability was callous.  The defendants correctly submit that the word “callous” was not said by Mr Jones in the course of the broadcast.  A similar criticism is made of the use of the word “callous” in relation to imputation (e).  The question is not, however, whether the word was used, but rather what an ordinary reasonable listener would infer from the words actually used and the tone used in the delivery.  Mr Jones twice refers to the Wagners as people who are used to getting their own way.  He also refers to the Wagners as “doing as they liked”.  In the context of the broadcast, an ordinary reasonable listener would infer that in refusing to admit their legal liability the Wagners are callous people.  Imputation (b) is conveyed.

  1. [137]
    As to imputation (c), this arises from the ordinary natural meaning of the words used by Mr Jones, namely, “As soon as they knew they were in trouble though, they sold it”.  An inference that the Wagners did this to evade legal liability may be readily drawn from these words; in particular, the timing of the sale of the quarry is equated by Mr Jones to the time when the plaintiffs first “knew they were in trouble”.
  2. [138]
    Similarly with imputation (d), this also arises from the words used by Mr Jones to the effect “of course the Wagners say the embankment was part of the natural landscape”, which Mr Jones describes as a “palpable untruth”.  The ordinary reasonable listener would have understood this to mean that each of the plaintiffs lied publicly in claiming that the embankment was part of the natural landscape rather than man-made.  It is a ready inference to draw that this lie was told in order to avoid legal liability for the deaths of 12 people after the embankment collapsed.
  3. [139]
    As to imputation (e), the derogatory tone in which Mr Jones refers to the Wagners, and his description of their lack of regard for both community and environmental concerns, would convey to the ordinary reasonable listener that each of the plaintiffs was a callous and selfish person.
  4. [140]
    I determine that each of the five pleaded imputations are conveyed.
  5. [141]
    2GB and Mr Jones admit that if imputations (b) to (e) are conveyed, they are defamatory.  They do not admit that imputation (a) is defamatory on the same basis that I have already rejected in [127] above.  Each of the five pleaded imputations conveyed by the Ninth Matter complained of is defamatory.

Tenth Matter

  1. [142]
    The Tenth Matter was broadcast on radio 2GB on 12 March 2015 at approximately 7.52 am.  Attachment 10 to these Reasons is a transcript of the words spoken by Mr Jones. 
  2. [143]
    There is no issue that the Tenth Matter is of and concerning each of the plaintiffs.
  3. [144]
    It is in issue whether the imputations are conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    built an airport without seeking proper approvals which he knew were required with disgraceful disregard for the interests of the community;
  2. (b)
    caused the deaths of 12 people by constructing a massive wall at his quarry that collapsed under the weight of water, unleashing a tsunami, in the 2011 Grantham flood;
  3. (c)
    has engaged in a cover-up of his culpability for the deaths of 12 people in the 2011 Grantham flood, thereby denying the prospect of justice for the still grieving townspeople of Grantham; and
  4. (d)
    told a disgraceful lie by stating that a massive wall that he constructed at his quarry and which collapsed unleashing the tsunami that caused the 2011 Grantham flood that killed 12 people, was part of the natural landscape.[105]
  1. [145]
    Mr Jones in this broadcast speaks with great conviction.  Near the beginning of the broadcast Mr Jones refers to the fact that he has been campaigning almost alone in relation to the Grantham Flood event for years.  He continues:

“… it now appears that the Toowoomba-based Wagners are in the eye of the storm.  They thought they could get away with building an airport without seeking proper approvals because they had a gutless council, The Toowoomba Regional Council, and they had the Newman Government’s ear so the community were walked all over.  Then the quarry; they created a wall around the Grantham sand quarry.  Typically Wagners; what they didn't need from the process they just parked alongside the quarry and built it up, and up, and up, and up, creating a massive wall.  Wagners dishonestly have said it was part of the natural landscape; that’s a lie, it was man made.  The quarry then became a bathtub, and at a focal point in the 2011 floods the weight of the water collapsed the embankment wall, and a tsunami happened in seconds.”

  1. [146]
    Later in the broadcast Mr Jones states:
  • “Significantly Wagners couldn’t wait to sell the quarry in the same years the floods to Boral.”
  • “Grantham residents are considering a class action against Wagners.” 
  • “Maddens a Victorian law firm has visited the town.”
  • “It’s game on and there are plenty of people cheering from the sidelines at the prospect of justice to these still grieving townspeople, and that justice may at last be done.”
  • “All eyes on Annastacia Palaszczuk.  There has to be an inquiry into this cover-up.”
  • “Independently of that it’s hard to escape the conclusion that the lawyers on behalf of the residents have a massive case against Wagners. I think some people call it Karma, don’t they?”
  1. [147]
    In listening to this broadcast, the ordinary reasonable listener would gain the distinct impression that after a lengthy campaign, conducted by Mr Jones, justice is finally coming for the residents of Grantham against those responsible, the Wagners.
  2. [148]
    As to imputation (a), the defendants accept that the first part of that imputation is conveyed.  The defendants submit, however, that the words “disgraceful disregard for the interests of the community” are not conveyed:

“… it becomes necessary to ask whether it is merely the fact that the airport was built without approvals that constitutes the disgraceful disregard for the interests of the community, or whether that condition is said to be additional to the act of building without approvals – was there something about the building process that meant that it should be understood that the plaintiffs ‘built an airport … with disgraceful disregard for the interests of the community’?  Such uncertainty in meaning which is not the responsibility of ambiguity in the publication, means that the plaintiffs’ meaning will not arise.  The ordinary listener will not, through implication, land at a meaning that fails to distil the broadcast to its natural meaning.”[106]

  1. [149]
    I do not accept this submission.  Mr Jones goes well beyond simply alleging that the Wagners built an airport without seeking proper approvals.  He refers to the plaintiffs thinking they could get away with building an airport without seeking proper approvals because of their connections.  This permitted the Wagners to walk all over the community.  Mr Jones then infers that this type of attitude is reflected in the plaintiffs’ operation of the quarry.  In this regard he refers to the building up of the massive wall as “typically Wagners”.  All this is said in the implied context of the Wagners finally being made to answer for their role in the Grantham floods, described by Mr Jones as a “cover-up”.
  2. [150]
    Imputation (b) is conveyed by the words “deadly Grantham floods”, which killed 12 people.  The construction of the wall at the quarry is referred to by Mr Jones as being “typically Wagners”.  Mr Jones identifies the Wagners as the people responsible for “creating a massive wall” at the quarry. Mr Jones, as a factual assertion, unequivocally tells the listener that “the weight of the water collapsed the embankment wall, and a tsunami happened in seconds.  Twelve people had no hope, they lost their lives.”  Although Mr Jones in the course of this broadcast calls for a fresh inquiry, he is as early as 12 March 2015 unequivocally informing his listening audience that it was the collapse of a massive wall created by the Wagners at their quarry which resulted in a tsunami causing the deaths of 12 people.  No inference is required to be drawn by the ordinary reasonable listener for imputation (b) to be conveyed.  It is, in my view, conveyed by the ordinary and natural meaning of the words used by Mr Jones. 
  3. [151]
    As to imputation (c), the defendants submit that there is no obvious link between the allegation of a cover-up and the plaintiffs so as to mean that the broadcast would be understood as including an inference that the plaintiffs had engaged in a cover-up of their culpability for the deaths of people in Grantham.  This submission ignores the primary thrust of the broadcast, which is that the Wagners are finally facing justice.  Mr Jones specifically calls for an inquiry into “this cover-up”.  He refers to the “Toowoomba-based Wagners” as being “in the eye of the storm”.  Prior to using the word “cover-up” he states, “Significantly Wagners couldn’t wait to sell the quarry in the same year as the floods to Boral”.  Mr Jones also makes reference to justice at last being done.  The inference that the Wagners have been involved in this alleged cover-up (especially given their connections) is irresistible.  Imputation (c) was conveyed.
  4. [152]
    As to imputation (d), the defendants question why the plaintiffs describe the lie as “disgraceful”:

“… what is the utility it must be said, in adding that the lie told in relation to the quarry was a disgraceful one.  Must it be assumed that not all lies are disgraceful, but that the lie told here, for some reason, lies in that category – that it was said to be an odious, or contemptible lie? It is difficult to understand why the plaintiffs continue to add adjectives of this kind, when to do so stretches beyond reason the words employed in the broadcast.”[107]

What makes the lie disgraceful in the context of this broadcast is that Mr Jones unequivocally asserts that it was the collapse of the massive, man-made wall which caused the deaths of 12 people.  Such a lie in this context may be viewed by an ordinary reasonable listener as a disgraceful lie; that is, a shameful, dishonourable or disreputable lie.  It is such a lie because it is told to avoid culpability for the deaths of 12 people.

  1. [153]
    I determine that each of the four pleaded imputations are conveyed.
  2. [154]
    The defendants accept that, if conveyed, imputations (a), (c) and (d) are defamatory.  The defendants deny that imputation (b) is defamatory, on the same basis that I have already rejected.  Each of the four imputations conveyed are defamatory.

Eleventh Matter

  1. [155]
    The Eleventh Matter was broadcast on radio 2GB on 17 March 2015 commencing at about 7.16 am.  It comprises words spoken by Mr Jones and Mr Cater.  Attachment 11 to these Reasons is a transcript of these words.
  2. [156]
    It is not in issue that the Eleventh Matter is of and concerning the plaintiffs. 
  3. [157]
    It is in issue whether the imputations were conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    dishonestly tried to get away with building an airport in Toowoomba without seeking proper approvals from the Toowoomba Regional Council, because he knew the Council was gutless and the state government was on side, letting him walk over the community;
  2. (b)
    built the infamous Wellcamp Airport in disregard of the interests of the community without first obtaining, as he was required to do, an environmental impact statement, a health impact statement, a community impact statement or a water impact statement, or paying the compensation owing to those adversely affected because they lived in close proximity to the airport;
  3. (c)
    caused the deaths of 12 people by constructing a massive wall at his quarry that collapsed under the weight of water, causing the 2011 Grantham flood;
  4. (d)
    told a disgraceful lie by stating that a massive wall that he constructed at his quarry, and which collapsed, causing the 2011 Grantham flood that killed 12 people, was part of the natural landscape; and
  5. (e)
    engaged in a cover-up of his culpability for the deaths of 12 people in the 2011 Grantham flood, thereby denying the prospect of justice for the still grieving townspeople of Grantham.[108]
  1. [158]
    The plaintiffs’ pleaded case is that they rely on imputations (a) and (b) as against 2GB and Mr Jones and imputations (c), (d) and (e) as against 2GB, Mr Jones and Mr Cater. 
  2. [159]
    Prior to introducing Mr Cater, Mr Jones largely repeats what he said in the Tenth Matter.  Additionally, Mr Jones refers to a hydraulic report by DHI commissioned by The Australian newspaper.  He states:

“After a massive agitation from a range of people – I was one of them – the hydraulic engineers DHI found the collapse of the quarry wall meant that the flood had occurred more quickly, there was less time for evacuations and the quarry owner, as I said, was the Toowoomba based Wagner brothers of Wellcamp Airport infamy.”

  1. [160]
    Mr Jones then introduces Mr Cater as “the quite brilliant and internationally acclaimed journalist”.  Mr Jones emphasises how much work Mr Cater has done in relation to the Grantham Flood event:

“Nick Cater has done phenomenal work on this.  He’s analysed.  He’s investigated from every which way.  He went there.  He’s talked to everybody.  He saw the helicopter photos.  He’s seen video evidence.  He’s read all the reports.  He’s seen hundreds of photographs.  He’s read the harrowing accounts given to the Coroner and he shares the view that I share; this must be the subject of a major inquiry.”

  1. [161]
    Mr Cater in identifying the cause of the devastation states:

“It never seemed to make any sense at all to me, the line that was being put by the official flood commissions that this was simply an act of God, that nothing could be done to avoid this because when you go there and look at the evidence on the ground, you talk to people, everything points to one thing and that is this massive wall of water two to two-and-a-half metres high that just came sweeping through the town with no warning whatsoever.

That had to be started by something and all the evidence points as you just said to the wall at the quarry that collapsed.  It was like a break in a dam.  The water gushes out with huge velocity and huge force and that was in the end what caused the damage, what kills people. 

It’s very hard to escape the conclusion that if it was not for the quarry wall twelve people would not have lost their lives that day and yet it’s taken so long as you know, Alan, more than four years now of battling to try and get close to the truth, to try and establish the truth.  I believe that we are close now and that the [DHI] report backs us all the way on this.  It’s still a long way to go.”

  1. [162]
    Mr Jones and Mr Cater then proceed to make various criticisms of the Queensland Floods Inquiry and cast doubt on the findings of the hydrologist engaged by the Inquiry, Dr Phillip Jordan.  Mr Cater concludes the interview with Mr Jones by calling for a fresh inquiry.
  2. [163]
    As to imputation (a), the defendants submit that the relevant words of the broadcast, which are not materially different to the Tenth Matter, do not support a meaning of dishonesty.  There is, for example, no suggestion of deceitful behaviour.  According to the defendants, the listeners are told that the Wagners thought they could get away with building the airport without seeking the proper approvals because it was something that could be achieved given the local council and state government were on side – not because the relevant decision-makers were deceived by the plaintiffs as to proper approvals to be obtained.[109]  I do not accept this submission.  Mr Jones informs the listener that “the Toowoomba based Wagners are now in the eye of the storm.  They thought they could get away with building an airport without seeking proper approvals because they had a gutless council on side and the Newman Government on side and the community were walked over, then the quarry.”  Mr Jones is suggesting to the listener that the Wagners sought to get away with something that they ought not get away with.  That is, the listener is asked to infer that the Wagners ought to have built the airport by seeking proper approvals.  The reason given for why they thought they could get away with it was they had a “gutless council on side and the Newman Government on side”.  This resulted in the community being walked over. 
  3. [164]
    The plaintiffs submit that this creates a clear impression that the Wagners have engaged in something that they knew was either bad or wrong and for which they should be held to account.  That is the message that would have been conveyed to the ordinary reasonable listener.  Mr Jones, by drawing a connection between the Wagners getting away with something and an association with government, suggests something less than honest.  As submitted by the plaintiffs, the statements as delivered invite the listener to adopt a suspicious approach to what they are being told.  The listener, who is expected to engage in a degree of loose thinking, is given the impression that there is something distinctly underhanded about the complete lack of approvals and the Wagners’ connection with government.  The implication to be drawn from this, and which the ordinary reasonable listener would have drawn, was that there was something dishonest about the entire process, albeit they are not in direct terms told what that dishonesty was.  That process permitted the Wagners to build an airport without proper approvals and meant that the “community were walked over”.[110]  The broadcast creates this impression, namely that the Wagners have dishonestly tried to get away with building an airport without seeking proper approvals.  Imputation (a) was conveyed.
  4. [165]
    As to imputation (b), the defendants suggest that the pleaded imputation seeks to enjoin two concepts – the building of the airport in disregard of the interests of the community, with the failure to obtain a range of impact statements and pay compensation, in circumstances where these matters in the broadcast are separated.[111]  The mere fact that these references are separated is not, in my view, relevant to whether the imputation is conveyed.  The “two concepts” as suggested by the defendants are connected in the broadcast by subject matter, namely the building of the airport.  Given the commonality of subject matter, the words spoken by Mr Jones would have conveyed to an ordinary reasonable listener imputation (b).
  5. [166]
    As against 2GB and Mr Jones, imputations (c), (d) and (e) are conveyed for the reasons given above in relation to the Tenth Matter complained of.[112]  The imputations are conveyed by the words spoken by Mr Jones.  Imputation (c) is conveyed by the following words:
  • “The deadly Grantham floods in Queensland of 2011.”
  • “The Toowoomba based Wagners are now in the eye of the storm.”
  • “They created a wall around the Grantham sand quarry – typically Wagners – and what they didn't need from the process they just parked alongside the quarry creating a massive wall.”
  • “Wagners said it was part of the natural landscape.  That’s a lie.  It was manmade.”
  • “The quarry became a bathtub and a focal point in the 2011 floods.  The weight of the water collapsed the embankment.  Twelve people had no hope.  Wagners of course couldn’t wait to sell the quarry in the same year as the floods, to Boral …”
  • Mr Jones also refers to the report of hydraulic engineers DHI which he says “found the collapse of the quarry wall meant that the flood had occurred more quickly, there was less time for evacuations”.  Immediately following this quote Mr Jones states: “…and the quarry owner, as I said, was the Toowoomba based Wagner brothers of Wellcamp Airport infamy.”
  • “This was not an act of God.  This devastation was brought about by human intervention.  It could have been avoided.”
  1. [167]
    From these words, an ordinary reasonable listener would gain the impression that it was the Wagners who constructed a massive wall at their quarry, the collapse of which caused the Grantham Flood event.
  2. [168]
    As to imputation (d), it is conveyed by the following words spoken by Mr Jones:
  • “Wagners said it was part of the natural landscape.  That’s a lie.  It was manmade.”
  • “Well the Wagners say the embankment was part of the set of the natural landscape.  They’re kidding.”
  1. [169]
    As to imputation (e), it is conveyed by the following words spoken by Mr Jones:
  • “Grantham residents are considering a class action now against Wagners.”
  • “Maddens, a Victorian law firm, has visited the town.”
  • “It’s game on and there are a lot of people cheering from the sidelines at the prospect of justice at long last being done to these grieving townspeople.”
  • “All eyes on Annastacia Palaszczuk.  There has to be an inquiry into this cover up.”
  1. [170]
    Mr Jones does not directly tell the listener what is being covered up or who is doing the covering up.  In my view, however, an ordinary reasonable listener would readily infer, with all the derogatory comments made by Mr Jones about the Wagners, that they, at least, are involved in a cover-up of their culpability for the deaths of 12 people.  Mr Jones refers to the residents of Grantham “at long last” achieving justice, in the context of a class action against the Wagners, the same people who, according to Mr Jones, have lied about the massive wall being man-made.
  2. [171]
    I determine that as against 2GB and Mr Jones, the Eleventh Matter complained of conveys each of the five pleaded imputations.  2GB and Mr Jones admit that, if conveyed, imputations (a), (b), (d) and (e) are defamatory.  For reasons given above, I do not accept the defendants’ submission that imputation (c) is not defamatory.  Each of the five imputations is defamatory of each of the plaintiffs. 

Mr Cater’s liability

  1. [172]
    The Eleventh Matter complained of is the only cause of action pleaded by the plaintiffs against Mr Cater.  His liability is to be considered separately.
  2. [173]
    As against Mr Cater, the plaintiffs’ pleaded case is that they rely on imputations (c), (d) and (e) as being conveyed by the Eleventh Matter.[113]  In their written submissions, however, the plaintiffs limit the case against Mr Cater to imputation (c) being conveyed.[114]  Mr Cater admits publication of the words attributed to him in the Eleventh Matter.[115]
  3. [174]
    From the plaintiffs’ written submissions it is apparent that Mr Cater’s liability is sought to be established on the basis that he was an accessory to the publication of the Eleventh Matter and “conduced to the publication by Mr Jones and [2GB] in a number of ways”.[116]  “Conduce” has the meaning of “helped bring about a result”. 
  4. [175]
    The plaintiffs rely on the principle that any person who publishes or participates in a publication of defamatory matter may be liable in respect of it.  In Webb v Bloch[117] Isaacs J identified the principle by reference to Starkie on the Law of Slander and Libel:

“‘All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected.’  In R v Paine it is held: ‘If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty’ … In The Queen v Cooper Lord Denman CJ said: ‘If a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request: he contributes to a misdemeanour and is therefore responsible as a principal.’”

  1. [176]
    The plaintiffs identify five matters by which it is alleged that Mr Cater conduced to the publication of the Eleventh Matter.
  2. [177]
    First, Mr Cater sent an email on 13 October 2014 to Mr Jones in which he asserted that “there was no doubt” in his mind that the Grantham flood “was a man-made disaster”.[118]  The plaintiffs submit that there is a clear inference arising from this email that Mr Cater was doing as much as possible to encourage Mr Jones to give the Grantham issue, and his theory about it, air time: “He would not have been writing to Mr Jones if he didn’t want Mr Jones to broadcast that Grantham was ‘a man-made disaster’ in respect of which justice had not been done.”[119]  The email reads as follows:

“Alan, thanks for giving Marty Warburton a voice this morning.  As you know I have spent considerable time examining the circumstances of the Grantham flood.  There is no doubt in my mind that this was a man-made disaster.  It should be fully investigated.  There must be a professional review of the hydrology report accepted by the floods commission.  My heart goes out to the people [of] the Lockyer Valley who suffered in the flood and continue to suffer because they feel no one believes them.  This is Australia and they deserve better. Nick Cater.”

  1. [178]
    Second, Mr Cater sent Mr Jones a six page letter dated 14 October 2014[120] which includes the following statements:

“I am writing to you in a private capacity to thank you for drawing attention to the unanswered questions about the circumstances that led to the fatal flash floods in Toowoomba an [sic] the Lockyer Valley on the afternoon of January 10, 2011.

… The flood waves that devastated the town of Grantham and drowned 10 adults and two children originated at Grantham quarry where an artificial levee, less than 10 years old, held back millions of tons of stormwater before bursting in two places.

Eyewitness … accounts supported by several hours of aerial video footage and hundreds of photographs paint a consistent picture at odds with the commission’s finding that Grantham was flooded by the natural overflow from Lockyer Creek. 

The most serious damage, however, was caused by a second torrent, many times more powerful than the first.  It came in a straight line from Grantham Quarry, 2.5 km to the west, and swept in waves more than two metres high along the Gatton-Helidon Rd, where nine of those killed live.

Since the last significant flood in 1996, however, an obstacle had been placed in the time worn path.  A crudely constructed levee, three to five metres high, now stretched for 380 metres on the western boundary of Wagner’s Quarry.

As the roaring creek struck the tight bend at a velocity of some 5 metres a second the kink in the water swirled back on itself, … creating a temporary reservoir covering 100 hectares of more of farmland, an affect [sic] hydrologists describe as ponding.

Prompted by the concerns of local people, the Commission of Inquiry made some attempt to investigate the affect [sic] of the quarry.

It’s [sic] conclusion, that the levee had not worsened the floods, was based on the untested evidence of a single expert witness: Dr Phillip Jordan, a senior hydrologist for Sinclair Knight Merz.

Jordan’s findings relied almost entirely on a computer simulation exercise conducted from his offices in Victoria.  He did not visit … until April 5, almost 4 months after the floods, and a week before delivering his interim report to the Commission.

By that time much of the debris had been removed.  Wagners had already begun repairing the gap in the wall and other alterations had been made to the landscape, complicating the site inspection.

The only reasonable conclusion to make is that the flood started at the quarry with the collapse of the wall.

Justice demands a fresh inquiry and a re-examination of the hydrology report by Sinclair Knight Mertz.”

  1. [179]
    Third, Mr Cater appeared as a guest on Mr Jones’ program on 15 October 2014. 
  2. [180]
    Fourth, Mr Cater wrote a further letter to Mr Jones dated 15 October 2014 which included the following statements:[121]

“Many thanks for giving me air time today.  I agree with you that there must be a fresh inquiry into the events surrounding the January 10, 2011 floods in the Lockyer Valley.  The evidence that the wall of water form[ed] behind the quarry wall is overwhelming, as the attached picture shows.  …

You can also see the huge reservoir of water banked up over farmland to the right of the picture – towards the west – because it had been held back by the levee. … 

To say that the quarry wall did not adversely affect the flow of water towards Grantham is to deny the evidence of this footage.

I’ll send some more material shortly.”

  1. [181]
    Fifth, Mr Cater appeared as a guest on Mr Jones’ program on 29 October 2014 (the Third Matter) which included the following exchange:

“NICK CATER: Yeah, that’s right.  Because, you know, the story you heard from Marty Warburton, you will hear scores of times over.  People that were caught in that sudden rush of water – inland tsunami, some people called it.  And those statistics you drew attention to just now are very, very interesting because it does show that this was an extraordinary flood.  There are lots of floods in Australia, sadly people get caught in them, sometimes people drown.  But it is highly unusual to see houses, numbers of houses, floating down the street.  In one case a house exploding because – what happened was it got so filled with water that the poorly constructed double brick veneer couldn’t hold that water and the town house basically exploded.  Eye witnesses tell of this but, you know, you can look at the pictures afterwards, you can see what happened.  Three people died in that house.  So this was an extraordinary event and you’d think that a Flood Commission would go to enormous lengths to find out what happened.  But what they did was commission one single hydrology report; that was all.  It was by Sinclair Knight Merz, the scientist was Dr Phillip Jordan, he produced his interim report without even visiting Grantham. 

ALAN JONES:  I’m sorry to interrupt you, but Sinclair Knight Merz has got their hands over everything in Queensland, haven’t they?  Aren’t they the people who were heavily involved in working with Wagners on the Wellcamp Industrial Estate – they’re the same people.

NICK CATER:  And I think, Alan, we’ve gotta be very careful with this story, how far we go.  There may be cover ups, things that have undoubtedly been covered up – I don’t know by who or why.”

  1. [182]
    The plaintiffs submit that these communications demonstrate that Mr Cater was a longtime protagonist of the thesis that the collapse of the quarry wall, which Mr Cater told Mr Jones was a “crudely constructed levee” at “Wagner’s Quarry”,[122] was the cause of the fatal Grantham flood.  The plaintiffs further submit that these communications demonstrate that Mr Cater was not only an informant to Mr Jones, but was actively encouraging Mr Jones to take up his thesis and broadcast it.  As such, Mr Cater conduced to Mr Jones’ broadcast propagating his thesis and positively encouraged Mr Jones to say these things.[123]
  2. [183]
    The plaintiffs assert that it is against this background that the exchanges between Mr Jones and Mr Cater in the Eleventh Matter occur.  The exchanges that the plaintiffs rely on are Mr Jones’ opening statement, which effectively repeated what he said in the tenth broadcast, and Mr Cater’s statement set out in [161] above.  In particular, the plaintiffs rely on the following words spoken by Mr Cater:

“That had to be started by something and all the evidence points as you just said to the wall at the quarry that collapsed.  It was like a break in a dam.  The water gushes out with huge velocity and huge force and that was in the end what caused the damage, what kills people. 

It’s very hard to escape the conclusion that if it was not for the quarry wall twelve people would not have lost their lives that day and yet it’s taken so long as you know, Alan, more than four years now of battling to try and get close to the truth, to try and establish the truth.  I believe that we are close now and that the [DHI] report backs us all the way on this.  It’s still a long way to go.” (plaintiffs’ emphasis)

  1. [184]
    From this passage the plaintiffs make the following submissions:
  1. (a)
    Mr Cater is explicitly agreeing with Mr Jones’ previous remarks, in particular about the quarry wall, viz, that DHI had found that the collapse of the quarry wall meant that the flood occurred more quickly and there was less time for evacuation, and also the remarks concerning who owned the quarry, the Toowoomba based Wagner brothers;
  2. (b)
    Mr Cater does not in any way attempt to qualify his agreement with what Mr Jones has said by distinguishing between Mr Jones’ prior accusations.  The ordinary reasonable listener would engage in a degree of loose thinking in relation to the broadcast, and jump to conclusions.  With no time to think or reflect on a transient broadcast, he or she would think that Mr Cater was endorsing and agreeing with all that Mr Jones had said;
  3. (c)
    Mr Cater is therefore an accessory to the publication; his words “all the evidence points as you just said to the wall at the quarry that collapsed” and previous communications with Mr Jones were the means by which Mr Cater conduced to the broadcast.  In doing so, Mr Cater conveyed imputation (c) or an imputation not different in substance.
  1. [185]
    I have set out the plaintiffs’ submissions in some detail because I have difficulty in accepting them. 
  2. [186]
    First, Mr Cater is sought to be made liable on a case that has not been pleaded.  The plaintiffs’ pleaded case is that in its natural and ordinary meaning the Eleventh Matter conveyed imputation (c).  The plaintiffs’ case that Mr Cater is “an accessory to the publication”[124] is not pleaded.  Mr Cater does not take this pleading point.  It remains the case, however, that the plaintiffs seek to establish Mr Cater’s liability in respect to imputation (c) being conveyed by the Eleventh Matter not merely by reference to the words spoken by Mr Cater, but on the additional basis that he conduced to the publication which conveyed imputation (c).
  3. [187]
    Second, as I have found, imputation (c) is conveyed by the words spoken by Mr Jones in his introductory remarks.  These remarks are substantially the same as those made by Mr Jones in the tenth broadcast.  The pleaded imputation conveyed is not simply that the collapse of the wall at the quarry caused the 2011 Grantham flood, but that each of the plaintiffs “caused the deaths of 12 people by constructing a massive wall at his quarry that collapsed under the weight of water”.  The finding that imputation (c) was conveyed by the words spoken by Mr Jones rests largely on his specific identification of the Wagners (in derogatory terms) as being the persons responsible for constructing a “massive wall”.  The relevant references in this respect are found at [166] above.  This is to be contrasted with the words spoken by Mr Cater.  Mr Cater at no stage mentions the plaintiffs, nor does he seek to implicate them in the construction of the wall at the quarry that collapsed. 
  4. [188]
    Third, the plaintiffs’ submission that Mr Cater’s use of the words “all the evidence points as you just said to the wall at the quarry that collapsed” shows that Mr Cater is explicitly agreeing with Mr Jones’ previous remarks should be rejected.[125]  The words used by Mr Cater are, in my view, equivocal.  Mr Cater’s reference to “all the evidence” may include Mr Jones’ reference to the DHI report and to Mr Cater’s own analysis of eyewitness accounts, photographs and video evidence.  It is not apparent, however, that Mr Cater’s words convey that he is agreeing with everything previously stated by Mr Jones.  In particular, Mr Cater’s words do not, either expressly or by implication, adopt or acquiesce in Mr Jones’ derogatory references to the Wagners, nor to his factual assertion that it was the Wagners who created the wall.  Mr Jones refers to the creation of a wall around the Grantham sand quarry as “typically Wagners”.  The words spoken by Mr Cater are, in my view, too equivocal to constitute an adoption by him of Mr Jones’ accusation that it was the Wagners who constructed the quarry wall, the collapse of which caused the deaths of 12 people.
  5. [189]
    Fourth, as correctly submitted by the defendants, in order for Mr Cater to be liable in respect of imputation (c) as derived from the words of Mr Jones, a finding must be made that Mr Cater armed Mr Jones with the libel or had requested Mr Jones to publish the libel.[126]  For Mr Cater to be liable, it is not sufficient that he did not distance himself from Mr Jones’ statements inferring that the Wagners were to blame.  Mr Cater by his words does not, in my view, concur or assent to Mr Jones’ words implying that the plaintiffs were to blame.
  6. [190]
    Fifth, the five matters submitted by the plaintiffs as demonstrating that Mr Cater conduced to the publication by 2GB and Mr Jones which conveyed imputation (c) fall well short of establishing this proposition.  In none of the correspondence or statements made by Mr Cater to Mr Jones does Mr Cater seek to blame the Wagners for the construction of the wall at the quarry, let alone the deaths of 12 people.  In the three pieces of correspondence relied on by the plaintiffs, it is only in the letter of 14 October 2014[127] that Mr Cater makes any reference to the Wagners.  In the last paragraph of the first page of this letter he refers to the “Grantham quarry”.  At the third page Mr Cater makes reference to “a crudely constructed levee, three to five metres high” which “now stretched for 380 metres on the western boundary of Wagner’s Quarry”.  The other reference in this letter to the Wagners is in the context of Dr Phillip Jordan’s site inspection of the quarry on 5 April being complicated by the fact that much of the debris had been removed, that “Wagners” had already begun repairing the gap in the wall, and that other alterations had been made to the landscape.  Similarly, nothing said by Mr Cater in the broadcast constituting the Third Matter complained of sought to blame the plaintiffs for constructing the wall and causing the flood disaster.  To the contrary, in the passage from this broadcast relied on by the plaintiffs, when Mr Jones seeks to draw a connection between the Wagners and Sinclair Knight Merz, Mr Cater cautions Mr Jones as follows:

“Alan, we’ve gotta be very careful with this story, how far we go.  There may be cover ups, things that have undoubtedly been covered up – I don’t know by who or why.  My real concern is just to say let’s start by saying what happened on the day and then we’ll see what flows from that.”[128]

  1. [191]
    This statement in the third broadcast is generally consistent with Mr Cater’s statements in the eleventh broadcast:
  • “It’s still a long way to go.”
  • “There needs to be a fresh inquiry and I’m very pleased that a number of people are now looking at this very seriously and I hope that the Premier takes this very seriously and realises that this has to be investigated.”
  • “What we need, Alan, is a very specific inquiry.  There needs to be an inquiry that looks at the events over perhaps ninety minutes in a very short space of that Lockyer Creek between Helidon and Grantham.”
  1. [192]
    I find that Mr Cater:
  1. (a)
    neither expressly nor impliedly agreed with or adopted Mr Jones’ words which conveyed imputation (c);
  2. (b)
    did not conduce to the publication of the words spoken by Mr Jones which conveyed imputation (c).
  1. [193]
    As Mr Cater is only sought to be made liable in relation to imputation (c) in respect of the Eleventh Matter complained of, each plaintiff’s claim against him should be dismissed.[129]

Twelfth Matter

  1. [194]
    The Twelfth Matter was broadcast on radio 2GB on 27 April 2015 commencing at approximately 7.49 am.  Attachment 12 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [195]
    2GB and Mr Jones concede that the Twelfth Matter is of and concerning each of the plaintiffs. 
  3. [196]
    It is in issue whether the imputations were conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    caused the deaths of 12 people by constructing an embankment at his quarry which collapsed under a weight of water, causing the 2011 Grantham flood; and
  2. (b)
    in the alternative to (a), caused the deaths of 12 people when an embankment constructed at his quarry collapsed under a weight of water, causing the 2011 Grantham flood.[130]
  1. [197]
    The Twelfth Matter complained of is a segment from an interview Mr Jones conducted with the then newly elected Queensland Premier, Annastacia Palaszczuk.  The topic of the interview is whether Ms Palaszczuk would be calling a fresh inquiry in relation to Grantham.  In the course of the interview, Mr Jones says the following words:
  • “In Grantham in your state in 2011, 12 people died when the weight of water, allegedly from a quarry owner owned by the Wagners, became a bathtub.  And the weight of the water collapsed the embankment, 12 people had no hope.  Will you be calling a long overdue inquiry so that these poor people who are the survivors of this massive tragedy at Grantham can have their say?”
  • “And Marty Warburton, whom you know, … he told me and I quote what happened on that day was not a normal flood, and the violence and the destruction that the water caused was the result of a man-made construction in a designated water course.”
  • “Marty Warburton raised all this with the flood inquiry, quote: it never got a mention.   He said to me the bullying and intimidation I witnessed and experienced towards those who stood up and asked questions about the event or made comments during the recovery that authorities didn’t agree with, the bullying and the intimidation was disgusting.”
  1. [198]
    Unlike earlier broadcasts in relation to Grantham, Mr Jones, in interviewing the Premier, uses the word “allegedly” when referring to the role of the quarry.  The plaintiffs submit that Mr Jones’ use of the word “allegedly” constitutes a purported disclaimer which is both “contrived and insincere”.[131]  The plaintiffs submit: “It is well accepted that a person cannot escape liability by merely putting the defamatory words after the prefix ‘it is alleged that’ and then asserting that allegation is true.”[132]  In Mirror Newspapers Ltd v Harrison,[133] Mason J in referring to “rumour” cases stated: “The essence of those cases is that the defendant gives his imprimatur to the rumour; by passing it on he gives it credence, implying that it is well founded or that it may be so.”  All that is being alleged in this broadcast, however, is where the “weight of water” allegedly came from.  In the first quote, Mr Jones does not make any reference to a wall at the quarry, but rather to the collapse of “the embankment”.  It is only when he quotes Mr Warburton that reference is made to “a man-made construction in a designated water course”.  The defendants submit that neither meaning is capable of arising: “There is a reference, that is not contradicted elsewhere, that the water allegedly came from the quarry and the subject of it otherwise is concerned with the need for an inquiry.  An allegation of causation is not made out on this broadcast.”[134]  I accept this submission.  Nowhere in the broadcast, unlike other broadcasts, does Mr Jones identify who built the man-made construction.  He refers to the quarry as being owned by the Wagners but makes none of the accusations he made in the Tenth and Eleventh Matters.  As the general thrust of the broadcast is an interview with the Premier seeking the calling of a fresh inquiry, I do not accept that the ordinary reasonable listener would have inferred that it was the Wagners who were responsible either for the collapse of the embankment, or for the man-made construction in a designated watercourse.  Neither imputation would, in my view, have been conveyed to the ordinary reasonable listener.

Fourteenth Matter

  1. [199]
    The Fourteenth Matter was broadcast on radio 2GB on 6 May 2015 commencing at 6.45 am and continuing at 6.49 am.  Attachment 14 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [200]
    In this broadcast Mr Jones informs his listeners that the Queensland Premier, Annastacia Palaszczuk, has announced a Commission of Inquiry into the flooding of the Lockyer Creek between Helidon and Grantham.  Mr Jones refers to this flooding as being “infamously known as the Grantham Affair”.  He identifies the chair of the new inquiry as the “distinguished QC Walter Sofronoff”. 
  3. [201]
    Mr Jones contrasts Ms Palaszczuk’s decision with the previous failures of Mr Newman, Mr Springborg, “and all his mates who would do nothing about the Grantham Floods in the time they were in government”.  Mr Jones then asks rhetorically, “Why?  Who are they covering up for?”
  4. [202]
    Mr Jones then makes reference to the hydraulic engineering report commissioned by The Australian.  He refers to The Australian newspaper as taking “a long time to get to the starting gate, having argued all along that things I was saying were incorrect but then they commissioned their own hydraulic engineering firm, DHI, who argued the original findings of this hydrologist Phillip Jordan were seriously flawed.  Twelve people lost their lives, their bodies have never been found.  They have no closure.”  Mr Jones is mistaken in his reference to the 12 victims’ bodies having never been found. 
  5. [203]
    He states that Ms Palaszczuk “already has them running for cover and I have no doubt for the shredding machines.  I’ll be naming the shredders, but not today.  They can wait.”  Mr Jones then informs his listeners of the terms of reference of the proposed inquiry, including: “Two whether the existence or breach of the Grantham quarry caused or contributed to the flooding and that’s the Wagner quarry.”  Mr Jones emphasises the words “and that’s the Wagner quarry”.
  6. [204]
    Mr Jones then interviews Mr Warburton, putting to Mr Warburton a number of his own statements, which include:
  • “… you told me quote of Grantham I’ll quote you – it never got a mention, the bullying and intimidation I experienced towards those who stood up and asked questions about the event or made comments during the recovery, that authorities didn’t agree with, the bullying and the intimidation was disgusting”.
  • “You said many locals raised the issue regarding Wagner’s dam and its effect at several community meetings after the event but the issue was always dismissed by authorities.”
  1. [205]
    Mr Jones asked Mr Warburton a number of leading questions:
  • “It wasn’t a normal flood was it, Marty?”
  • “And you’re convinced that it was the result of a man-made construction in a designated water course and you’ll be making those points.”
  • “There’s plenty of evidence, isn’t there, Marty, there are helicopter photos, there’s video evidence, there are reports, there are hundreds of photographs, there are accounts that have been given to the coroner, they never counted for anything.”
  1. [206]
    It is in issue whether the Fourteenth Matter, published by 2GB and Mr Jones, is of and concerning the plaintiffs.  For reasons given at [47] to [50] above, I am of the view that the Fourteenth Matter is of and concerning the plaintiffs.  Mr Jones’ reference to Wagner’s quarry, which are words he emphasises, would be understood by the ordinary reasonable listener as a reference to the plaintiffs.  In the course of the broadcast Mr Jones makes numerous references which would readily be understood as references to people, rather than to a corporation or a business.  These include Mr Jones asking the rhetorical question “Who are they covering up for?” and his references to “them running for cover … no doubt for the shredding machines” and to “naming the shredders”.  I accept that these are all references to people.[135]  The ordinary reasonable listener, hearing these words, would think that Mr Jones is identifying the owners of the “Grantham quarry”, namely the plaintiffs.[136]  Mr Jones also makes reference to “Wagner’s dam” in the context of having quoted Mr Warburton about “the bullying and intimidation” which he describes as “disgusting”.
  2. [207]
    It is in issue whether the imputations are conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    caused the deaths of 12 people by constructing a dam wall in a designated water course which collapsed, causing the 2011 Grantham flood;

(aa) in the alternative to (a), caused the deaths of 12 people when a dam wall constructed in a designated water course at his quarry collapsed, causing the 2011 Grantham flood;

  1. (b)
    in concert with others, conspired in a disgraceful cover-up of his culpability for the deaths of 12 people in the 2011 Grantham flood; and
  1. (c)
    bullied and intimidated persons who tried to expose the fact that the collapse of a dam wall at his quarry was the cause of the deaths of 12 people in the Grantham flood disaster.[137]
  1. [208]
    The plaintiffs do not rely on any extrinsic facts such as previous broadcasts to establish that the imputations were conveyed.  The defendants emphasise the importance of the pleaded imputations only being conveyed by their natural and ordinary meaning:

“One critical matter that is worth recalling here, as in the consideration of all the broadcasts, is that they are to be (except in the limited examples where some extrinsic knowledge is pleaded) considered as standalone broadcasts.  Whatever might be thought about what the second defendant had been saying in previous broadcasts, is immaterial.  Each of the meanings relied upon is said to be a natural and ordinary meaning arising from the matter complained of.”[138]

  1. [209]
    As to imputation (a) and its alternative imputation (aa), the defendants submit that there is no suggestion of culpability in this broadcast.  The broadcast specifically refers to the establishment of a Commission of Inquiry expressly tasked with looking into the impact of the man-made features of the quarry, “which could have altered or contributed to the flooding”.  The broadcast, in my view, goes well beyond informing the listener of the Inquiry’s terms of reference.  Mr Jones contextualises the establishment of the Inquiry by referring to the previous government’s failure to do anything about the Grantham floods.  It is in this context that Mr Jones rhetorically asked his listener, “Why?  Who are they covering up for?” 
  2. [210]
    Mr Jones makes reference to 12 people having lost their lives and their bodies having never been found.  Immediately thereafter he refers to Annastacia Palaszczuk (inferentially for having established the new Inquiry) as having “them running for cover and I have no doubt for the shredding machines.  I’ll be naming the shredders, but not today.”  Mr Jones refers to Ms Palaszczuk as having “sought to bring some justice to these people”.  Mr Jones, by his references to “Wagner quarry”, “Wagner’s dam”, “man-made”, and “manmade construction in a designated water course”, identifies the culpability of the plaintiffs.  This is because the ordinary reasonable listener, as submitted by the plaintiffs, is likely to have understood Mr Jones to be saying several things:
  1. (a)
    that there has been a cover-up in relation to the Grantham floods;
  2. (b)
    that this cover-up, and those who are protected by it, will soon be discovered by the new Inquiry, such that unnamed people are “running for cover” and “the shredding machines”; and
  3. (c)
    that the new Inquiry will have a limited focus but includes whether the existence or breach of the Wagner quarry “caused or contributed” to the flooding and how “eyewitness accounts were dealt with”.[139]
  1. [211]
    By Mr Jones’ leading questions to Mr Warburton, the listener is left with the impression that there is plenty of evidence – including hundreds of photographs, video evidence, accounts given to the coroner, and reports – that support Mr Warburton’s belief that the flood was the result “of a man-made construction in a designated water course”.
  2. [212]
    The impression given to the ordinary reasonable listener is that the true cause of the deaths of people at Grantham was a man-made construction at the Wagner quarry, referred to as “Wagner’s dam”, which collapsed.  This is in circumstances where the previous government had failed to do anything about the Grantham Flood event because of a cover-up.  When Mr Jones asks the listener, “Who are they covering up for?” a listener may readily infer that the previous government was covering up for the owners of the quarry, the plaintiffs.  While Mr Jones does not identify who built the man-made construction, an ordinary reasonable listener would infer that it was the Wagners.  Mr Jones does not suggest that the quarry was owned by anyone other than the Wagners. 
  3. [213]
    Imputation (a) is conveyed.
  4. [214]
    As to imputation (b), the defendants submit that there is no suggestion the plaintiffs had anything to hide, or ought to be motivated to participate in a cover-up, let alone that they have in fact participated.[140]  I do not accept this submission.  Mr Jones’ references to people running for cover and shredding machines would be readily understood by an ordinary reasonable listener as a reference to those responsible for the flooding.  The broadcast generally conveys that the real cause of the Grantham Flood event had not been previously investigated because of a cover-up.  What was being covered up was the true cause of the Grantham floods which, as stated by Mr Jones in the broadcast, resulted in 12 people losing their lives.  Mr Jones, by posing the question “Who are they covering up for?”, invites the listener to speculate.  Such speculation in the context of this broadcast inferentially identifies the Wagners as being the subject of the cover-up.
  5. [215]
    Imputation (b) is conveyed. 
  6. [216]
    As to imputation (c), for reasons previously given, this imputation is also conveyed.[141]
  7. [217]
    I determine that the Fourteenth Matter complained of was of and concerning the plaintiffs.  The Fourteenth Matter meant and was understood to mean that each of the first, second, third and fourth plaintiffs:
  1. (a)
    caused the deaths of 12 people by constructing a dam wall in a designated watercourse which collapsed, causing the 2011 Grantham flood;
  2. (b)
    in concert with others, conspired in a disgraceful cover-up of his culpability for the deaths of 12 people in the 2011 Grantham flood; and
  3. (c)
    bullied and intimidated persons who tried to expose the fact that the collapse of a dam wall at his quarry was the cause of the deaths of 12 people in the Grantham flood disaster.
  1. [218]
    2GB and Mr Jones admit that, if conveyed, imputations (b) and (c) are defamatory.  For reasons previously stated, imputation (a) is also defamatory.  I determine that each of the imputations conveyed are defamatory of each of the plaintiffs.

Fifteenth Matter

  1. [219]
    The Fifteenth Matter was broadcast on radio 2GB on 15 May 2015 at approximately 7.43 am.  Attachment 15 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [220]
    As the broadcast is reasonably brief I set it out in full:

“And just one interesting point.  My listeners are full of information.  If you’re standing up, sit down.

As you know, there’s an inquiry into the Grantham floods and it’s progressing outstandingly.  This man, Walter Sofronoff.

Last week was Beef Week at Rockhampton.  Barnaby Joyce was there, Warren Truss, the Deputy Prime Minister.  They were talking about the absence of a really fair dinkum agricultural policy.

I am told by someone who was there that there was discussion about a free trade deal with China.  And I’m told that up stepped one Mr Wagner, walked up to Barnaby Joyce and Warren Truss – two federal ministers.  And I’m told words to this effect were said: be careful, the judge they’ve appointed in this has got it in for us.

This is about Grantham.  Walter Sofronoff.  And then the conversation went something like this: we need to cover each other’s backs in this, you look after us and we’ll look after you.

Do you think they’re not running scared about the Grantham inquiry? You bet they are.  That was Beef Week in Rockhampton.  You’d have think it [indistinct] more than Beef Week with some of that lot.”

  1. [221]
    It is in issue whether the Fifteenth Matter published by 2GB and Mr Jones is of and concerning each of the plaintiffs.  The Fifteenth Matter makes specific reference to Mr Wagner: “up stepped one Mr Wagner”.  I accept that this reference identifies the plaintiffs by name.  Although the reference is to a single “Mr Wagner”, a listener could draw the inference that Mr Jones was referring to all (or any one of) the plaintiffs.[142]
  2. [222]
    It is in issue whether the imputation was conveyed.  The pleaded imputation is that each of the first, second, third and fourth plaintiffs conspired with the Deputy Prime Minister, Warren Truss, and a prominent member of the government, Barnaby Joyce, to cover up his culpability for the deaths of people in the Grantham flood disaster.[143]  The plaintiffs plead that this imputation is conveyed in its natural and ordinary meaning or, alternatively, by reason of extrinsic facts, namely that 12 people were killed in the Grantham flood disaster.  The plaintiffs allege this fact was notorious.
  3. [223]
    The defendants submit that the broadcast is silent as to whether the plaintiffs were culpable for the deaths of people in the Grantham Flood event.[144]  I do not accept this submission.  The broadcast is delivered by Mr Jones in a sensationalist tone.  Mr Jones commences by stating that his listeners are full of information.  He then invites the listeners to sit down if they are standing up.  An ordinary reasonable listener would immediately infer that the information that is to be imparted by Mr Jones is both important and shocking.  After recounting some of the conversation between Mr Wagner, Warren Truss and Barnaby Joyce, Mr Jones states, “This is about Grantham.  Walter Sofronoff”.  After recounting the full conversation Mr Jones then rhetorically asks his listeners, “Do you think they’re not running scared about the Grantham inquiry?  You bet they are.”  An inference that an ordinary reasonable listener would draw is that Mr Wagner has plenty to fear about the Grantham Floods Inquiry concerning, as it does, the deaths of 12 people.  As correctly submitted by the plaintiffs, Mr Jones’ language is loose and insinuating and invites the listener to speculate.  The impression which would be gained by the ordinary reasonable listener is that the plaintiffs are the persons who are running scared and they, together with the two named politicians, are planning to prevent something from becoming known.[145]
  4. [224]
    The defendants further submit that the natural and ordinary meaning of the words do not convey that each of the plaintiffs conspired with the two named politicians.  This is because, critically, Mr Jones does not state who said the words “be careful, the judge they’ve appointed in this has got it in for us”.  According to the defendants, this is important because Mr Jones at no point says that there is any agreement with, or acquiescence to, the proposal that then follows, that each party would need to look after the other.  A listener would not therefore be likely to conclude that the broadcast actually meant that there was a conspiracy.[146]  I do not accept this submission.  While Mr Jones does not identify which person said which words, there is simply no reason why the ordinary reasonable listener would think that Mr Wagner did not, himself, say the words “we need to cover each other’s backs in this, you look after us and we’ll look after you” or acquiesce to that suggestion.  The word “conspired” as used by the plaintiffs in the imputation would not be understood by the ordinary reasonable listener in a strict legal sense.  A common meaning of the word “conspire” is “to agree”.  The imputation is conveyed.
  5. [225]
    2GB and Mr Jones admit that, if conveyed, the imputation is defamatory of each of the plaintiffs.
  6. [226]
    The defendants do not seek to defend this defamatory imputation.  As discussed below in relation to damages, I consider this imputation to be very serious.

Sixteenth Matter

  1. [227]
    The Sixteenth Matter was broadcast on radio 2GB on 22 May 2015 commencing at approximately 7.42 am.  Attachment 16 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [228]
    Only the second plaintiff, John Wagner, complains about this broadcast.  Mr Jones and 2GB admit that the Sixteenth Matter is of and concerning the second plaintiff. 
  3. [229]
    It is in issue whether the following pleaded imputation is conveyed:

“In its natural and ordinary meaning, and alternatively by reason of the matter particularised below, the sixteenth matter meant and was understood to mean that the second plaintiff conspired with the Deputy Prime Minister of Australia, Warren Truss, and a prominent member of the government, Barnaby Joyce, to cover up his culpability for the deaths of people in the Grantham flood disaster.

Particulars of extrinsic facts

12 people were killed in the Grantham flood disaster; this fact was notorious.”[147]

  1. [230]
    The relevant part of this broadcast is similar in content and tone to the Fifteenth Matter.  The primary difference is that Mr Jones makes reference only to the second plaintiff, John Wagner.  For the reasons given in respect of the Fifteenth Matter, I determine that the imputation was conveyed.
  2. [231]
    2GB and Mr Jones admit that, if conveyed, the imputation is defamatory.
  3. [232]
    The defendants do not seek to defend this defamatory imputation.  As I have already observed, this imputation is very serious.

Seventeenth Matter

  1. [233]
    The Seventeenth Matter was broadcast on radio 2GB on 25 May 2015 commencing at approximately 7.40 am.  Attachment 17 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [234]
    2GB and Mr Jones admit that the Seventeenth Matter is of and concerning each of the plaintiffs.
  3. [235]
    It is in issue whether the imputations were conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:

“(a) in concert with the Bligh and Newman Governments and police, criminally conspired over a period of four years in a disgraceful and massive cover-up of the cause of the horrific and terrifying Grantham flood; and

  (b) terrorised and vilified two ordinary people,  Heather Brown and David Pascoe, forcing them to change address and live in fear, because they threatened to expose the truth about his involvement in the horrific flooding of the town of Grantham and the deaths of a number of people, including a baby.

Particulars of extrinsic facts

12 people were killed in the Grantham flood disaster; this fact was notorious.”[148]

  1. [236]
    In determining whether the pleaded imputations are conveyed, the importance of listening to these broadcasts and how they are delivered by Mr Jones cannot be over-emphasised.  In this broadcast in particular, Mr Jones’ delivery is compelling.  He speaks with great confidence and conviction.  The listener is left with the overwhelming impression that the true cause of the Grantham Flood event which resulted in 12 deaths has been the subject of a massive cover-up.
  2. [237]
    Mr Jones commences the broadcast by referring to a 60 Minutes program on the Grantham Flood event.  He recounts some terrible stories arising from the flood, including one of a mother who lost her baby, never to be found.  Mr Jones then states:

“That all began remember on this program, and no-one wanted to believe what we were saying.  We started the verbal proof that this was a massive cover up and the Bligh Government was involved and subsequently the Newman Government.  Anna Bligh must be made to appear at this inquiry, she has to be called.  She has to be made to answer why she allowed herself to be manipulated by police and others to a cover up.  Who for?  Wagner and co?”

  1. [238]
    Later in the broadcast Mr Jones again refers to Grantham as a cover-up and makes the following statements:
  • “This was the same political climate that saw Grantham covered up by the Bligh Government and her mates using the might of the police and the Newman Government in spite of promises did nothing about it.  And that very same special squad that was brought in to Grantham by midnight the night of the disaster, they locked the town down and did exactly what they were told for the next two weeks.  Or make it for the next four years.”
  • “After 60 Minutes last night there’d be plenty of people up there with diarrhoea and vomiting.  They know the truth is closing in on them because many people know the truth.”
  • “Annastacia Palaszczuk said on 60 Minutes all the evidence must be preserved.  So any attempt to destroy the quarry wall will be a criminal offence.”
  • “I spoke to one person yesterday who’s made a submission.  They’ve done homework about mining, about the Toowoomba Council, about Wagner’s, about the dirty deals and about the police.  You can put Grantham in the blender and swirl it around and around and the conclusion is the same, Anna Bligh and the police covered up the Grantham disaster.  Why?  Was this to protect Wagner and others?  They’d already committed the crime much earlier with the Santos and British Gas Environmental Impact Statement.”
  • “But now the truth is closing in on a lot of people.  All the appropriate information is being given to Mr Sofronoff and well may some people be very worried indeed because a crime is a crime.”
  • “I’m going to give a rap to Heather Brown and her husband Dr David Pascoe.  Nobody has taken the massive hit to their lives that these two ordinary people have taken in pursuing the truth.  They’ve been burgled – you’ve heard me talk to Heather Brown on this program – three times they were burgled, terrorised, vilified, helicopters flying over their home, driven out of their home for thirteen months, living at three addresses because security was warning them the mob were coming back to get them.”
  • “Who ran all this operation?  Who was responsible for this terrorising of these two people?  This was never about mining, this was about how much Heather Pascoe knew about Grantham.”
  • “These people may well have had their day.  They’re now about to face an analysis of the truth.”
  1. [239]
    As to imputation (a), the defendants submit that, at most, the Wagners might be potential beneficiaries of the cover-up but not participants in any cover-up.  This submission ignores that Mr Jones impliedly identifies that the cover-up is for “Wagner and co”.  The message conveyed to the ordinary reasonable listener is that there has in fact been a coverup by two governments and that the plaintiffs are somehow involved.[149]
  2. [240]
    I accept the plaintiffs’ submission that it is obvious from the content of the broadcast, and its tone, that Mr Jones is inviting the listener to adopt a suspicious approach.  He does so by repeatedly referring to cover-ups, speaking in the most general terms of criminal behaviours, and posing questions about whether the plaintiffs, “Wagner and co”, are being protected.  He also asserts that there were various people involved in this coverup and invites the listener to conclude that the cover-up was to protect “Wagner and co”.  Necessarily the message means that “Wagner and co” are involved in the coverup.[150]  That the cover-up involved the plaintiffs “criminally” conspiring over a period of four years is conveyed by Mr Jones implying that two successive governments have been involved in the cover-up.
  3. [241]
    Mr Jones makes a number of references to crimes.  He states:
  • “Bligh had already committed the first crime when she signed off on an incomplete environmental impact statement for British Gas and Santos …”
  • “Anna Bligh and the police covered up the Grantham disaster.  Why?  Was this to protect Wagner and others?  They’d already committed the crime much earlier with [Santos Gas] …”
  • “… well may some people be very worried indeed because a crime is a crime.”
  1. [242]
    Mr Jones’ references to the “first crime” would convey to an ordinary reasonable listener that the cover-up of Grantham is the second crime.  The length of the criminal conspiracy being four years is conveyed by the following words:
  • “… they [the special squad] locked the town down [Grantham] and did exactly what they were told for the next two weeks.  Or make it the next four years.”
  1. [243]
    Imputation (a) was conveyed.
  2. [244]
    As to imputation (b), the defendants complain about the complexity of the pleaded meaning:

“The listeners are told that Ms Pascoe was being pursued because of ‘how much she knew about Grantham’ not …, as the meaning requires to be found, ‘because they threatened to expose the truth about [the plaintiffs’] involvement in the horrific flooding of the town of Grantham and the deaths of a number of people, including a baby’.  There is no suggestion that Ms Pascoe was threatening to expose anyone, let alone the plaintiffs, let alone that she had information that she was prepared to release, that would expose the plaintiffs’ involvement in the horrific flood.  There would have been many easier ways to plead this meaning, but the plaintiffs have chose not to, and must now incur the consequence that a poorly pleaded meaning will not be found to arise.”[151]

  1. [245]
    Mr Jones, however, in the broadcast, identifies that Heather Brown and Dr Pascoe have taken “the massive hit to their lives” because they were “pursuing the truth”.  As a matter of inference, the ordinary reasonable listener would infer from the broadcast that the truth they were pursuing was the truth about Grantham.  This is in the context of Mr Jones having alleged that the true cause of the deaths at Grantham has been the subject of a massive cover-up benefitting the Wagners.
  2. [246]
    In this context, when Mr Jones asked the rhetorical questions, “Who ran all this operation?  Who was responsible for this terrorising of these two people?”, the ordinary reasonable listener would readily have drawn the inference that it was the Wagners.
  3. [247]
    Imputation (b) was conveyed. 
  4. [248]
    I determine that the Seventeenth Matter conveyed that each of the first, second, third and fourth plaintiffs:
  1. (a)
    in concert with the Bligh and Newman Governments and police, criminally conspired over a period of four years in a disgraceful and massive cover-up of the cause of the horrific and terrifying Grantham flood; and
  1. (b)
    terrorised and vilified two ordinary people, Heather Brown and David Pascoe, forcing them to change address and live in fear, because they threatened to expose the truth about his involvement in the horrific flooding of the town of Grantham and the deaths of a number of people, including a baby.
  1. [249]
    2GB and Mr Jones admit that, if conveyed, the imputations are defamatory of each of the plaintiffs. 
  2. [250]
    The defendants do not seek to defend these defamatory imputations.  I consider these imputations to be very serious.

Eighteenth Matter

  1. [251]
    The Eighteenth Matter was broadcast on radio 2GB on 26 May 2015 commencing at approximately 7.42 am.  Attachment 18 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [252]
    2GB and Mr Jones admit that the Eighteenth Matter is of and concerning each of the plaintiffs.  The plaintiffs plead that the Eighteenth Matter conveyed five imputations:

“63.  In its natural and ordinary meaning, the eighteenth matter meant and was understood to mean (as separate imputations arising in respect of each plaintiff) that each of the first, second, third and fourth plaintiffs:

  1. (a)
    is a person who knows only two things: self-interest and bullying;
  1. (b)
    for his own selfish and greedy purposes, stole airspace above the Oakley [sic] Army Base, which will destroy the Oakley [sic] Army Base, which trains helicopter pilots, and harm the national defence interest; and
  1. (c)
    is a monumental hypocrite, in that he went to Canberra to talk to his mate Ian Macfarlane to stop the destruction of the Borneo Barracks on the ground that they are important for defence, when he is responsible for destroying the Oakey defence base for his own selfish, greedy purposes.
  1. Further or alternatively, by reason of the matters particularised below, the eighteenth matter meant and was understood to mean that each of the first, second, third and fourth plaintiffs:
  1. (a)
    caused the deaths of a number of people in the Grantham flood disaster when a dam wall at his quarry burst, flooding the town of Grantham; and
  1. (b)
    was frightened that his causing the deaths of 12 people in the Grantham flood disaster would be exposed in the forthcoming inquiry, and in consequence was attempting to cover up the fact.

Particulars of extrinsic facts

  1. (i)
    12 people were killed in the Grantham flood disaster; this fact was notorious;
  1. (ii)
    the second defendant had made frequent and repeated allegations that the cause of the Grantham flood disaster was the collapse of the wall at the plaintiffs’ quarry, and that the plaintiffs had attempted to conceal the fact; and
  1. (iii)
    the second defendant made the allegation to the effect of that described in particular (ii):
  1. (a)
    in the first, second, third, seventh, eighth, ninth, tenth, eleventh, fourteenth, fifteenth, sixteen and seventeen matters;
  1. (b)
    on the Jones Program on 13 October 2014 (commencing at about 7.16 am); and
  1. (c)
    on the ‘Alan Jones Comments of the Day Program’ on radio station 4GR on 16 October 2014 (commencing at 1.51 pm); and
  1. (iv)
    a further inquiry into the Grantham flood disaster had been announced by the Queensland Government; this fact was notorious.”[152]
  1. [253]
    Mr Jones and 2GB admit that the imputation that each of the plaintiffs is “a person who knows only two things: self-interest and bullying” was conveyed.  It is in issue, however, whether the other four imputations were conveyed.
  2. [254]
    As to imputation 63(b), the defendants submit that it does not arise because there is not a connection between the plaintiffs and the allegation of the loss of airspace.[153]  While Mr Jones does not suggest that the plaintiffs were involved in the fast-tracking of the Wagner airport, he does state that the politicians involved knew full well that stealing 40 per cent of airspace from the army would begin the process of eventually shutting down the army base at Oakey, which is there for defence purposes.  What Mr Jones is suggesting to the listener is that the Wagners’ airport was approved, and that approval involved the stealing of airspace from the Oakey air base which would eventually lead to its closure.  Having referred to “the Wagner airport” and “Wagner” Mr Jones then states:
  • “And now they’re saying, oh, we’ve got to go to Canberra and talk to Macfarlane, our mate, to stop the destruction of the Borneo Barracks, they’re important for defence.  After we’ve actually destroyed the Oakey defence base itself for our own selfish, greedy purposes.”
  • “These people, they’re hypocrites of the year.  Antonio, Macfarlane, Wagner – airports, army bases, Grantham.”
  • “These are the Darling Downs leaders now on a little comedy routine to convince the poor old Darling Downs punter that they really care.”
  • “I’ve warned about these people now for years.  The tragedy is by the time we wake up, it may well be too late.  They only know one thing and that is self-interest.  No, sorry, two things: self-interest and bullying.”
  1. [255]
    An ordinary reasonable listener would infer that as the airport was the “Wagner airport”, the Wagners were involved in the stealing of airspace for their own selfish and greedy purposes.  This inference arises as it is the Wagners who own the airport.
  2. [256]
    As to imputation 63(c), the defendants submit that this imputation does not arise because there is no allegation the plaintiffs went to Canberra to see Mr Macfarlane.[154]  I do not accept this submission.  Mr Jones lumps the Wagners in with Antonio and Macfarlane, airports, air bases, and Grantham, for the purposes of identifying all of them as “hypocrites of the year”.  Having named Wagner in this group, Mr Jones then suggests that they are on “a little comedy routine to convince the poor old Darling Downs punter that they really care”.  An ordinary reasonable listener would infer that Mr Wagner was one of those persons going to Canberra to save the Borneo Barracks Defence Base at Cabarlah.
  3. [257]
    As to imputations 64(a) and (b), these are said to be conveyed both by the natural and ordinary meaning of the words of the broadcast and the pleaded extrinsic facts.  The relevant words of the broadcast are:

“They’re running for cover around Toowoomba and Grantham at 100 miles an hour over this Grantham inquiry.  And after the 60 Minutes show and the things we’ve been saying for years and well they may be.  There’s one thing though that they don’t lack and that’s gall – they’ve got as much hide as Jessie the elephant.”

  1. [258]
    In my view these words, even with the extrinsic facts, do not convey the pleaded imputations.  There is no mention of the plaintiffs in relation to Grantham and, save for the reference to the 60 Minutes program, no reference to Grantham either.  The words spoken, even taken with the extrinsic facts, are too general to convey the pleaded imputations.
  2. [259]
    2GB and Mr Jones admit that, if conveyed, imputations 63(b) and 63(c) are defamatory of each of the plaintiffs.  The defendants deny that imputation 63(a) is defamatory because to “know” is different to “being” or to “practising”.  Simply knowing that you are selfinterested and bullying is not of itself defamatory.  The defendants submit that the plaintiffs, having decided here to plead the words used by Mr Jones, have elected to express what they say is the final distillation of the sting in what was said.[155]  I do not accept this submission.  The words used by Mr Jones that the plaintiffs know only two things, self-interest and bullying, does not communicate to the ordinary reasonable listener what the plaintiffs knew.  It is a pejorative statement which the listener would understand as reflecting poorly on each of the plaintiffs.  It is a statement as to how the plaintiffs conduct themselves, rather than what they know.  Imputation 63(a) is defamatory.
  3. [260]
    I determine that the Eighteenth Matter was of and concerning each of the plaintiffs.  It conveyed imputation 63(a), (b) and (c) in respect of each of the plaintiffs.  The imputations were defamatory of each of the plaintiffs.

Nineteenth Matter

  1. [261]
    The Nineteenth Matter consists of words spoken by Mr Jones in a television program cohosted by him on Sky News.  The program went to air on 2 June 2015, commencing at approximately 8.50 pm.  Attachment 19 to these Reasons is a transcript of the words spoken by Mr Jones.  The relevant words spoken by Mr Jones are as follows:

“But the big thing that she’s done to date is the whole question of Grantham; the inquiry into the floods, and the feeling by many that the quarry dam wall broke.  Well quite extraordinarily I had a call this week from someone who was on the Lockyer Council back in 1989 – I’ve got to be careful in terms of what I say – but he was telling me that if his memory served him correctly Wagner’s were never meant to have any overburden left on the site, let alone use it as a wall.  In other words what you didn’t want had to be carted away.  And this is of course the wall that broke, and the tsunami that followed.  And my caller said that either of two things had occurred; that Wagners deliberately ignored that ruling that they were never meant to leave any overburden on the site, or they had it specially altered or changed with some of their mates in Government.”

  1. [262]
    2GB and Mr Jones admit that the broadcast is of and concerning each of the plaintiffs.  Whether the imputation was conveyed is in issue.  The pleaded imputation is that each of the first, second, third and fourth plaintiffs built a wall at his quarry by illegally leaving overburden on the site, which broke, causing a tsunami that caused the death of people in the Grantham Flood event.  The plaintiffs plead that this imputation arises from the natural and ordinary meaning of the words used by Mr Jones.[156]  The plaintiffs submit that while Mr Jones does not make direct reference to the deaths of people, he does refer to “the whole question of Grantham”.  That the Grantham Flood event resulted in loss of human life is, according to the plaintiffs, a notorious fact and one which the ordinary reasonable listener is taken to have known.[157]  The ordinary reasonable listener would have understood Mr Jones to be saying as a matter of fact that Wagners had “used” overburden as a wall, and that this wall broke, resulting in a tsunami.  Having identified the Wagners as building the wall, Mr Jones then proceeds to give two explanations as to how overburden was used for this purpose, either: (a) the Wagners deliberately ignored the ruling that they were not meant to leave any overburden on the site; or (b) they had it specially altered or changed with some of their mates in government.  Either explanation conveys to the ordinary reasonable listener that the Wagners had done something wrong.[158]  The imputation was conveyed.
  2. [263]
    2GB and Mr Jones admit that, if conveyed, the imputation is defamatory of each of the plaintiffs.
  3. [264]
    I determine that the Nineteenth Matter was of and concerning each of the plaintiffs.  The Nineteenth Matter conveyed the imputation that each of the first, second, third and fourth plaintiffs built a wall at his quarry by illegally leaving overburden on the site, which broke, causing a tsunami that caused the death of people in the Grantham flood disaster.  The imputation is defamatory of each of the plaintiffs.

Twentieth Matter

  1. [265]
    The Twentieth Matter was broadcast on radio 2GB on 4 June 2015 commencing at approximately 8.51 am.  Attachment 20 to these Reasons is a transcript of the words spoken by Mr Jones.  This was a brief broadcast in which the following words were spoken:

“… I made this point on television the other night but with this Grantham inquiry in Queensland being all the talk in that part of the world.

I was talking to someone who was on the Lockyer Council back in 1989.  And he told me that if memory served him correctly, Wagners were never meant to have any over-burden left on the site – let alone used as a wall.  This, of course, is the wall that the locals argued broke and the tsunami followed and people were dead.

And my informant told me that either of two things have occurred: Wagners deliberately ignored the ruling that they were never meant to leave any overburden on the site, or some of the mates changed the rules.  Either way, it starts to explain why people are running for cover.  And why in fact there may have been a cover up.”

  1. [266]
    2GB and Mr Jones admit that the broadcast was of and concerning the plaintiffs. 
  2. [267]
    It is in issue whether the imputations were conveyed.  The pleaded imputations are that each of the plaintiffs:
  1. (a)
    was running for cover because his liability for the deaths of people in the Grantham flood disaster, after the wall at his quarry broke causing a tsunami, was likely to be exposed by the Grantham Floods Inquiry; and
  2. (b)
    was trying to cover up the fact that he had either built an illegal wall at his quarry, which burst and caused a tsunami which killed people in the Grantham flood disaster, or had his mates change the rules, which allowed the wall to be built.[159]
  1. [268]
    The defendants submit that imputation (a) does not arise because there is no sufficient connection between the allegations as to the construction of the wall, the breaking of the wall, and the deaths of people in Grantham: “The relevant connection so as to cause a listener to understand that there was a reference to actual liability for the deaths, is just not there.”[160]  Similarly, the defendants submit that imputation (b) does not arise because the allegation as to liability for deaths is made by locals, and not adopted by Mr Jones.  The words used by Mr Jones in this broadcast are similar to those used in the Nineteenth Matter.  There is, in my view, sufficient connection between the allegations as to the construction of the wall, the breaking of the wall, the deaths of people in Grantham and the plaintiffs’ culpability.  While Mr Jones does not identify the people who are running for cover, or why there has in fact been a cover-up, the impression given to the ordinary reasonable listener is that it is the Wagners.  The further inference to be drawn is that the Wagners are running for cover because of their culpability in building a wall which burst, resulting in a tsunami and people’s deaths.  Imputation (a) is conveyed.
  2. [269]
    As to imputation (b), although Mr Jones suggests there “may have been a cover up”, such a suggestion does invite speculation which extends beyond the mere possibility of a cover-up.  As submitted by the plaintiffs, it suggests that a cover-up has in fact occurred.[161]  The cover-up relates to the Wagners because they are the persons subject to the allegation by the locals that it was their wall which broke, causing the tsunami resulting in deaths.  Imputation (b) is conveyed.
  3. [270]
    2GB and Mr Jones admit that, if conveyed, the imputations are defamatory of each of the plaintiffs.
  4. [271]
    I determine that the Twentieth Matter conveyed imputations that each of the first, second, third and fourth plaintiffs:
  1. (a)
    was running for cover because his liability for the deaths of people in the Grantham flood disaster, after the wall at his quarry broke causing a tsunami, was likely to be exposed by the Grantham Floods Inquiry; and
  2. (b)
    was trying to cover up the fact that he had either built an illegal wall at his quarry, which burst and caused a tsunami which killed people in the Grantham flood disaster, or had his mates change the rules, which allowed the wall to be built. 
  1. [272]
    Each of these imputations is defamatory of the plaintiffs.

Twenty-First Matter

  1. [273]
    The Twenty-First Matter was broadcast on radio 2GB on 16 June 2015 commencing at about 8.16 am.  Attachment 21 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [274]
    2GB and Mr Jones admit that the Twenty-First Matter is only of and concerning the second plaintiff, John Wagner, who is specifically named by Mr Jones in this broadcast.  John Wagner is described as “of Wagner infamy in Toowoomba”.  This would be understood by the ordinary reasonable listener to be a reference to the Wagner family.  Mr Jones then makes the following statement:

“So how many sweetheart deals are this mob worried about that will be unearthed by the Grantham Inquiry?  Mr Sofronoff will be examining everything.  Might it extend to the Wagner Airport, and how they were given the airspace over Oakey for nothing – national air space?”

  1. [275]
    I accept the plaintiffs’ submissions that these words would be understood to be a reference to the plaintiffs.[162]  Further, after using the word “mob” Mr Jones refers to “how they were given the airspace over Oakey for nothing”.  By the use of the word “they”, the ordinary reasonable listener would understand that Mr Jones was referring to the Wagners in general, rather than limiting his comments to John Wagner. 
  2. [276]
    I find that the Twenty-First Matter is of and concerning each of the plaintiffs.
  3. [277]
    Whether the Twenty-First Matter conveyed the imputations is in issue.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    conspired with Barnaby Joyce and Warren Truss, the National Party leader, to cover up his culpability for the deaths of people in the Grantham flood disaster;
  2. (b)
    conspired with Warren Truss, the National Party leader, Ian Macfarlane, the Energy Minister, and a prominent member of the government, Barnaby Joyce, to cooperate in protecting each other from the exposure of their misappropriations of federal money and illegal deals; and
  3. (c)
    illegally obtained a national asset, the airspace over the Oakey military base, for use at his private airport.
  1. [278]
    The plaintiffs rely on the following extrinsic facts:
  1. (i)
    12 people were killed in the Grantham flood disaster; and
  2. (ii)
    a further inquiry into the Grantham flood disaster had been announced by the Queensland Government.[163]
  1. [279]
    As to imputation (a), this is conveyed by the first part of the broadcast, which effectively repeats the words of the Fifteenth and Sixteenth Matters complained of.  For the same reasons given in relation to those matters, imputation (a) is conveyed.
  2. [280]
    As to imputation (b), after reminding his listeners of the Beef Week conversation, Mr Jones poses the question, “… how many sweetheart deals are this mob worried about that will be unearthed by the Grantham Inquiry?”  While he does not identify who “this mob” is or what the “sweetheart deals” are, the impression created is that “this mob” includes the infamous Wagner family of Toowoomba.  I accept the plaintiffs’ submission that a “sweetheart deal” is a slang phrase, but it connotes an arrangement that is mutually profitable and either unethical or illegal;[164] the term at least connotes an abnormally favourable contractual arrangement.  The context in which Mr Jones refers to sweetheart deals would suggest that these deals are illegal.  Mr Jones refers to people “running scared” or being worried that such deals would be unearthed by the Grantham Floods Inquiry.  Mr Jones suggests that the Inquiry might be extended “to the Wagner Airport and how they were given the air space over Oakey for nothing – national air space?”  He then informs the listener:

“I’m telling you they’re all in this, and there’s Federal money.  And who is picking over the Federal money to look after themselves?

There was a conference in Canberra yesterday, big money being talked, big gifts, big money to hand out.  Who’s going to get it?  As was said at Beef Week we need to cover each other’s backs, you look after us and we’ll look after you.  Well I for one will be watching closely where this Federal Government money goes.  Does Mr Wagner have his hand out again?  Mr Truss yesterday in Canberra was talking about planned beef roads and dams; who’s going to build them?  Where’s the money going to go?  Is that what was meant by we need to cover each other’s backs, you look after us and we’ll look after you?  Well I’ve got news for all of them; whether in Canberra or not these sweetheart deals with Wagner or anybody else will be closely examined in the light of the Grantham Inquiry and they will be revealed.  And if the boys are in on the deals then the deals and the boys will be made public.”

  1. [281]
    Again Mr Jones invites the listener to take a suspicious approach.  The Beef Week conversation is repeated by Mr Jones to convey that these sweetheart deals which will be revealed are underhanded deals.  The suspicion being created by Mr Jones in the mind of the ordinary reasonable listener is that federal government money is not going where it should be.[165]  Mr Jones goes further, however, by asking the listener whether Mr Wagner has his hand out again. 
  2. [282]
    Imputation (b) is conveyed. 
  3. [283]
    As to imputation (c), this is conveyed by Mr Jones’ reference to the possibility of the Grantham Floods Inquiry extending “to the Wagner airport and how they were given airspace over Oakey for nothing – national airspace”.  This is one of the sweetheart deals to which Mr Jones has already referred.  The fact that the Wagners obtained a national asset for no consideration would suggest to the ordinary reasonable listener that something underhanded or illegal has occurred.  Imputation (c) was conveyed.
  4. [284]
    I determine that the Twenty-First Matter is of and concerning each of the plaintiffs.  The Twenty-First Matter conveyed that each of the first, second, third and fourth plaintiffs:
  1. (a)
    conspired with Barnaby Joyce and Warren Truss, the National Party leader, to cover up his culpability for the deaths of people in the Grantham flood disaster;
  2. (b)
    conspired with Warren Truss, the National Party leader, Ian Macfarlane, the Energy Minister, and a prominent member of the government, Barnaby Joyce, to cooperate in protecting each other from exposure of their misappropriations of federal money and illegal deals; and
  3. (c)
    illegally obtained a national asset, the airspace over Oakey Military Base, for use at his private airport. 
  1. [285]
    2GB and Mr Jones admit that if the imputations are conveyed, they are defamatory.

Twenty-Second Matter

  1. [286]
    The Twenty-Second Matter was broadcast on radio 2GB on 22 June 2015 at approximately 7.55 am.  Attachment 22 to these Reasons is a transcript of the words spoken by Mr Jones. 
  2. [287]
    It is in issue whether the Twenty-Second Matter is of and concerning each of the plaintiffs.  The Twenty-Second Matter complained of comprises words spoken by Mr Jones in a segment hosted by him during which he interviewed the then newly elected Queensland Deputy Premier, Jackie Trad.  The general topic of the interview was whether the Queensland Government would pay for victims to have their own legal representation at the Grantham Floods Inquiry.  In the course of the broadcast Mr Jones makes the following statements:
  • “Just on the Grantham inquiry, I won’t go into detail of the unspeakable cover ups that have occurred in relation to the tragedies of 2011 …”
  • “All withheld evidence.  I mean you’ve started with Golder Associates undertaking this geotechnical work on the Wagner quarry.  Interesting the geotechnical investigation has the full cooperation of Boral to whom Wagner sold the quarry in a hurry after the flood, so it will be interesting. …”
  1. [288]
    The plaintiffs submit that the ordinary reasonable listener, hearing these references to “cover ups” and to selling the quarry “in a hurry”, could not avoid drawing the inference that Mr Jones was pointing the finger at people (the Wagner plaintiffs) and not a thing (the quarry).[166]  I accept that the ordinary reasonable listener, by Mr Jones’ use of the words “the Wagner quarry” and “Wagner”, would understand the broadcast to be of and concerning each of the plaintiffs.
  2. [289]
    It is in issue whether the imputation was conveyed.  The pleaded imputation is:

“By reason of the facts and matters particularised below, the Twenty-Second Matter meant and was understood to mean (as separate imputations arising in respect of each plaintiff) that each of the first, second, third and fourth plaintiffs contributed to an unspeakable cover-up in relation to the Grantham tragedy of 2011 by failing to co-operate with geotechnical work at his quarry and withholding relevant engineering evidence.

Particulars of extrinsic facts

  1. (i)
    The town of Grantham experienced a flood disaster which resulted in the deaths of many people; this fact was notorious;
  1. (ii)
    the second defendant had made frequent and repeated allegations that the plaintiffs:
  1. (a)
    were responsible for the Grantham flood disaster and the deaths of many people as a result of the disaster; and
  1. (b)
    had attempted to cover up their responsibility for the Grantham flood disaster and the deaths of many people as a result of the disaster; and
  1. (iii)
    the second defendant made the allegation to the effect of that described in particular (ii)(A):
  1. (a)
    in the Third, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Fourteenth and Nineteenth Matters;
  1. (b)
    on the Jones Program on 13 October 2014 (commencing at about 7.16 am); and
  1. (c)
    on the ‘Alan Jones Comments of the Day Program’ on radio station 4GR on 16 October 2014 (commencing at 1.51 pm);
  1. (iv)
    The second defendant made the allegation to the effect of that described in particular (ii)(B):
  1. (a)
    in the First, Second, Third, Seventh, Eighth, Ninth, Tenth, Eleventh, Fourteenth, Fifteenth, Sixteen and Seventeenth, Twentieth and Twenty-First Matters;
  1. (b)
    on the Jones Program on 13 October 2014 (commencing at about 7.16 am); and
  1. (c)
    on the ‘Alan Jones Comments of the Day Program’ on radio station 4GR on 16 October 2014 (commencing at 1.51 pm); and
  1. (v)
    a further inquiry into the Grantham flood disaster had been announced by the Queensland Government; this fact was notorious.”[167]
  1. [290]
    The plaintiffs rely on Mr Jones’ assertion that evidence has in fact been withheld in the context of “unspeakable cover ups”:

“Mr Jones identifies that the new quarry owners, Boral, [who] had purchased the quarry from ‘Wagner’ after the flood are cooperating with geotechnical investigations.  From this, there is an implication, and one which the listener would freely have drawn, that Wagner did not cooperate with the investigation, as Boral have.  This gives yet further content to the cover-up and one conclusion that might be reached is that Wagner contributed to the cover-up by their failure to cooperate.  That is a conclusion that the ordinary reasonable listener would reasonably have reached, particularly as the listener has been invited to adopt a suspicious approach.”[168]

  1. [291]
    The difficulty I have with the pleaded imputation being conveyed is that at the beginning of the broadcast Mr Jones specifically states that he will not go into the details of the “unspeakable cover ups” that have occurred in relation to the tragedies of 2011.  Further, Mr Jones’ reference to “All withheld evidence” is in response to the Deputy Premier’s statement that “the Premier moved swiftly to make sure that there was an opportunity for them to revisit the incidences and to look at fresh evidence, look at fresh engineering evidence”.  The Deputy Premier makes no reference to the Wagners in this context.  An ordinary reasonable listener would not understand the reference to the “Wagner quarry” and Boral’s cooperation with the geotechnical investigation as meaning that the Wagners “contributed to an unspeakable cover up in relation to the Grantham tragedy of 2011 by failing to co-operate with geotechnical work at his quarry and withholding relevant engineering evidence”.  Mr Jones’ reference to evidence being withheld cannot, in the context of the broadcast, be readily linked to Boral fully cooperating with the geotechnical investigation in circumstances where the Wagners had sold the quarry to Boral “in a hurry after the flood”.
  2. [292]
    I accept the defendants’ submission that knowledge of extrinsic facts cannot be used to enable a listener to assume that every reference to the plaintiffs in Grantham is a reference to, in this case, an unspeakable cover-up.[169]  While other broadcasts may have conveyed such a meaning, this broadcast does not.  The imputation is not conveyed.
  3. [293]
    I determine that the Twenty-Second Matter complained of is of and concerning each of the plaintiffs.  The Twenty-Second Matter did not, however, convey the imputation that each of the plaintiffs contributed to an unspeakable cover-up in relation to the Grantham tragedy of 2011 by failing to cooperate with geotechnical work at his quarry and withholding relevant engineering evidence.

Twenty-Third Matter

  1. [294]
    The Twenty-Third Matter was broadcast on radio 2GB on 20 July 2015 commencing at approximately 6.46 am.  Attachment 23 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [295]
    There is no issue that the Twenty-Third Matter is of and concerning each of the plaintiffs.
  3. [296]
    It is in issue whether the imputations were conveyed.  The four pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    behaved disgracefully by building an airport in Toowoomba without seeking proper legal approvals and then taking a national asset, the airspace over Oakey, without making any payment for it;
  2. (b)
    in breach of a condition on his right to mine his quarry at Grantham, built a massive wall from stockpiled overburden that collapsed, causing the Grantham flood that killed 12 people;
  3. (c)
    told a disgraceful lie by stating that an embankment at his quarry that collapsed, causing the deaths of 12 people in the 2011 Grantham flood, was part of the natural landscape, when he well knew that he had built it from stockpiled overburden in breach of a condition of his right to mine the quarry; and
  4. (d)
    sold his quarry to Boral, in an effort to cover up his culpability for killing 12 people in the Grantham flood disaster.[170]
  1. [297]
    As to imputation (a), after opening the broadcast with the words “All hell will break loose in Queensland today”, Mr Jones refers to the Toowoomba-based company, Wagners, as “the darlings of the Coalition in Queensland and in Canberra”.  He then refers to the Wagners in the following derogatory terms: “The mob who built the airport in Toowoomba, remember, without seeking proper approvals.”  Mr Jones then asserts that the Wagners were “gifted Oakey air space.  Gifted.  A national asset handed to a private company for nothing.”  Each time Mr Jones uses the word “gifted” he gives it a particular vocal emphasis.  The defendants submit that imputation (a) does not arise for two reasons.  First, the inclusion of the adjective “disgracefully” is an unnecessary addition to the second defendant’s narrative; and secondly, because the plaintiffs are not accused of taking the airspace over Oakey, rather it was gifted to them.[171]  While Mr Jones does not use the word “disgracefully”, the meaning is, in my view, conveyed as a matter of inference from the words actually used by Mr Jones.  The inference is that the Wagners were gifted the Oakey airspace for nothing and could build an airport without seeking proper approvals, simply because they had political patronage.  This type of behaviour by “the mob who built the airport” would be understood by an ordinary reasonable listener as disgraceful behaviour.  As to the meaning “taking a national asset”, this also arises as a matter of inference in circumstances where Mr Jones refers to the Oakey airspace as being gifted for nothing.  This is in the context that it is the Wagners who built the airport.  Imputation (a) is conveyed.
  2. [298]
    As to imputations (b), (c) and (d), the plaintiffs submit that they are conveyed by the following three passages:
  • “Well, they had the rights to mine the quarry at Grantham.  But one of the conditions was pretty simple: quote condition four; over-burden is not permitted to be stockpiled so as to form a levee bank.  It’s there in writing in front of me.  Well, the argument will be that this over-burden, this rubbish, not wanted, was stockpiled, creating a massive wall alongside the quarry.”
  • “Wagners have said it was part of the natural landscape. … The weight of water collapsed the embankment and 12 people had no hope.  Of course, Wagners couldn’t wait to sell the quarry in the same years the floods to Boral.  Boral haven’t operated the quarry since.”
  • “Annastacia Palaszczuk has called for an inquiry, which begins today to end the cover up.  How did these people die?  This will be horrible stuff.”
  1. [299]
    The plaintiffs submit that even though Mr Jones describes the assertion that overburden created a wall alongside the quarry as an “argument”, the clear impression he creates is that the Wagners have in fact created a wall alongside the quarry.  Mr Jones achieves this by asserting, in a particular tone, that “Wagners have said it was part of the natural landscape”.  The tone used by Mr Jones, according to the plaintiffs, is important.  It is derisive, sneering and sarcastic.[172]  In listening to the broadcast it becomes apparent that Mr Jones conveys to the listener that what will be argued is true, and that what the Wagners say is false.  The use of the word “argument”, and the fact that Mr Jones does not expressly use the word “lie”, does not alter the pleaded meanings which are conveyed to the ordinary reasonable listener.
  2. [300]
    The defendants submit that imputation (d) does not arise because no cover-up is alleged, and no listener would conclude that the sale of the quarry would be designed to give effect to a cover-up, particularly when the purchaser, Boral, has not operated the quarry since.[173]  This submission does not, however, give sufficient weight to the tone used by Mr Jones in the broadcast.  Mr Jones asserts in a pejorative tone that, “Of course, Wagners couldn’t wait to sell the quarry in the same years the floods”.  Additionally, by Mr Jones using the words “of course”, the ordinary reasonable listener would infer that the reason the Wagners could not wait to sell the quarry was because “the weight of water collapsed the embankment and 12 people had no hope”. 
  3. [301]
    Imputations (b), (c) and (d) are conveyed.
  4. [302]
    There is no issue that, if conveyed, each of the imputations are defamatory.
  5. [303]
    I therefore determine that the Twenty-Third Matter was of and concerning each of the plaintiffs.  It conveyed imputations that each of the plaintiffs:
  1. (a)
    behaved disgracefully by building an airport in Toowoomba without seeking proper legal approvals and then taking a national asset, the airspace over Oakey, without making any payment for it;
  2. (b)
    in breach of a condition on his right to mine his quarry at Grantham, built a massive wall from stockpiled overburden that collapsed, causing the Grantham flood that killed 12 people;
  3. (c)
    told a disgraceful lie by stating that an embankment at his quarry that collapsed, causing the deaths of 12 people in the 2011 Grantham flood, was part of the natural landscape, when he well knew that he had built it from stockpiled overburden in breach of a condition of his right to mine the quarry; and
  4. (d)
    sold his quarry to Boral, in an effort to cover up his culpability for killing 12 people in the Grantham flood disaster.

Twenty-Fourth Matter

  1. [304]
    The Twenty-Fourth Matter was broadcast on radio 2GB on 21 July 2015 commencing at approximately 7.14 am and continuing at 7.18 am.  The broadcast follows the first day of hearings of the Grantham Floods Inquiry.  It consists of introductory remarks by Mr Jones and an interview with Mr Cater.  Although Mr Cater participates in the broadcast, the plaintiffs’ claim is confined to 2GB and Mr Jones.  The plaintiffs do not press their application for leave to amend to sue Mr Cater in respect of the TwentyFourth Matter.  The plaintiffs have therefore not been granted leave to amend paragraphs 81 and 83 of the second further amended statement of claim.  The plaintiffs were directed to file a further amended statement of claim, removing the underlined amendments to paragraphs 81 and 83.
  2. [305]
    There is no issue that the Twenty-Fourth Matter is of and concerning each of the plaintiffs.
  3. [306]
    It is in issue whether the imputations were conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    infamously caused the deaths of 12 people by constructing an embankment at his quarry which burst, causing a wall of water to surge through Grantham;

(aa) in the alternative to (a), infamously caused the deaths of 12 people when an embankment constructed at his quarry burst, causing a wall of water to surge through Grantham;

  1. (b)
    sat at the opening day of the Sofronoff inquiry into the Grantham flood holding his breath, because he feared that the inquiry would discover the cover-up that resulted in an earlier commission of inquiry wrongfully finding that his quarry did not contribute to the disaster; and
  1. (c)
    sat at the opening day of the Sofronoff inquiry into the Grantham flood holding his breath, because he feared that his culpability for the deaths of 12 people in the flood would finally be uncovered.[174]
  1. [307]
    Mr Jones commences the broadcast by informing the listener that it was “a very traumatic day for south-east Queensland yesterday … we saw the dramatic opening of the public hearings of the commission of inquiry, headed by former Queensland Solicitor-General and eminent lawyer, Walter Sofronoff QC”.  Mr Jones states:

“The first five days of hearings started yesterday, giving residents and eyewitnesses the chance to speak for the first time, about the day a wall of water surged through their town, taking the lives of 12 people.  To this point, unexplained.  I call it a cover up. 

The flood tore homes from their foundations without warning.  Locals believes the excess rainfall over the previous week had formed a man-made embankment in a quarry on a creek bed downstream from the town of Helidon, before bursting – the wall bursting – and surging through Grantham.”

  1. [308]
    Mr Jones outlines the key terms of reference of the Inquiry to the listener:

“The key terms of reference at the inquiry centre on the impact made by the man-made and natural features of the landscape.  How the Grantham quarry, the infamous Wagner quarry, may have contributed to the flooding.  Whether it had a material impact on the damage.  And its implication for the evacuation of the town.”

  1. [309]
    Mr Jones then outlines the evidence of the first witness called at the Inquiry, Lisa Spierling.
  2. [310]
    After criticising the Queensland Floods Inquiry, Mr Jones informs the listener of a statement made at the Grantham Floods Inquiry by Mr Holt QC, who was representing some of the victims:

“Central to that he said was the finding that the sand quarry owned by the businessman Denis Wagner and his family, whom I’m sure yesterday, sat at the inquiry holding their breath that the flood commission of inquiry in 2012 found that the quarry didn’t contribute to the disaster.  The lawyer Saul Holt said his clients did not accept that finding, given the quarry wall size and location.”

  1. [311]
    Mr Jones returns to Mr Holt’s statement while interviewing Mr Cater:

“And he said yesterday, he told the Commission, I quote his words and I’d just like you to comment on this, he told Commissioner Sofronoff quote: the suggestion that the quarry wall, the Wagner quarry, didn’t have a substantial impact on the behaviour of the flood waters is something that at least on its face may not pass the sanity test.”

  1. [312]
    As to imputation (a), the plaintiffs submit that the ordinary reasonable listener would have understood that Mr Jones’ reference to the “infamous Wagner quarry” meant that the quarry was infamous for something shocking.[175]  According to the plaintiffs,

“… the tone of the broadcast, and its content, would have been understood by the ordinary reasonable listener to mean that the plaintiffs caused the deaths of 12 people when an embankment at the quarry burst, causing a wall of water to surge through Grantham.  This cause is the subject of the cover-up Mr Jones refers to.  This cause is why the findings of the first commission of inquiry were ‘plainly ridiculous’, and why the ‘original inquiry got it wrong’.  It is also the reason why the new inquiry will give the people of Grantham ‘justice’.”[176] 

In essence, the plaintiffs’ submission is that although the broadcast is dressed up as a report of the first day of hearing, the broadcast creates the impression that the outcome of the inquiry is a foregone conclusion.  As submitted by Senior Counsel for the plaintiffs, “Mr Jones is judge, jury and executioner … in this broadcast”.[177]

  1. [313]
    Having listened to the broadcast, I am unable to accept the plaintiffs’ submissions.  An ordinary reasonable listener would understand the broadcast and the interview with Mr Cater as primarily concerned with recounting of the first day of the Grantham Floods Inquiry.  While Mr Jones refers to the “infamous Wagner quarry”, nowhere does he suggest in this broadcast that the embankment was constructed by the Wagners.  To the contrary, when he refers to the belief of locals, Mr Jones states, “…the excess rainfall over the previous week had formed a man-made embankment in a quarry on a creek bed downstream from the town of Helidon, before bursting – the wall bursting – and surging through Grantham”.  The statement is contradictory in that it refers to excess rainfall forming a “man-made” embankment.  Nor would an ordinary reasonable listener understand the pleaded imputation to arise from Mr Jones’ stating of the terms of reference of the Grantham Floods Inquiry.  Neither of these passages, in my view, convey the pleaded meaning.   Nor does the recounting of Mr Holt’s statement either expressly or by implication suggest that the Wagners constructed the embankment at the quarry.  The first of Mr Holt’s statements recounted by Mr Jones identifies the issue as to whether the quarry contributed to the disaster.  The second reference is somewhat equivocal;  Mr Holt is quoted as saying, “…the suggestion that the quarry wall, the Wagner quarry, didn’t have a substantial impact on the behaviour of the floodwaters is something that at least on its face may not pass the sanity test.”  It is not clear whether Mr Jones in quoting Mr Holt is making reference to the quarry itself or the quarry wall.  Irrespective of this lack of clarity, there is no statement by Mr Jones in this broadcast that the Wagners constructed the embankment. 
  2. [314]
    I am also of the view that the alternative imputation is not conveyed.  A reference by Mr Jones to “the infamous Wagner quarry” does not convey that the Wagners “infamously” caused the deaths of 12 people.  Mr Jones’ reference to “the infamous Wagner quarry” is in the context of him stating the Inquiry’s terms of reference, namely, “how the Grantham quarry … may have contributed to the flooding.  Whether it had a material impact on the damage.”  These statements do not seek to attribute responsibility for the deaths of 12 people to the plaintiffs.  This is to be contrasted with previous broadcasts where Mr Jones makes specific reference to the plaintiffs building the wall at the quarry “up, and up, and up”. 
  3. [315]
    As to imputations (b) and (c), the plaintiffs primarily rely on Mr Jones’ references to Denis Wagner and his family “holding their breath”.  The plaintiffs submit that the only reason why Denis Wagner and his family would be holding their breath is because the Queensland Floods Inquiry in 2012, which found that the quarry did not contribute to the disaster, was wrong.  According to the plaintiffs, the conclusion which the ordinary reasonable listener would have reached is that the plaintiffs were afraid that the cover-up would be exposed by the new Inquiry and a finding made that it was their quarry wall, and therefore them, which was responsible.  This conclusion, as submitted by the plaintiffs, is an obvious one, not least because Mr Cater described the findings of the Queensland Floods Inquiry as “wrong” and “plainly ridiculous”. 
  4. [316]
    For imputation (b) and (c) to be conveyed the ordinary reasonable listener would, in my view, be required to infer too much from Mr Jones’ reference to Denis Wagner and his family holding their breath.  As the broadcast makes no allegation about liability or culpability for the deaths of people in Grantham, the ordinary reasonable listener would not appreciate why Denis Wagner and his family would be holding their breath.  The primary thrust of the broadcast is Mr Jones and Mr Cater recounting and commenting on the first day of the Grantham Floods Inquiry.  The listener is informed by Mr Jones that the Commissioner, Mr Sofronoff QC, will hear submissions and provide written recommendations to the Queensland Premier by 31 August 2015.  One of the matters to be investigated is how the Grantham quarry may have contributed to the flooding.  An ordinary reasonable listener may have understood that Denis Wagner and his family would be holding their breath because the outcome of the Inquiry, which had just commenced, was unknown.  While Mr Cater was suggesting the possible result of the Inquiry, he specifically states, “I’m not going to sort of preclude the judgment of Mr Sofronoff”. 
  5. [317]
    I determine that the Twenty-Fourth Matter does not convey the pleaded imputations.

Twenty-Fifth Matter

  1. [318]
    The Twenty-Fifth Matter was broadcast on radio 2GB on 22 July 2015 commencing at approximately 8.10 am and continuing at 8.19 am.  Attachment 25 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [319]
    2GB and Mr Jones admit that the Twenty-Fifth Matter is of and concerning each of the plaintiffs.[178]
  3. [320]
    It is in issue whether the imputations are conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    was a disgusting and disgraceful person who had tried to evade his responsibility for the deaths of people in the Grantham flood disaster, but who was now finally being exposed by ordinary tough, brave, courageous Australians;
  2. (b)
    caused the Grantham flood by building a huge wall, three times higher than a truck, around his quarry, which collapsed, causing water to smash houses to bits and a shed to explode;
  3. (c)
    told a disgraceful lie by stating that a wall on his quarry that burst, causing water to smash houses to bits and a shed to explode, was a natural feature of the landscape, when he well knew that it was a man-made structure.
  1. [321]
    From Mr Jones’ delivery of this broadcast, the ordinary reasonable listener would have gained the clear impression that the outcome of the Grantham Floods Inquiry was a foregone conclusion.  That conclusion was that a manmade wall built by the Wagners at the quarry had burst, creating a surging wall of water which resulted in the Grantham Flood event.  This impression would have been readily gained by the listener from Mr Jones making the following statements:
  • “I’ll tell you what, if Denis Wagner was covering his face on the first day of the Grantham inquiry then yesterday was much more pain for the Wagners.”
  • “Well now the evidence after two days is starting to mount in this Grantham inquiry.”
  • “But the next witness changed the entire case.  Jon Sippel.”
  • “What he had to say changed the course of the entire case in a matter of hours.  He described the wall that was built around the quarry.  He said, three times higher than my truck.”
  • “Then he described watching the water build up behind the quarry wall to the extent that it was swirling, he said, in a circular direction.  … then suddenly he said he heard it, a long fifteen second crashing and banging, a massive noise that went on and on and on as the water burst through the banks of the quarry and smashed their houses to bit.  He said he could see one of his sheds exploding and bobbing out of the water and twenty minutes later, he said, he returned to his smashed up house with his wife and kids and all the water was gone.”
  • “I’m told it was a clear, precise, brutal statement of evidence of what happened.  It blew the inquiry away.  They adjourned for lunch with everyone saying Wagners are finished.  There was simply nowhere to go after that level of evidence.”
  • “As for the Wagners, well, I’ve nothing more to say other than what I’ve been saying for a long time.”
  • “I should say one other thing; it has been pointed out to me that the Wagners’ new hydrology study, which they are presenting as evidence to suggest that it wasn’t them, that new study admits that the wall – the quarry wall – was a man-made structure.  And that deliberately contradicts everything that the Wagners have claimed since this happened; they’ve always said it was a natural feature of the landscape.  The new hydrology report says it was a man-made structure.  It gets worse by the hour for that lot I can tell you.”
  1. [322]
    A technique used by Mr Jones to create the impression that the Inquiry would find the Wagners culpable, is to be effusive in his praise of the witnesses and the Commissioner, which stands in stark contrast to his derogatory comments and tone he reserves for the Wagners.  This technique is exemplified by the following statements:
  • “… Lisa Spieling giving evidence a knock out a mother of five, an army reservist, a businesswoman, she was extraordinary.”
  • “He [Jon Sippel] was a quietly spoken young man yesterday, neat of manner and dress.  He’s an electrician.  His family were there to support him, three rows of them. … The inquiry applauded him as he left the stand.”
  • “These people like Jon Sippel and Lisa Spieling were clearly heroes on the day of those floods.  Their only concern and actions were for others like their family and their neighbours but we were never allowed to hear their story.”
  • “Yesterday and on Monday a couple of genuine heroes walked back into that room and in many ways the story is about the two Australia’s we’re living under these days, the bureaucrats and the politicians who cover up – we’re seeing this at Liverpool Plains, Grantham – and then the ordinary tough, brave, courageous Australians who fight for truth and freedom and the right to tell their stories.”
  • “One listener texted me to say that Walter Sofronoff is a magnificent commissioner, compassionate, caring, protective of his little broken flock of victims.  He was an inspired choice.”
  1. [323]
    This praise by Mr Jones of the witnesses and the Commissioner is to be contrasted with what he says of the Wagners.  I have already quoted at [321] above most of Mr Jones’ references to the Wagners.  There is one additional derogatory remark that Mr Jones makes: “Rumour has it of course that they [the Wagners] have problems with their airport, unable to make a quid.”
  2. [324]
    Mr Jones in using this technique invites the listener to unfavourably compare the Wagners to those giving evidence at the Inquiry.  The listener is encouraged to view the Wagners negatively and to adopt a suspicious approach.  This results in the likelihood that an ordinary reasonable listener would draw adverse inferences against the Wagners.  One of these inferences is that the Wagners are “finished” because the Grantham Floods Inquiry will establish their culpability.
  3. [325]
    I reject the defendants’ submission that this broadcast is by and large a recitation of evidence given by witnesses the previous day at the Grantham Floods Inquiry, and that it would be understood by the ordinary reasonable listener in those terms and not as statements or assertions by Mr Jones about conclusions to be reached.[179]  I also reject the assertion by the defendants that “no prejudgment was being offered”.[180]  Such an assertion ignores the tone and structure of the broadcast discussed above.
  4. [326]
    Imputation (a) is conveyed.  The references to Denis Wagner “covering his face” and the Wagners being “finished” imply that the plaintiffs are culpable for the Grantham Flood event.  Although Mr Jones refers to “the bureaucrats and politicians who cover up”, this is in the context of Grantham.  He seeks to draw a distinction between “genuine heroes” and those involved in a cover-up.  The derogatory references concerning the Wagners, as contrasted with Mr Jones’ references to the witnesses, would lead the ordinary reasonable listener to readily infer that the Wagners are also involved in the cover-up. 
  5. [327]
    As to imputation (b), this imputation is also conveyed.  The ordinary reasonable listener would have understood Mr Jones’ references to the evidence of Mr Sippel, and Mr Jones’ statement that everyone was saying the Wagners were “finished”, to mean that the Wagners were culpable because Mr Sippel’s evidence was “irrefutable and conclusive”.[181]  I accept the plaintiffs’ submissions that, in context, the clear impression created by this broadcast is that the Wagners’ responsibility for the deadly Grantham floods had been exposed.[182]
  6. [328]
    Imputation (c) is conveyed by the ordinary and natural meaning of the words spoken by Mr Jones at the very end of the broadcast.  In referring to the Wagners’ new hydrology study, which admits that the quarry wall was a man-made structure, Mr Jones states: “… that deliberately contradicts everything that the Wagners have claimed since this happened; they’ve always said it was a natural feature of the landscape. … It gets worse by the hour for that lot I can tell you.”  The impression created by these words in the mind of the ordinary reasonable listener is that the Wagners’ previous claims about the quarry wall, which the listener has already been told was the cause of the flood, were lies.  Mr Jones’ use of the word “deliberately” and the words “It gets worse by the hour for that lot I can tell you” invite the listener to infer that the Wagners have done something wrong; that they have lied about the wall being part of the natural landscape, when it was in fact manmade.
  7. [329]
    2GB and Mr Jones admit that imputations (a) and (c) are defamatory of each of the plaintiffs.  For reasons previously given I also find that imputation (b) is defamatory. 
  8. [330]
    I determine that the Twenty-Fifth Matter is of and concerning each of the plaintiffs.  The Twenty-Fifth Matter conveyed that each of the first, second, third and fourth plaintiffs:
  1. (a)
    was a disgusting and disgraceful person who had tried to evade his responsibility for the deaths of people in the Grantham flood disaster, but who was now finally being exposed by ordinary tough, brave, courageous Australians;
  2. (b)
    caused the Grantham flood by building a huge wall, three times higher than a truck, around his quarry, which collapsed, causing water to smash houses to bits and a shed to explode;
  3. (c)
    told a disgraceful lie by stating that a wall on his quarry that burst, causing water to smash houses to bits and a shed to explode, was a natural feature of the landscape, when he well knew that it was a man-made structure.
  1. [331]
    Each of these imputations is defamatory of each of the plaintiffs.

Twenty-Sixth Matter

  1. [332]
    The Twenty-Sixth Matter was broadcast on radio 2GB on 23 July 2015 commencing at approximately 8.58 am.  Attachment 26 to these Reasons is a transcript of the words spoken by Mr Jones.  Only the second plaintiff, John Wagner, sues in respect of this broadcast.
  2. [333]
    2GB and Mr Jones admit that the Twenty-Sixth Matter is of and concerning John Wagner.  It is in issue whether the imputation was conveyed.  The pleaded imputation is that in its natural and ordinary meaning or alternatively by reason of certain extrinsic facts, the Twenty-Sixth Matter meant and was understood to mean that the second plaintiff conspired with Warren Truss, the Deputy Prime Minister of Australia, and other federal ministers, that they would cooperate together to cover up his culpability for the deaths of people in the Grantham flood disaster.[183]
  3. [334]
    The Twenty-Sixth Matter is similar in content to the Fifteenth, Sixteenth and TwentyFirst Matter, each concerning Beef Week.  The broadcast is short and is set out in full:

“Just in relation to the Liverpool Plains, you will recall about Beef Week in Rockhampton in May.  Everything I’ve told you.  Beef Week.

And a very funny thing happened then, at Rockhampton.  Because Warren Truss and co were there.  They were talking about agricultural policy and free trade deal. And it upset John Wagner, talking to the group, which involved Warren Truss, the Federal Ministers.  And one of them said to Wagner: be careful, the judge they’ve appointed to this has got it in for us.  This is the Grantham inquiry.

Then the conversation went like this: we need to cover each other’s backs in this, you look after us and we’ll look after you.  Beef Week in Rockhampton.  Is that the reason why the Federal Government is silent on the Liverpool Plains?  Who is looking after whom?  Is this why there was a cover up at Grantham?  You look after us, we look after you.

These are pretty sickening developments.  We’ll keep at it, with your support, and we’re grateful.  Thank you for that, thanks for your company – see you tomorrow.  Bye.”

  1. [335]
    For reasons already given in relation to the Fifteenth, Sixteenth and TwentyFirst Matters, the imputation is conveyed.
  2. [336]
    2GB and Mr Jones do not dispute that, if conveyed, the imputation is defamatory of John Wagner.
  3. [337]
    2GB and Mr Jones do not seek to defend this defamatory imputation.  As discussed below in relation to damages, I consider this imputation to be very serious.

Twenty-Seventh Matter

  1. [338]
    The Twenty-Seventh Matter was broadcast on radio 2GB on 24 July 2015 commencing at about 7.14 am and continuing at 7.21 am.  Attachment 27 to these Reasons is a transcript of the words spoken by Mr Jones.  The broadcast comprises introductory remarks by Mr Jones followed by an interview with Martin Warburton and Ken Arndt. 
  2. [339]
    2GB and Mr Jones admit that the Twenty-Seventh Matter is of and concerning each of the plaintiffs.
  3. [340]
    It is in issue whether the imputations arise.  There are seven pleaded imputations in relation to each of the first, second, third and fourth plaintiffs and an additional imputation in respect of the first plaintiff:

“91. In its natural and ordinary meaning, the Twenty-Seventh Matter meant and was understood to mean (as separate imputations arising in respect of each plaintiff) that each of the first, second, third and fourth plaintiffs:

  1. (a)
    is a person who thought he could get away with building an airport at Toowoomba without seeking proper approvals, and without having to pay for a national asset, the airspace over Oakey;
  1. (b)
    by reason of his corrupt relationship with the Coalition in Queensland and Canberra, was able to buy the airport at Toowoomba without seeking the required approvals and were then gifted Oakey airspace, which is a valuable national asset;
  1. (c)
    caused the deaths of 12 people by stockpiling overburden at his quarry so as to form a levee bank, in breach of a condition of the right to mine the quarry, which collapsed causing the Grantham flood;
  1. (d)
    told a disgraceful lie by stating that a wall alongside his quarry that collapsed, causing the Grantham flood and killing 12 people, was part of the natural landscape, when he well knew that it had in fact been constructed from a stockpile of overburden in breach of a condition of the right to mine the quarry;
  1. (e)
    sold his quarry to Boral in an effort to cover up his legal culpability for the horrific deaths of 12 people in the Grantham flood disaster;
  1. (f)
    disgracefully instructed the barrister appearing for him at the Grantham flood inquiry to bully a local resident, Ian Pinkerton, while cross-examining him as he gave evidence about the torment he and his family suffered during the fatal floods that hit the Lockyer Valley in 2011; and
  1. (g)
    has, for years, bullied and intimidated tough, brave and courageous victims of the 2011 Grantham flood in order to shut them up and cover up his culpability for causing the flood and the deaths of 12 people.
  1. In its natural and ordinary meaning, the Twenty-Seventh Matter meant and was understood to mean that the first plaintiff was a selfish coward for not simply admitting to his liability for the deaths of 12 people in the Grantham flood disaster.”[184]
  1. [341]
    In the course of this broadcast, Mr Jones repeats many of the same accusations made in previous broadcasts.  Mr Jones makes the following statements:
  • “Look, at week’s end, this Commission of Inquiry into what is infamously known as the Grantham floods has already offered extraordinary revelations, you just can’t believe this can happen in Australia.”
  • “Everyone knows the story, 2011, evidence, as you heard, that the Toowoombabased company Wagners, the darlings of the Coalition in Queensland and Canberra.  The mob who bought the airport at Toowoomba without seeking approvals and then were gifted Oakey airspace, gifted a national asset, handed over to a private company.  They thought they could please themselves, that the world ran according to their dictates.”
  • “Well, they had the rights to mine the quarry at Grantham.  One of the conditions was pretty simple, condition 4, overburden is not permitted to be stockpiled so as to form a levee bank.  There it is, as I said earlier this week, in front of me in writing.  The Wagners of course have said this is rubbish, that that was stockpiled, creating a massive wall alongside the quarry, they said, oh, it was part of the natural landscape.”
  • “In the flood, the quarry became a bathtub, the weight of the water collapsed the embankment and 12 people had no hope.  At least that’s what’s being alleged and being tested by this inquiry.  The Wagners couldn’t wait to sell the quarry, the same year as the floods, to Boral.  Boral haven’t operated the quarry since.”
  • “Annastacia Palaszczuk called for an inquiry, it began this week.  The people of Grantham are deeply in her debt.  It was a courageous decision in the face of many, on both sides of politics, who wanted the cover-up to continue.”
  • “Now, of course, these people have been bullied and intimidated for years, and that was the component of the cover-up.  He was bullied yesterday, Mr Pinkerton, by the lawyer representing the Wagners, Peter Davis QC.”
  • “Ken Arndt gave evidence challenging claims the wall at Wagners quarry was a natural feature.  He said, I’d been fishing there as far back as 30 years and I know it was once a paddock.   There was no wall there.  That’s it.  Mr Pinkerton said, here we are again having to re-live that day, and it rips our hearts out just being here.  This could have all been stopped if Denis Wagner had just said, yes, I f-d up.”
  • “He’s [Martin Warburton] convinced it’s about a dam wall collapsing.”
  • “He said to me it’s hard not to think that they got it so wrong.  We were all treated like stupid problems.  Like hillbilly hicks.  It’s a cover-up, you see.  Protecting their mates.”
  • “You [Martin Warburton] said the bullying and the intimidation I experienced towards those who stood up and asked questions about the event or made comments during the recovery that authorities didn’t agree with the bullying and the intimidation was disgusting.”
  • “The bullying is still going on, of course, with the crossexamination isn’t it?”
  • “You were convinced, of course, that this was the result of the manmade construction.”
  • “For people who are listening here on radio it should be said that it is not just the evidence, it’s the helicopter photos, there is video evidence, there are reports, hundreds of photographs, harrowing accounts, all landing on the lap of Mr Sofronoff, QC.”
  • “That’s it.  They just dumped it and built the wall.  And denied it.”
  • “Game, set and match.  Boys, game, set and match.”
  1. [342]
    Again in his delivery of this broadcast Mr Jones conveys to the ordinary reasonable listener that the Grantham Floods Inquiry will find as a foregone conclusion that the Wagners are culpable. 
  2. [343]
    As to imputations 91(a) and (b), they arise from words similar to those used in the Sixth, Ninth, Tenth, Eleventh, Eighteenth, Twenty-First and Twenty-Third Matters.  For the reasons given in relation to those matters, I find that imputations 91(a) and (b) are conveyed.
  3. [344]
    As to imputations 91(c), (d) and (e), these imputations are in similar terms to imputations (b), (c) and (d) conveyed by the Twenty-Third Matter.  For the same reasons, I find that imputations 91(c), (d) and (e) are conveyed.  I note that the defendants submit that imputation 91(c) does not arise because Mr Jones, in repeating the accusation that the embankment collapsed resulting in the deaths of 12 people, states: “at least that’s what’s being alleged and being tested by this inquiry”.[185]  Having listened to the broadcast, I accept the plaintiffs’ submission that these words are perfunctory and would be lost on the listener.[186]  The broadcast as a whole conveys the clear impression that the Wagners are culpable and that such a finding by the Grantham Floods Inquiry is a foregone conclusion.
  4. [345]
    As to imputation (f), the defendants submit that this imputation does not arise because there is no suggestion Mr Davis QC (as his Honour then was) had been given those instructions by the plaintiffs.  The ordinary reasonable listener would not, therefore, infer that the manner in which questions are asked by a barrister during cross-examination is something directed by the client.  The difficulty with this submission is that Mr Jones’ reference to Mr Pinkerton being “bullied” by Mr Davis QC is recounted in the context of Grantham residents having “been bullied and intimidated for years”, which constituted a “component of the cover-up”.  An ordinary reasonable listener would readily infer that the “bullying” of Mr Pinkerton in the course of cross-examination was a continuation of the Wagners’ previous conduct and carried out pursuant to their instructions.  Imputation 91(f) is conveyed.
  5. [346]
    As to imputation 91(g), this is conveyed by Mr Jones stating: “Now, of course, these people have been bullied and intimidated for years, and that was the component of the cover-up.  He was bullied yesterday, Mr Pinkerton, by the lawyer representing the Wagners, Peter Davis QC.”  Although earlier in the broadcast Mr Jones refers to “many, on both sides of politics, who wanted the cover-up to continue”, he extends the nature of this cover-up to “protecting their mates” by quoting Mr Warburton.  Further, by Mr Jones stating that “the bullying is still going on, of course, with the cross-examination” and referencing that to the cross-examination of witnesses by Senior Counsel for the Wagners, Mr Jones links years of previous bullying and intimidation with the Wagners’ present conduct.  Imputation 91(g) is conveyed.
  6. [347]
    As to the imputation concerning Denis Wagner, this is conveyed by the following passage:

“Ken Arndt gave evidence challenging claims the wall at Wagners quarry was a natural feature.  He said, I’d been fishing there as far back as 30 years and I know it was once a paddock.   There was no wall there.  That’s it.  Mr Pinkerton said, here we are again having to re-live that day, and it rips our hearts out just being here.  This could have all been stopped if Denis Wagner had just said, yes, I f-d up.”

  1. [348]
    I accept the plaintiffs’ submission that in the context in which this statement was made, the ordinary reasonable listener would have understood that the people of Grantham are having to re-live a tragic day, which saw 12 people killed and a town destroyed, because Denis Wagner has refused to admit his liability.  It is that refusal, and that alone, which is requiring the Grantham residents to continue to be traumatised, having their hearts ripped out.  In those circumstances, that refusal is an act of selfishness and the actions of a coward.  For these reasons the additional imputation relied upon by the first plaintiff was conveyed.[187]
  2. [349]
    I find that each of these imputations was conveyed by the Twenty-Seventh Matter.  Imputations 91(a) to (g) are defamatory of each of the plaintiffs.  The additional imputation is defamatory of the first plaintiff.

Twenty-Eighth Matter

  1. [350]
    The Twenty-Eighth Matter was broadcast on radio 2GB on 28 July 2015 commencing at approximately 6.45 am.
  2. [351]
    2GB and Mr Jones admit that the Twenty-Eighth Matter is of and concerning the plaintiffs.
  3. [352]
    It is in issue whether the imputations were conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    attempted to cover up his culpability for causing the deadly Grantham flood by pulling down a wall at his quarry straight after the flood and removing the material, which was full of big chunks of heavy rocks and cement, on the back of trucks; and
  2. (b)
    told a disgraceful lie by stating that the wall at his quarry that caused the deadly Grantham flood was a natural feature of the landscape, when he well knew it was in fact a man-made wall that was built from big chunks of heavy rocks and cement.[188]

An additional imputation is pleaded only in respect of the first plaintiff, Denis Wagner:

  1. (c)
    the first plaintiff engaged in a disgraceful and bizarre attempt to bully and intimidate a victim of the deadly Grantham flood, Ian Pinkerton, and to escape scrutiny for his culpability in causing the flood, by driving to Pinkerton’s house after the Flood Inquiry had adjourned, getting out of his car, and standing and staring at Pinkerton’s home.[189]
  1. [353]
    Mr Jones commences the broadcast by informing the listener that Mr Sofronoff QC had suspended the Grantham Floods Inquiry “due to quite unforeseeable circumstances”.  He refers to the next witness to be called, John Gillespie, whose evidence “will be red hot”.  Mr Jones states that Mr Gillespie’s evidence will be that he walked his dog past the quarry every morning and “saw them building the wall higher and higher”.  Another witness, Patrick Gallagher, engaged surveyors who found that the levee wall at the quarry was about 4.7 metres higher than the Queensland Floods Inquiry claimed.  Mr Jones then refers to the evidence of Tommy Friend, who saw “them build it and he then saw them pull it down straight after the flood.  He saw the material leaving on the back of trucks, it was all full of big chunks of heavy rocks and cement.”  Mr Jones emphasises the words “build it” and “pull it down”.  Mr Jones then states: “So much for the natural features of the landscape rubbish that Wagner goes on about.  Word is out the inquiry’s going to call Denis Wagner up as early as Wednesday.”
  2. [354]
    Mr Jones then raises the topic of bullying of potential witnesses:

“It may well be that some people are going to be brought forward to prevent the bullying of potential witnesses.  Last week, Ian Pinkerton, a former employee of Wagner’s, gave his evidence, where he said quote: why don’t you just admit you F-ed up, Denis.  It’s reported that Wagner was then seen allegedly pulling up in his car outside Pinkerton’s house in Grantham later than afternoon, after the inquiry had adjourned, and getting out of his car and standing and staring at Pinkerton’s home.  It’s believed that Pinkerton was sitting inside.  After a few minutes of this bizarre performance, Wagner drove off.  That sort of stuff, that tactic has been used on others.

Now, it is extraordinary, some of the stories that are being told here, but at the end of the day they’re not going to escape the scrutiny that must apply.  Look, just one thing – and I’ll keep you posted on that Grantham thing – it’s just appalling and the cover-up is being uncovered.  And there will be no escape for some.  None.”

  1. [355]
    As to imputation (a), this is conveyed by Mr Jones’ reference to the quarry wall being built “higher and higher” and being “about 4.7 metres higher than the original flood inquiry claimed”, and Mr Friend seeing “them [inferentially the Wagners] pull it down straight after the flood”.  One must listen to the broadcast to appreciate how Mr Jones emphasises the words “pull it down straight after the flood”.  Mr Jones informs the listener as to the nature of the material that is taken away on trucks, namely “big chunks of heavy rocks and cement”.  These words convey to an ordinary reasonable listener that the Wagners had the wall removed straight after the flood.  It is a ready inference to be drawn by the ordinary reasonable listener that the purpose to be achieved in removing this wall “straight after the flood” was to cover up the plaintiffs’ culpability.  This culpability is brought home to the listener by Mr Jones saying, “So much for the natural features of the landscape rubbish that Wagner goes on about”.
  2. [356]
    As to imputation (b), this is conveyed by the same words.  By referring to Wagner’s account of the wall being part of the landscape as “rubbish”, the listener is left with the clear impression that what Wagner has said is a lie.  It is a disgraceful lie because it seeks to cover up his culpability for the Grantham Flood event.
  3. [357]
    As to imputation (c), this is conveyed by Mr Jones recounting the story of Mr Denis Wagner being outside Mr Pinkerton’s house.  It is Mr Jones himself who refers to this conduct as a “bizarre performance”.  He also refers to this conduct as “that sort of stuff, that tactic has been used on others”.  Denis Wagner’s conduct is also described in the context of “bullying of potential witnesses”.  The defendants submit that this imputation is not conveyed because it is reported by Mr Jones as an allegation.  The words used by Mr Jones are: “it’s reported that Wagner was then seen allegedly pulling up in his car outside Pinkerton’s house in Grantham later than afternoon, after the inquiry had adjourned”.  Mr Jones’ tone and emphasis in delivering this part of the broadcast, in my view, convey to the ordinary reasonable listener that this allegation is true.  When he says the word “allegedly”, it is more of an aside.  This is to be contrasted with his use of emphasis when he is recounting Denis Wagner’s conduct.  The words “getting out of his car and standing and staring at Pinkerton’s home” are all emphasised.  Further, Mr Jones finishes the broadcast by stating that “they’re not going to escape the scrutiny that must apply … I’ll keep you posted on that Grantham thing – it’s just appalling and the cover-up is being uncovered.  And there will be no escape for some.  None.”  The impression conveyed by these words is that Denis Wagner sought to, or attempted to, bully and intimidate a witness.  I accept the plaintiffs’ submission that, given the sensationalist tone adopted by Mr Jones (which includes the suggestion that the suspension of the Inquiry was due to the bullying of potential witnesses), the listener would naturally have wondered why such bullying took place.  There could only be one answer to this: to prevent witnesses coming forward to expose Mr Wagner’s culpability for causing the flood.[190]
  4. [358]
    There is no issue that, if conveyed, the imputations are defamatory.
  5. [359]
    I determine that the Twenty-Eighth Matter conveyed the imputations that each of the first, second, third and fourth plaintiffs:
  1. (a)
    attempted to cover up his culpability for causing the deadly Grantham flood by pulling down a wall at his quarry straight after the flood and removing the material, which was full of big chunks of heavy rocks and cement, on the back of trucks; and
  2. (b)
    told a disgraceful lie by stating that the wall at his quarry that caused the deadly Grantham flood was a natural feature of the landscape, when he well knew it was in fact a man-made wall that was built from big chunks of heavy rocks and cement.
  1. [360]
    In respect of the first plaintiff, Denis Wagner, the Twenty-Eighth Matter also conveyed the imputation that he engaged in a disgraceful and bizarre attempt to bully and intimidate a victim of the deadly Grantham flood, Ian Pinkerton, and to escape scrutiny for his culpability in causing the flood, by driving to Pinkerton’s house after the Flood Inquiry had adjourned, getting out of his car, and standing and staring at Pinkerton’s home.  Each of these imputations is defamatory.

Twenty-Ninth Matter

  1. [361]
    The Twenty-Ninth Matter was broadcast on radio 2GB on 29 July 2015 commencing at approximately 6.44 am.  Attachment 29 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [362]
    2GB and Mr Jones admit that the Twenty-Ninth Matter is of and concerning each of the plaintiffs.  They also admit that in respect of the first plaintiff, Denis Wagner, the TwentyNinth Matter conveyed the imputation that Denis Wagner attempted to bully and intimidate a victim of the disastrous 2011 Grantham flood, Ian Pinkerton, by pulling up outside Pinkerton’s house after he had given evidence to the Flood Inquiry, getting out of his car, and standing and staring at Pinkerton’s home.[191]
  3. [363]
    It is in issue whether the Twenty-Ninth Matter conveyed the pleaded imputations that each of the first, second, third and fourth plaintiffs:
  1. (a)
    caused the disastrous 2011 Grantham flood by building a massive wall at his quarry that collapsed, sending water cannoning north-east and down to Grantham; and
  2. (b)
    told a disgraceful lie by stating that the massive wall at his quarry that caused the disastrous 2011 Grantham flood was already there when he bought the quarry, when he well knew that he had built the wall from rubbish at the quarry over a period of years.[192]
  1. [364]
    Yet again, Mr Jones in his delivery of this broadcast conveys to the ordinary reasonable listener that there will be only one outcome from the Grantham Floods Inquiry, namely that the Wagners will be found to be culpable.  Mr Jones makes the following statements:
  • “The general consensus from those at the hearing – and I’m speaking to these people regularly, the Grantham hearing yesterday – is that a quietly spoken farmer became the executioner.  Tony McIntosh known as Tony Mac was decimating.  The one photo he showed of the water with the quarry wall in the background was the killer, what they call in sport I suppose the money shot.  He became the executioner.”
  • “Yesterday it was quite clear from all the aerial footage, the pictures, and the verbal descriptions that the quarry wall held back a massive amount of water.  When the wall collapsed the water went straight across the full quarry and cannoned north east, hit Tommy Friend’s house, Johnny Sippel’s house, and then cannoned down to Grantham.”
  • “It was very clear that the quarry wall was higher than the northern creek banks.  Of course Grantham would still have flooded – it was a flood – but not with the force, the rapidity, and the ferocity with which the water hit the town.”
  • “It’s down to one question that now hangs over the whole thing; did Wagners build the wall by not taking the rubbish away?  Clearly the eye witnesses who’ve testified believe that they did.  Wagners will now say it was there when they bought the quarry.  Someone’s not telling the truth.  Denis Wagner’s in the dock today, this is straight out of MGM.”
  1. [365]
    After informing the listener that someone is not telling the truth Mr Jones proceeds to tell the listener of three matters, all of which, in my view, suggest to the listener that the person not telling the truth is Denis Wagner.  First, Mr Jones retells the story about Mr Wagner standing and staring at Mr Pinkerton’s house.  He queries whether Denis Wagner will be questioned at the Inquiry about this incident.  Irrespective, however, of any answers Mr Wagner may give, Mr Jones makes a factual assertion that “This is the Wagner tactic”.  Second, Mr Jones refers to the evidence of Patrick Gallagher, who first noticed the embankment wall increasing in size on the western side of the quarry in 2002.  Mr Gallagher’s evidence is that the wall was six metres high by 2005.  Third, when Mr Jones refers to Denis Wagner giving evidence at the Inquiry that day, he gratuitously adds, “The evidence is mounting against him”. 
  2. [366]
    The final matter which would suggest to the ordinary reasonable listener that the plaintiffs are culpable is Mr Jones’ references to Denis Wagner being in “the dock” today and the previous witness, Mr McIntosh, becoming “the executioner”.
  3. [367]
    Imputations (a) and (b) are conveyed.
  4. [368]
    2GB and Mr Jones admit that if imputation (b) is conveyed, it is defamatory of each of the plaintiffs.  They deny that imputation (a) is defamatory.  For reasons previously given, I find that imputation (a) is defamatory of each of the plaintiffs. 
  5. [369]
    I determine that the Twenty-Ninth Matter conveyed that each of the first, second, third and fourth plaintiffs:
  1. (a)
    caused the disastrous 2011 Grantham flood by building a massive wall at his quarry that collapsed, sending water cannoning north-east and down to Grantham; and
  2. (b)
    told a disgraceful lie by stating that the massive wall at his quarry that caused the disastrous 2011 Grantham flood was already there when he bought the quarry, when he well knew that he had built the wall from rubbish at the quarry over a period of years.
  1. [370]
    The Twenty-Ninth Matter conveyed in respect of the first plaintiff, Denis Wagner, that he attempted to bully and intimidate a victim of the disastrous 2011 Grantham flood, Ian Pinkerton, by pulling up outside Pinkerton’s house after he had given evidence to the Flood Inquiry, getting out of his car, and standing and staring at Pinkerton’s home.
  2. [371]
    Imputations (a) and (b) are defamatory of each of the first, second, third and fourth plaintiffs.  The additional imputation conveyed is defamatory of the first plaintiff.

Thirtieth Matter

  1. [372]
    The Thirtieth Matter was broadcast on radio 2GB on 31 July 2015 commencing at approximately 6.43 am.  Attachment 30 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [373]
    2GB and Mr Jones admit that the Thirtieth Matter is of and concerning each of the plaintiffs.
  3. [374]
    There are six pleaded imputations alleged to be conveyed by the Thirtieth Matter.  The first three are in respect of the first, second, third and fourth plaintiffs and allege that each:
  1. (a)
    was a selfish, insensitive grub for having lied about the fact that the collapse of an illegal levee bank at his quarry was the cause of the flood that caused the horrific deaths of 12 people in the Grantham flood disaster;
  2. (b)
    is a selfish, insensitive grub who falsely claimed to have suffered in the Grantham floods in which 12 people died; and
  3. (c)
    in concert with politicians, big business and the police, engaged in a cover-up of his culpability for the Grantham flood in which 12 people died.[193]
  1. [375]
    Two further imputations are said to be conveyed in respect of the first plaintiff, Denis Wagner, namely that he:
  1. (d)
    while giving evidence at the Grantham flood inquiry, was forced to admit that he had previously lied about dumping overburden along the side of the creek at his quarry contrary to the conditions allowing him to mine the quarry, about knowing that overburden have been so dumped, and about dumping overburden under powerlines; and
  2. (e)
    disgracefully claimed that victims of the Grantham flood had told false stories under oath at the flood inquiry.[194]
  1. [376]
    The plaintiffs also plead that the Thirtieth Matter conveyed an imputation in respect of the second plaintiff, John Wagner, namely that he:
  1. (f)
    hosted a dinner for the state conference of AgForce in Queensland, with the intention of getting into bed with farmers and getting AgForce to sell out so that he can plunder the agricultural resources that AgForce is meant to be defending.[195]

2GB and Mr Jones admit that the Thirtieth Matter conveyed imputations (b), (e) and (f), but deny that imputations (a), (c) and (d) were conveyed.

  1. [377]
    The plaintiffs, accurately in my view, describe this broadcast as a “scathing attack”.[196]  Mr Jones, in outlining the evidence given to the Grantham Floods Inquiry by Denis Wagner, makes the following statements:
  • “To sew up what happened at the Grantham inquiry yesterday, you could basically say that Denis Wagner, the boss of the Wagner company, by the end of the day was admitting everything he’d previously denied.  Wagner, confronted with devastating photographs, was forced to admit that yes, they did dump overburden along the side of the creek, contrary to the conditions which allow them to mine the quarry.”
  • “At the end of the day, Wagners were at their very, very worst.”
  • “The Toowoomba Chronicle running a headline about how the quarry owner Wagner claimed that the flood inquiry had told false stories.  Does Mr Wagner understand that these personal stories about what happened to Grantham people, during the flood, were given under oath?  Now Wagner is saying they didn’t ring true.”
  • “He said his family had suffered from the flood, and his business had been impacted.  Is he serious?  A family worth millions, with a private jet and a chopper, which lives in Gone With the Wind style, and they’re saying they suffered?  And 12 people died.  Lost their lives.  What kind of selfish, insensitive grubs are these people?”
  • “Mr Wagner says, we suffered too.  He’s got to be kidding.”
  • “The real question to be asked is, how did politicians and their mates in big business, and the police, allow all this to be covered up.”
  • “And now Mr Wagner is suggesting that false stories have been told to the inquiry under oath, do you mind, and his family suffered from the flood, and business had been impacted.  I think what Mr Wagner was really saying was that justice is on its way and it might not be a comfortable outcome for him.”
  1. [378]
    The impression these words would create in an ordinary reasonable listener is that Denis Wagner was finally forced to confess that the Wagner company had dumped overburden along the side of the creek contrary to conditions which allowed it to mine the quarry.  The admission was forced out of him because he was “confronted with devastating photographs”.  The ordinary reasonable listener would infer that everything previously stated by Denis Wagner in this respect was lies.
  2. [379]
    Mr Jones further accuses the Wagners of causing a story to be published in the Toowoomba Chronicle suggesting that witnesses at the Inquiry had told false stories.  As correctly submitted by the plaintiffs, the clear impression is that Mr Wagner is claiming that the people of Grantham, the victims of the flood, had told false stories.  The ordinary reasonable listener would have understood the claim attributed to Mr Wagner as “shocking and unacceptable, or, disgraceful”.[197]  Mr Jones also suggests to the listener that Mr Wagner in his evidence was more concerned about the damage to his own business than the victims of the Grantham Flood event.  He contrasts Mr Wagner’s attitude with the death of one of the victims of the flood, Peter Van Straten, “after a long battle with terminal illness”.  He refers to Mr Van Straten as trying “to hang in and live long enough to see justice”.  The unfortunate story of Mr Van Straten would be contrasted by the ordinary reasonable listener with the attitude of the Wagner family, with Mr Jones asking his listening audience, “What kind of selfish, insensitive grubs are these people?”
  3. [380]
    Imputation (a) is conveyed.
  4. [381]
    Imputation (c) is conveyed by Mr Jones’ reference to a cover-up.  An ordinary reasonable listener would readily infer that the cover-up relates to the Wagners’ culpability for the Grantham flood disaster.  A listener would understand the reference to “mates” in “big business” as a reference to the Wagner family.
  5. [382]
    Imputation (d) also arises from the statements of Mr Jones discussed above, in particular the statements made by Mr Jones outlined in the first two dot points of [377].  In addition the following statement of Mr Jones is relevant to determining that imputation (d) was conveyed:

“Condition Four says, quote, overburden is not permitted to be stockpiled so as to form a levee bank.  Well now, oh yes they did dump overburden.  On Wednesday he said they didn’t know; the staff might have done it; he didn’t know. On Wednesday he told the Commission Inquiry they wouldn’t have dumped overburden under the power lines.  Yesterday he had to admit that they did.”

  1. [383]
    Mr Jones, by using such terms as “was forced to admit”, “he had to admit”, and “everything he had previously denied” conveys to the ordinary reasonable listener that Denis Wagner, in the course of giving evidence at the Grantham Floods Inquiry, was forced to admit he had previously lied about the dumping of overburden contrary to conditions allowing him to mine the quarry.
  2. [384]
    As to the first, second, third and fourth plaintiffs, imputations (a), (b) and (c) are conveyed.  In relation to the first plaintiff only, imputations (d) and (e) are conveyed.  In relation to the second plaintiff only, imputation (f) is conveyed.
  3. [385]
    2GB and Mr Jones admit that if the imputations are conveyed, each is defamatory of the relevant plaintiff.[198]

Thirty-First Matter

  1. [386]
    The Thirty-First Matter was broadcast on radio 2GB on 4 August 2015 commencing at approximately 8.14 am.  Attachment 31 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [387]
    2GB and Mr Jones admit that the Thirty-First Matter is of and concerning each of the plaintiffs.
  3. [388]
    Whether the imputations are conveyed is in issue.  There are two pleaded imputations, one in respect of all plaintiffs, and an additional imputation relevant only to the first plaintiff, Denis Wagner.  The pleaded imputations are:
  1. (a)
    that each of the first, second, third and fourth plaintiffs was knowingly involved in a scandalous cover-up of the role that his quarry played in the deaths of people in the Grantham flood disaster, a cover-up that resulted in an appalling injustice;[199]
  2. (b)
    the first plaintiff, while giving evidence at the Grantham Floods Inquiry, was forced to admit that he had previously lied about overburden having being dumped on the western side of his quarry near Lockyer Creek.  This imputation is alleged to be carried by reason of an innuendo meaning by reference to the following extrinsic facts:
  1. (i)
    the first plaintiff gave evidence before the Commission of Inquiry on the occasion referred to; and
  2. (ii)
    on 11 August 2015, the first plaintiff was identified by Mr Jones in his radio program as the person who had given such evidence.[200]
  1. [389]
    In the course of the broadcast Mr Jones made the following statements:
  • “This Grantham Flood Commission of Inquiry is examining, as you know, whether a quarry caused or contributed to the January flood in 2011 that killed 12 people, the Wagner quarry.”
  • “Wagner, of course last week in the box under cross-examination, it wasn’t a pretty sight.  He was shown an aerial photograph taken in 1997 of the quarry, was asked if he agreed it depicted the land in its natural state.  Mr Wagner said the picture wasn’t clear enough, but then agreed the photo showed that overburden had been dumped on the western side of the quarry near the Lockyer Creek.  To which Mr Sofronoff, the Commissioner, said well we can eliminate it, can’t we, as being a safety barrier.  Mr Wagner: yes.  Mr Sofronoff: it looks like overburden’s been dumped there; Mr Wagner: yes.  Mr Wagner had previously denied the very thing he was now agreeing to.”
  1. [390]
    Mr Jones then refers to the evidence of the Channel 9 pilot who flew a helicopter over Grantham making a video “on that fateful day”.  He introduces this evidence by saying, “Yesterday was bombshell stuff”.  Mr Jones identifies this video as lasting only one minute, causing Mr Sofronoff QC to instruct a full search for the rest of the footage.  Mr Jones then poses the question, “How come Channel Nine didn’t have the full footage?”  He continues:
  • “I can assure you, the entire tape is about 24 minutes, I know for a fact it’s full of cockpit conversation.  … and it demonstrates what happened.  But more importantly, it demonstrates what kind of cover up we’re talking about.  Anyone who sees the video will know that an awful injustice has been done.  Why were some people being protected?”
  • “The video shows the quarry wall, every house, the conversation of the pilots, the fact that people didn’t see anything coming, that there was washing on the line.  There are cockpit discussions about how many people must surely have died – all there.  And the video makes it clear there’s not a single doubt as to what happened at Grantham.  Why was one minute presented to the Commission yesterday?”
  • “As I said, the full video exists, and when I get hold of it, I – at least when I’ve got my copy of it – I will play it on Richo and Jones.  This is a scandal, make no mistake.  And I said that from day one.”
  1. [391]
    As to imputation (a), the defendants submit that it is not conveyed “because there is no definitive account of the role played by the quarry in the deaths of people in Grantham.  Listeners are told that that was the subject of the Inquiry that was taking place.  This was the opening passage of the broadcast and more likely therefore to have set the tone.”[201]  I do not accept this submission.  The submission relies upon Mr Jones’ opening words: “This Grantham Flood Commission of Inquiry is examining, as you know, whether a quarry caused or contributed to the January flood in 2011 that killed 12 people, the Wagner quarry.”  These words are not emphasised by Mr Jones and are delivered in what may be described as a flat tone.  Although these words suggest that the outcome of the Inquiry is unknown, when listened to as a whole the delivery and content of the broadcast conveys to the ordinary reasonable listener that the Wagners’ culpability, which has been the subject of a cover-up, will be exposed.  In referring to the Channel 9 video, Mr Jones asserts that “it demonstrates what happened”.  He further asserts that the video demonstrates “what kind of cover up we’re talking about” and that anyone who sees the video will know that an “awful injustice” has been done.  In asking his listeners, “[W]hy were some people being protected?” Mr Jones invites the listener to speculate as to who was being protected.  This is in the context of recounting Denis Wagner’s evidence to the Inquiry.  Mr Jones refers to the Channel 9 video as showing the quarry wall and that the video “makes it clear there’s not a single doubt as to what happened at Grantham”.  He tells his listeners, “This is a scandal, make no mistake”. 
  2. [392]
    As correctly submitted by the plaintiffs, the whole broadcast is sensational and insinuating in tone and invites a degree of loose thinking on the part of the ordinary reasonable listener.  In such circumstances, the ordinary reasonable listener would have understood that the cover-up, which resulted in an awful injustice, must relate to the very matter being examined by the Inquiry: the role the Wagner quarry played in the Grantham Flood event.[202]
  3. [393]
    Imputation (a) is conveyed.
  4. [394]
    Imputation (b), which concerns the first plaintiff, is carried by the words in the first paragraph of the broadcast, which are similar to the words used by Mr Jones at the commencement of the Thirtieth Matter.  The inference may be drawn that at least some of the audience listening to the Thirty-First Matter would have been aware that Denis Wagner had given evidence before the Grantham Floods Inquiry.  For the reasons given above in relation to imputation (d) conveyed by the Thirtieth Matter, I find that imputation (b) was conveyed.
  5. [395]
    I determine that the Thirty-First Matter conveyed in relation to each of the plaintiffs imputation (a).  The Thirty-First Matter also conveyed imputation (b) in respect of the first plaintiff, Denis Wagner.
  6. [396]
    2GB and Mr Jones admit that, if conveyed, each of these imputations is defamatory of the relevant plaintiff.

Thirty-Second Matter

  1. [397]
    The Thirty-Second Matter was broadcast on radio 2GB on 11 August 2015 commencing at approximately 7.19 am and continuing at 7.40 am.  Attachment 32 to these Reasons is a transcript of the words spoken by Mr Jones, including those spoken by him in an interview he conducted with a journalist, Amanda Gearing.
  2. [398]
    2GB and Mr Jones admit that the Thirty-Second Matter is of and concerning each of the plaintiffs.
  3. [399]
    Whether the imputations are conveyed is in issue.  There are three pleaded imputations in respect of the first, second, third and fourth plaintiffs, and one imputation which concerns only the first plaintiff, Denis Wagner.  As to the first three imputations, they are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    caused the Grantham flood that killed 13 people on 10 January 2011 by constructing a massive wall at his quarry, which enabled a huge build-up of floodwater upstream of the wall, which in turn destroyed the wall, sending a wall of water at a speed and rate of rise that was phenomenal through the floodplain area of Grantham;
  2. (b)
    attempted to cover up his culpability for causing the Grantham flood that killed 13 people on 10 January 2011, by removing large sections of an embankment on the northern side of his quarry in May 2011 so that it could not be the subject of a hydrology report; and
  3. (c)
    engaged in a sinister cover-up of his culpability for causing the Grantham flood that killed 13 people on 10 January 2011, by attempting to intimidate a journalist and confiscate photographic evidence.[203]
  1. [400]
    The imputation in respect of the first plaintiff is that he:
  1. (d)
    while giving evidence at the Grantham flood inquiry, was forced to admit that he had previously lied about the embankment at his quarry that exacerbated the 2011 Grantham flood being part of the natural landscape.[204]
  1. [401]
    The Thirty-Second Matter is a lengthy broadcast.  It commences with introductory remarks by Mr Jones in which he does not mention the Wagners at all.  He concludes these introductory remarks by referring to Mr Cater’s article in The Spectator.  Mr Jones paraphrases what Mr Cater wrote: “…the killer flood that wrecked the town of Grantham in 2011 was not, as that Commission concluded, a purely natural disaster caused by what we are now obliged to call a weather event, it was a man-made tragedy triggered by a collapsing quarry wall.  He wrote, someone has to answer for that.”
  2. [402]
    Mr Jones then introduces Amanda Gearing, who has made a comprehensive submission to the Grantham Floods Inquiry.  The primary topic of his interview with Ms Gearing is this submission.  Mr Jones informs the listener that in Ms Gearing’s submission she refers to large sections of the remaining embankment of the northern side of the quarry being removed in May 2011.  When asked by Mr Jones who removed these sections, Ms Gearing responds, “I’m assuming that that was by the people who owned the quarry at the time”, to which Mr Jones replies, “Wagners”.
  3. [403]
    Ms Gearing then makes the following statement:

“Which was Wagners.  And that’s partly because we were there.  We went in there because we heard – well I heard from Tom Friend that there was large machinery there taking down part of the embankment, and I was working at the time on a story with Tony Koch, he got a photographer and we went there and we asked the photographer to take some quick shots and get out.  He spent quite a long time doing it, so much time that we could see people in the cabs making phone calls, and before the photographer could get back in the car there was a four wheel drive preventing us from getting out of the quarry.  Tony Koch had a quick word to the photographer and said grab that card, give it to Amanda, Amanda shove it down your bra – which I did.  Tony then spoke to the person who stopped us and that person demanded the camera card.  So I can only conclude from that that what we had on the camera card was relevant.”

Mr Jones responds: “Correct”.  From this passage and Mr Jones’ reference to The Spectator article, the plaintiffs submit that the ordinary reasonable listener would have understood Mr Jones to be asserting, as a matter of fact, that the devastating Grantham flood was not a natural disaster, but rather a man-made tragedy triggered by the collapsing quarry wall.  That someone must “answer for” this man-made tragedy would have been understood by the ordinary reasonable listener to mean someone is to be held responsible for doing something wrong.[205]

  1. [404]
    As to Ms Gearing visiting the quarry, the plaintiffs submit that the ordinary reasonable listener would have understood that the reason she was visiting the quarry was because she had heard that the embankment was being removed.  She and her companions were in effect prevented from leaving the quarry by a four wheel drive, and the person in the four wheel drive who stopped them demanded the camera card on which the photos were taken.  The plaintiffs submit that the listener would have understood Ms Gearing to be saying that she and her companions were intimidated by this demand, not least because it prompted Mr Koch to tell Ms Gearing to hide the camera card in her underwear.  The listener, according to the plaintiffs, would have understood that the person was demanding the camera card because it contained something incriminating and which there was a necessity to conceal.[206]  This is the substance of imputation (c).  The defendants submit that imputation (c) does not arise because there is no suggestion of a cover-up and, in particular, there is no suggestion of intimidatory behaviour.  Mr Koch, listeners are told, “spoke to the person who stopped us and that person demanded the camera card”.  According to the defendants, demanding the camera card from a person who had apparently been trespassing on the quarry grounds, without more, is hardly behaviour likely to be intimidating.  There is nothing said, for example, about demeanour, or what was said, or that anything was actually done, other than a single demand.[207]  The difficulty I have with the defendants’ submission is the context in which the incident is conveyed by Ms Gearing.  The incident takes place in May 2011, approximately four months after the Grantham Flood event.  The reason for Ms Gearing attending the quarry is conveyed to the listener, namely to take photographs because large sections of the remaining embankment at the quarry were being removed.  The element of intimidation being conveyed to the ordinary reasonable listener arises from Ms Gearing’s own conclusion that the photographs on the camera card were relevant.  The implication is that the Wagners, as owners of the quarry, were seeking to cover up their culpability by removing the embankment and did not wish there to be any photographic evidence of such removal.  The cover-up is “sinister” in the sense that what is sought to be covered up is the Wagners’ culpability for the deadly 2011 Grantham floods.
  2. [405]
    As to imputation (b), the cover-up extends to removing large sections of the embankment “so that it could not be the subject of a hydrology report”.  This meaning is said to arise from the listener having been informed, earlier in the broadcast, that the Sinclair Knight Merz hydrology report commissioned by the Queensland Floods Inquiry had ignored the existence of a large embankment around the Grantham quarry and, in substance, the report had been “dismissed” on this basis.  This extended meaning to imputation (b) is not, in my view, conveyed by the broadcast.  What is conveyed is an imputation that each plaintiff attempted to cover up his culpability for causing the Grantham flood that killed 13 people on 10 January 2011 by removing large sections of an embankment on the northern side of his quarry in May 2011.
  3. [406]
    For imputations (a), (b), (c) and (d), the plaintiffs also rely on the following exchange between Mr Jones and Ms Gearing:

“ALAN JONES:  You say in your submission the natural disaster was exacerbated by human intervention in the landscape.  You talked to Mr Harold George who said that when he worked there which would be pre Wagner’s, there was no- he said that this didn’t exist, the landscape had changed significantly since he worked there.  You say Mr George said any claim the embankment’s unnatural ground are not true.  They were not there when he worked there.  Didn’t Mr Denis Wagner initially argue that this was part of the natural landscape and didn’t he under cross examination have to concede that that wasn’t correct?

AMANDA GEARING: Yes that’s true.

ALAN JONES: Right, and you say it was exacerbated, the natural disaster was exacerbated by human intervention in the landscape.  Whose intervention therefore could that be?

AMANDA GEARING: Well it’s a range of people who would be people who are working at the quarry.  Now…

ALAN JONES: Wouldn’t they be employed by Wagner’s?

AMANDA GEARING:  Yes- well, yes they were.

ALAN JONES: See why I’m asking this there’s a headline at the weekend and I know one of the concerns you have and I can’t believe that Mr Sofronoff doesn’t have [indistinct] the way in which this stuff’s been reported.  It was a massive headline; Alan Jones turns the Grantham flood inquiry into a blame game.  And it says- the story said the Grantham inquiry headed by former Solicitor-General- it’s a big headline in the Courier Mail at the weekend, Walter Sofronoff QC, has not heard a shred of evidence of cover ups or criminal wrongdoings by police.  Well that’s a judgement yet to be handed down, the premiers, the Wagners or anybody else.  But then the article said this: There’s a growing sense at the inquiry that the quarry’s part in the flooding was negligible just as the original 2012 Cate Holmes flood inquiry found.  I mean how can that ascertain [sic] be made?”

  1. [407]
    From this exchange the plaintiffs submit that the ordinary reasonable listener was given several distinct messages:
  1. (a)
    first, those responsible for the human intervention in the landscape (which they have already been told caused the killer flood) were the Wagners or people employed by them;
  2. (b)
    second, that it is the Wagners who should be held responsible; and
  3. (c)
    third, that Denis Wagner had in fact lied about the landscape at the quarry.[208]
  1. [408]
    The defendants submit that if imputations (a), (b) and (c) are conveyed by the ThirtySecond Matter, the meanings are only conveyed in respect of the first plaintiff.  The defendants rely on the following passage spoken by Ms Gearing:

“… Alan, but it wasn’t all the Wagners.  And this is where we get to really what was going on, and we’ve had it in evidence during the week.  When John Wagner gave his evidence, and when the inquiry began on the very first day when the inquiry opened on July 20, everybody was in Gatton Cultural Centre to hear that evidence.  There was one person who wasn’t there.  That one person was a Wagner- John Wagner.  John Wagner went to Tom Friend’s house which is exactly opposite the quarry, and John Wagner asked Tom Friend some really interesting questions.  The questions were Tom where did the water go in the flood?  Where is the quarry pit?  Where was the embankment?  What happened to your house and the house around- the other house here, which Tom explained they were both trashed.  And he said and how far is it to where the people were killed? 

Now what we have here is a family not communicating.  One man, Denis, is in charge of the quarry operations and has been manager of that quarry for 11 years.  John Wagner is managing other big things, but the problem is Denis could not tell John what was going on, and John came down there with his camera to find out on day one of the inquiry.”

  1. [409]
    According to the defendants, the meanings constituting imputations (a), (b) and (c), all of which relate to the quarry, could only have been understood as being directed at the first plaintiff.  The point made by Ms Gearing is not taken up by Mr Jones in the interview at all.  He had previously referred to the quarry being owned by “Wagners”, to which Ms Gearing’s response was “Which was Wagners”.  Although Ms Gearing draws the distinction to Mr Jones’ attention, because of Mr Jones’ previous and subsequent references to “the Wagners”, the ordinary reasonable listener would not have appreciated the distinction drawn by Ms Gearing.  Even if such a distinction should be drawn in relation to imputation (a), no such distinction should be drawn in relation to imputations (b) and (c), which deal with a cover-up.  As to there being a cover-up, the plaintiffs rely on further words spoken by Mr Jones in the broadcast: “… it’s a big headline in the Courier Mail at the weekend, Walter Sofronoff QC, has not heard a shred of evidence of cover ups or criminal wrongdoings by police.  Well that’s a judgement yet to be handed down, the premiers, the Wagners or anybody else.”  The plaintiffs submit, and I accept, that this phrase would give the ordinary reasonable listener the impression that the statement in the Courier Mail article is inaccurate, and that in fact there will be some form of judgment handed down which does contain evidence of cover-ups involving the Wagners.[209]
  2. [410]
    As to imputation (d), this imputation arises from Mr Jones’ reference to Denis Wagner conceding in cross-examination that his previous references to the embankment being part of the natural landscape were not correct.  As this concession was given by Mr Wagner under cross-examination, an ordinary reasonable listener would understand that Mr Wagner’s previous references were lies.
  3. [411]
    2GB and Mr Jones admit that, if conveyed, imputations (b), (c) and (d) are defamatory of the relevant plaintiff.  For reasons given above, imputation (a) is also defamatory.
  4. [412]
    I determine that the Thirty-Second Matter conveyed imputations that each of the first, second, third and fourth plaintiffs:
  1. (a)
    caused the Grantham flood that killed 13 people on 10 January 2011 by constructing a massive wall at his quarry, which enabled a huge build-up of floodwater upstream of the wall, which in turn destroyed the wall, sending a wall of water at a speed and rate of rise that was phenomenal through the floodplain area of Grantham;
  2. (b)
    attempted to cover up his culpability for causing the Grantham flood that killed 13 people on 10 January 2011 by removing large sections of an embankment on the northern side of his quarry in May 2011;
  3. (c)
    engaged in a sinister cover-up of his culpability for causing the Grantham flood that killed 13 people on 10 January 2011, by attempting to intimidate a journalist and confiscate photographic evidence.
  1. [413]
    In respect of the first plaintiff, the Thirty-Second Matter conveyed the imputation that he, while giving evidence at the Grantham Floods Inquiry, was forced to admit that he had previously lied about the embankment at his quarry that exacerbated the 2011 Grantham flood being part of the natural landscape.

Thirty-Third Matter

  1. [414]
    The Thirty-Third Matter was broadcast on radio 2GB on 18 August 2015 commencing at approximately 7.42 am.  Attachment 33 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [415]
    2GB and Mr Jones admit that the Thirty-Third Matter is of and concerning each of the plaintiffs.
  3. [416]
    It is in issue whether the imputations are conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    caused the lethal Grantham flood by constructing a massive, illegally built, wall at his quarry which burst, sending billions of litres of water into Grantham;

(aa) in the alternative to (a), caused the lethal Grantham flood when a massive, illegally built wall at his quarry burst, sending billions of litres of water into Grantham; and

  1. (b)
    sought to mislead the Sofronoff inquiry by instructing his lawyer to assert that his quarry had no material impact on the flooding that occurred in Grantham in 2011, when he well knew that billions of litres of water had built up behind a massive, illegally built wall at the quarry that burst, sending the water into Grantham.[210]
  1. [417]
    This broadcast concerns the Grantham Floods Inquiry and a hydrology report which Mr Jones states “was leaked last week”.  The finding of that hydrology report was that the quarry did not contribute to the disaster.  Having stated the conclusion of the report, Mr Jones tells his listeners, “Believe that and you’ll believe anything”. 
  2. [418]
    Mr Jones follows this by summarising the opening statements of the legal representatives for the victims to the Grantham Floods Inquiry.  These statements are to the effect that the quarry did contribute to the disaster when a wall burst, sending a large influx of water into Grantham.  Mr Jones then recounts the opening statement of the Wagners’ legal representative to the effect that the quarry did not cause or materially contribute to the flooding in Grantham, which was inevitable based on the magnitude of the flooding.  Mr Jones’ tone in saying these words is to be contrasted with how he delivers the content of the opening statements of the legal representatives for the victims.
  3. [419]
    Mr Jones continues:

“… inevitable that 12 people would be killed.  There have been floods of that kind in Grantham before, no one died.  But here was this wall, massive wall – it shouldn’t have been built – illegal.  The water, water, building up, billions of litres of water, the wall cracks goes whoosh, bang, nowhere to go, heads towards the railway line, nowhere to go, but the wall, the water wouldn’t have been near the railway line if it hadn’t been banked up behind the quarry wall.

We’ve had similar floods in Grantham, of the same dimension, no one lost their life.  But of course, the defence that the wall didn’t contribute to the flooding reminded me of Mandy Rice-Davies, way back in the 60s, in the famous Profumo affair, when she said oh Profumo, well he would say that, wouldn’t he.  And they would say that.”

  1. [420]
    The words spoken by Mr Jones create the impression that the leaked hydrology report cannot be believed, and that the true cause of the Grantham Flood event is as described by the legal representatives for the victims.
  2. [421]
    As to imputation (a), Mr Jones refers to a “massive wall – it shouldn’t have been built – illegal” in the context of having summarised the submission of the Wagners’ legal representatives that the quarry had no material impact on the flooding.  An ordinary reasonable listener would infer that the Wagners were responsible for the construction of the illegal wall, the collapse of which caused “billions of litres of water” to flood Grantham.  Such an impression is reinforced by Mr Jones’ reference to Mandy RiceDavies, conveying to the ordinary reasonable listener that of course the Wagners would say that the quarry did not contribute to the flooding.  I therefore find that imputation (a) is conveyed rather than the alternative imputation (aa). 
  3. [422]
    I do not accept, however, that imputation (b) is conveyed.  Although Mr Jones invites the ordinary reasonable listener to be sceptical of the Wagners’ position that the quarry had no material impact on the flooding, this would not convey that each of the plaintiffs had sought to mislead the Grantham Floods Inquiry by instructing his lawyer to assert this position.  The ordinary reasonable listener in the course of this broadcast is also informed that there is a hydrology report which has been leaked which is to the same effect.  Mr Jones does not identify whether the leaked hydrology report has been commissioned by the Grantham Floods Inquiry itself, or by another.
  4. [423]
    I therefore determine that the Thirty-Third Matter conveyed that each of the first, second, third and fourth plaintiffs caused the lethal Grantham flood by constructing a massive, illegally built wall at his quarry which burst, sending billions of litres of water into Grantham.
  5. [424]
    2GB and Mr Jones admit that, if conveyed, imputation (a) is defamatory of each of the plaintiffs.

Thirty-Fourth Matter

  1. [425]
    The Thirty-Fourth Matter was broadcast on radio 2GB on 20 August 2015 commencing at approximately 7.42 am.  Attachment 34 to these Reasons is a transcript of the words spoken by Mr Jones.
  2. [426]
    It is in issue whether the Thirty-Fourth Matter is of and concerning the plaintiffs.  The primary topic of the broadcast is the hydrology report and evidence given by Dr John Macintosh to the Grantham Floods Inquiry, which Mr Jones states “[c]leared the Wagner quarry of all responsibility for creating or exacerbating the devastating four to six metre surge, which killed 12 people”.  Mr Jones continues, “Like all things, if you’re not careful, you put in a levee bank to solve one problem, and you can cause another”.  The plaintiffs submit that the use of the pronoun “you” in context can only be a reference to a person or persons who “put in a levee bank”.  Coupled with the references to the plaintiffs’ surname, the ordinary reasonable listener of the Thirty-Fourth Matter might think that the person or persons being referred to were the plaintiffs.  I accept this submission, and for reasons given in [47] to [50] above I find that the Thirty-Fourth Matter is of and concerning each of the plaintiffs.
  3. [427]
    It is also in issue whether the imputations are conveyed.  The pleaded imputations are that each of the first, second, third and fourth plaintiffs:
  1. (a)
    illegally constructed a massive levee bank at his quarry; and
  2. (b)
    caused the deaths of 12 people in the Grantham flood, by constructing an illegal, massive levee bank at his quarry that created or exacerbated a devastating and fatal four to six metre surge of floodwater.[211]
  1. [428]
    Imputation (a) is conveyed to the ordinary reasonable listener by Mr Jones’ use of the words:
  • “Well, Dr Macintosh’s has had to spend three days in the witness box, at the Grantham inquiry, answering questions about his report.  And if nothing else, the questioning has clearly established the danger of building levee banks beside a quarry pit.”
  • “Remember, Queensland’s Water Resources Commission, gave permission for the construction of the quarry in 1989, on the condition that quote over-burden was quote not stockpiled so as to form a levee bank.  It was stockpiled.  That was illegal.  Unarguable.”
  • “Many believe that’s exactly what was happening during the construction of the Wagner quarry.”
  1. [429]
    As to imputation (b), Mr Jones’ tone and delivery creates the clear impression that Dr Macintosh’s evidence is not to be accepted.  Mr Jones suggests that Dr Macintosh’s report “didn’t pass the sanity test”.  He expresses with convincing disbelief that the report “[c]leared the Wagner quarry of all responsibility for creating or exacerbating the devastating four to six metre surge, which killed 12 people”.  In spite of Dr Macintosh’s finding, Mr Jones emphasises the following words: “But the fact is that Grantham had floods like this in the past – no one’s ever died”.  He then refers to a concession by Dr Macintosh that the quarry embankments were responsible for raising Lockyer Creek water levels 20 centimetres for at least two kilometres.  Mr Jones concludes the broadcast by stating: “Which makes me wonder how you reach the conclusion in the first place that it was the railway line not the levee bank.  The inquiry continues.”  I accept the plaintiffs’ submission that by asserting that Dr Macintosh is wrong and otherwise wholly discounting his thesis, Mr Jones is in fact saying, and would have been understood by the ordinary reasonable listener to be saying, that the Wagner quarry did create or exacerbate the four to six metre surge which killed 12 people.
  2. [430]
    I find that the Thirty-Fourth Matter is of and concerning each of the plaintiffs and conveyed imputations (a) and (b).
  3. [431]
    2GB and Mr Jones admit that, if conveyed, both imputations are defamatory of each of the plaintiffs.

Conclusion – Imputations Conveyed

  1. [432]
    Of the 32 matters complained of, I have determined 76 of the pleaded imputations are conveyed.[212]
  2. [433]
    I have determined that a further four imputations not substantially different from the plaintiffs’ pleaded meanings were also conveyed.[213]  In total, 80 imputations are conveyed. Attachment 35 to these Reasons is a list of the imputations conveyed by the relevant matters complained of. 
  3. [434]
    As to the Eleventh Matter, imputation (c) is conveyed only by 2GB and Mr Jones, and in the result the plaintiffs’ claim against Mr Cater is dismissed.[214]
  4. [435]
    Of the imputations that I have determined arise, the defendants do not seek to defend the following imputations:
  •               In respect of the Fifth Matter, that each of the first, second, third and fourth plaintiffs:
  1. (a)
    knowing that his culpability for the deaths of people in the Grantham flood disaster had been covered up, tried to persuade the Premier that allegations about a cover-up were a conspiracy theory; and
  1. (b)
    knowing that his culpability for the deaths of people in the Grantham flood disaster had been covered up, persuaded the Premier that she should put her own self-interest ahead of assisting the truth to come out, and refuse to appear before a Senate inquiry into the disaster.[215]
  • In respect of the Sixth Matter, that each of the first, second, third and fourth plaintiffs was a corrupt businessman in that he was able to build an airport in breach of all laws by reason of his connections with the Premier, Campbell Newman, and other officials in local government and state government.[216]
  • In respect of the Fifteenth Matter, that each of the first, second, third and fourth plaintiffs conspired with the Deputy Prime Minister, Warren Truss, and a prominent member of the government, Barnaby Joyce, to cover up his culpability for the deaths of people in the Grantham flood disaster.[217]
  • In respect of the Sixteenth Matter, that the second plaintiff conspired with the Deputy Prime Minister of Australia, Warren Truss, and a prominent member of the government, Barnaby Joyce, to cover up his culpability for the deaths of people in the Grantham flood disaster.[218]
  • In respect of the Seventeenth Matter, that each of the first, second, third and fourth plaintiffs:
  1. (a)
    in concert with the Bligh and Newman Governments and police, criminally conspired over a period of four years in a disgraceful and massive cover-up of the cause of the horrific and terrifying Grantham flood; and
  2. (b)
    terrorised and vilified two ordinary people, Heather Brown and David Pascoe, forcing them to change address and live in fear, because they threatened to expose the truth about his involvement in the horrific flooding of the town of Grantham and the deaths of a number of people, including a baby.[219]
  • In respect of the Twenty-First Matter, that each of the first, second, third and fourth plaintiffs:
  1. (a)
    conspired with Barnaby Joyce and Warren Truss, the National Party leader, to cover up his culpability for the deaths of people in the Grantham flood disaster;
  2. (b)
    conspired with Warren Truss, the National Party leader, Ian Macfarlane, the Energy Minister, and a prominent member of the government, Barnaby Joyce, to cooperate in protecting each other from exposure of their misappropriation of federal money and illegal deals; and
  3. (c)
    illegally obtained a national asset, the airspace over Oakey Military Base, for use at his private airport.[220]  
  • In respect of the Twenty-Sixth Matter, that the second plaintiff conspired with Warren Truss, the Deputy Prime Minister of Australia, and other federal ministers, that they would cooperate together to cover up his culpability for the deaths of people in the Grantham flood disaster.[221]
  1. [436]
    As damage to reputation is presumed,[222] Senior Counsel for the defendants properly concedes that there must be an award of damages in the plaintiffs’ favour, as these imputations are not sought to be defended.  As is evident from the listed imputations in this category, they are very serious and warrant in themselves a substantial award of damages.

Defence of substantial truth or justification – section 25 of the Act

  1. [437]
    The parties, for the purposes of addressing the truth defence, have classified the imputations with the same sting into five categories:

Category 1: the plaintiffs bore some responsibility for the flooding that caused the deaths of residents in Grantham because the levee bank constructed at their quarry collapsed, sending a surge of water into Grantham;

Category 2: the plaintiffs engaged in conduct designed to cover up the role played by them (and the quarry) in the flood event;

Category 3: the plaintiffs were involved in bullying and intimidation;

Category 4: the plaintiffs constructed and operated the Wellcamp Airport in breach of all the rules;

Category 5: the plaintiffs are self-interested and greedy.

  1. [438]
    It is convenient to deal with the truth defence by reference to these five categories.
  2. [439]
    Section 25 of the Act provides that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.  The term “substantially true” is defined, pursuant to s 4, in Schedule 5 of the Act to mean true in substance or not materially different from the truth.  At common law the defence depends upon the substantial truth of the defamatory meaning conveyed by a libel. 
  3. [440]
    To succeed in a plea of truth, the defendant must prove that the imputations are true in substance or not materially different from the truth.  What must be proved to be true is every material part of the imputation relied upon by the plaintiffs; errors in detail are tolerated.[223]
  4. [441]
    It is for the defendants to prove that the defamatory imputations conveyed by the matter complained of are substantially true. 

Category 1 – the plaintiffs’ responsibility for the role played by the quarry in the Grantham Flood event

  1. [442]
    In accordance with my determination as to which imputations were conveyed, the relevant imputations which fall within Category 1 which the defendants seek to justify are: 18(a), 31(a), 34(a), 37(a), 37(b), 37(d), 40(b), 40(d), 43(c), 43(d), 52(a), 68, 80(b), 86(b), 91(c), 95B(a), 105(a), 108(a), 111(a) and 111(b).
  2. [443]
    The defendants plead that these imputations are substantially true for the following reasons, in accordance with the true facts set out in Attachment A to the defence:
  1. (1)
    the plaintiffs caused the loss of lives in Grantham because:
  1. (a)
    they constructed the levee without approval and in breach of the 1981 planning approval, during their ownership and operation of the quarry (through Wagner Investments Pty Ltd);
  2. (b)
    the levee collapsed during the course of the flood event that occurred on 10 January 2011, leading to a significant surge in the downstream floodwaters, and, in consequence, the loss of lives in Grantham;
  3. (c)
    had the levee not been constructed, there would not have been the surge in the floodwaters that resulted in the loss of lives.[224]
  1. [444]
    Paragraph 1 of Attachment A to the defence pleads the true facts relevant to the defendants’ allegations that the plaintiffs were responsible for a surge of floodwater that killed 12 people in Grantham.  These true facts outline the plaintiffs’ ownership and operation of the Grantham quarry and the creation of a levee.  The crucial true fact pleaded is paragraph 1(h):

“[D]uring the course of the major rain event that occurred on 10 January 2011 floodwater moving downstream in Lockyer Creek that had breached the natural bank of the creek at the point where it forms a horseshoe around the Quarry, was restricted by the levee from flowing around, into or through the Quarry and was backed up behind the levee until such time as, owing to its inability to withstand the weight and force of the water so built up, at or about 4.00 pm, the levee suffered rapid breach in around two to four places along its length, releasing a torrent of water downstream towards the township of Grantham, causing a surge in the height (of between approximately one and two metres), mass and velocity of the existing floodwaters, resulting in the rapid destruction or inundation of objects in its path that would not have occurred but for the existence of and then breach of the levee, and in consequence the deaths of 12 people who were trapped in, or washed from homes or vehicles or were otherwise caught in the path of the surge or during their attempts to escape from it.”

  1. [445]
    The plaintiffs deny that the collapse or breach of the levee (which I will refer to as the bund)[225] caused a surge in floodwaters, and in consequence the loss of lives.  This is primarily because the water that engulfed the town of Grantham on 10 January 2011 would have occurred regardless of the existence of the quarry or the bund by reason of the sheer magnitude of the water which fell on that day.[226]  The plaintiffs further deny that the bund was constructed without approval and in breach of the 1981 planning approval.  Based on their primary position, however, the plaintiffs submit that whether the bund was built with or without approval is irrelevant.[227]  I accept this submission.  The defendants, in seeking to justify the Category 1 imputations, must establish the substantial truth of the crucial true facts set out in [444] above.
  2. [446]
    The defendants seek to establish the substantial truth of the allegation that the plaintiffs bore some responsibility for the deaths of 12 people at Grantham on 10 January 2011 by the evidence of three experts and a number of eyewitnesses.  The expert witness called by the plaintiffs is Dr Newton (a hydrologist).
  3. [447]
    It is trite, but worth stating, that in light of there having been two commissions of inquiry concerning the Grantham Flood event, the substantial truth of the Category 1 imputations can only be determined by a consideration of the evidence before this Court.  The findings of the Queensland Floods Inquiry and the Grantham Floods Inquiry are irrelevant in determining whether the defendants have proved that the Category 1 imputations are substantially true. The findings of these two Inquiries do not inform my consideration of the expert and eyewitness evidence presented at trial.

The expert evidence

  1. [448]
    The defendants called three experts:
  • Dr Graeme Smart, who has qualifications in both engineering and hydrology;
  • Dr Jerry Maroulis, a fluvial geomorphologist; and
  • Mr Gerard Dam, a numerical modeller and civil engineer.
  1. [449]
    Dr Smart and Dr Maroulis contributed to a joint report with Dr Newton.[228]  Dr Newton also produced a separate hydrology expert report dated 16 March 2018.[229]  Neither Dr Smart nor Dr Maroulis produced individual reports.
  2. [450]
    Mr Dam has authored three reports in which he modelled certain scenarios.  Mr Dam’s results are referred to and relied on by Dr Smart in the Joint Expert Report.  The plaintiffs object to the tender of Mr Dam’s three reports primarily on the basis that as an expert he has failed to comply with the requirements of rule 428 of the Uniform Civil Procedure Rules 1999 (Qld).  This rule outlines the requirements for an expert’s report.  As Mr Dam was to give his evidence by video link from Norway, and so as not to delay the trial, the parties agreed that the question of the admissibility of Mr Dam’s reports would be addressed in final submissions.  Mr Dam’s three reports were therefore marked for identification only.[230]
  3. [451]
    All four experts gave oral evidence. 
  4. [452]
    The parties could not initially agree about the issues to which expert opinion was to be directed.  This necessitated a written judgment from Applegarth J, resulting in a direction that the parties were to confer to better formulate the issues to which expert opinion was to be directed and the assumptions upon which the expert opinion was to be based.[231]
  5. [453]
    On 2 November 2017, an order was made requiring the hydrology experts engaged by the parties to deliver a joint report, identifying areas of agreement and disagreement and setting out in detail the reasons for any disagreement.  The two primary issues addressed by the experts are:
  1. (1)
    whether breaching of the natural embankment and/or any man-made bund at the Grantham quarry caused a surge in the floodwaters between the quarry and Grantham, of sufficient nature and effect to lead to the rapid destruction or inundation of buildings and vehicles – events which resulted in the deaths of 12 people;
  2. (2)
    what scenario(s) most likely would have eventuated at around and shortly following 4.00 pm on 10 January 2011 had:
  1. (a)
    to the extent you find the breaching to have occurred, that breaching did not occur;
  2. (b)
    to the extent you find the existence of a man-made bund, that bund had not existed; and
  3. (c)
    to the extent you find the existence of a natural embankment, that embankment had not existed.[232]
  1. [454]
    The experts were instructed to specify the factual assumptions or matters of fact upon which their opinions were based. 
  2. [455]
    As to the first and primary issue, Dr Smart and Dr Maroulis disagree with Dr Newton.  Their opinion is that the breaching of the bund at the Grantham quarry caused a surge in floodwaters between the quarry and Grantham causing the deaths of 12 people.  In arriving at this opinion, none of the defendants’ experts sought to create a calibrated flood model of the Grantham Flood event.  Dr Smart and Dr Maroulis opine that the “evidence for a severe surge is found in the eye-witness and victim reports, flood signs in the aftermath, damage to buildings and infrastructure, video footage and computer modelling”.[233]  The reference to computer modelling is to the numerical modelling undertaken by Mr Dam, who did not purport to model the actual flood event.
  3. [456]
    Mr Dam’s numerical modelling stands in stark contrast to the modelling undertaken by Dr Newton.  Dr Newton developed a two dimensional flood model of the Grantham Flood event which was calibrated to available flood data.[234]  Dr Newton’s opinion is that the breaching of the bund did not cause a surge in floodwaters between the quarry and Grantham sufficient to have any material effect on damage to property or risk to persons.[235]  According to Dr Newton, the tragic events in Grantham on 10 January 2011 were inevitable based on the magnitude of the flood event in Lockyer Creek:[236]

“Grantham was affected by an exceptionally large and fast-rising flood.  The effects of this extreme flood were similar upstream of the quarry, where the quarry could not have had any impact.  Property damage and eyewitness descriptions at upstream locations were similar to those of Grantham residents.”[237]

(a)   Dr Smart

  1. [457]
    Dr Smart is a hydrologist who undertook his doctorate in hydrology.  He has considerable experience in post-disaster surveys and hydrodynamics.  His expertise is in flood hazards and the aftermath of cyclones and weather bombs.[238]  He also has experience in modelling.  Dr Smart was on the ground in Grantham within a few weeks of the flood event with a group of investigators from Geoscience Australia.  He surveyed areas of destruction and saw first-hand the damage that had occurred, before the public had been allowed to return.  At the time of this first inspection he was not aware of the existence of the quarry.  His initial reaction to the damage he observed at Grantham was “what on earth has hit these buildings”.[239]  Dr Smart was perplexed by the severe damage in the middle of an open floodplain.[240]  The damage which Dr Smart observed was, in his view, similar to the tsunami damage he had inspected in American Samoa in 2009.
  2. [458]
    In the Joint Expert Report Dr Smart commences his analysis with a general explanation of the typical characteristics of a surge and the main hazards associated with surges.  For a typical surge (such as a tsunami) the water level starts rising, then rises very rapidly, then the rate of rise tails off as the peak depth is reached.[241]  A surge is to be distinguished from the natural rise and fall of a flood peak.  A flood peak travels downstream at a different rate from water velocity.  Its speed can be calculated by comparing hydrographs at different locations down a flood course.  One of the hazards of a surge is the rapid rate of rise in water depth when the surge arrives.[242]  Dr Smart identifies this as an important consideration because the velocity of surge waves is not shown by the water velocity indicated in the numerical simulation model results for Grantham.[243] 
  3. [459]
    Although Dr Smart has the necessary expertise to model the Grantham Flood event, he has not attempted to do so.  He does, however, criticise the modelling undertaken by Dr Newton.[244]  The basis of this criticism is that the results of the modelling undertaken by Dr Newton will differ from reality depending on the inputs, which may reflect a bias to achieve a desired output.[245]  According to Dr Smart, implicit in numerical flood model results are assumptions related to the type of model, the way the model solves its equations, the resolution (or grid size) of the model, the model boundary inflows, outflows and levels, the treatment of roughness in the model code, the mapping of roughness over the model domain, changes in roughness during the passage of a flood, representation of topography in the model, changes in topography during the passage of a flood, calibration of the model, and finally the way in which model results are reported and interpreted.[246]  Such bias includes how a model is calibrated:

“Calibration entails ‘twiddling knobs’ to achieve a desired output, i.e. the model parameters are adjusted so that the model results match measured results.  Following calibration, a model should either be verified with data that were not used in the calibration or subject to sensitivity analysis that identifies the resulting effects of potential errors in the calibration data.  The main calibration parameter, called ‘roughness’, represents resistance to flow.  Dense vegetation has high roughness, sealed roads have low roughness.”[247]

  1. [460]
    The numerical modelling by Mr Dam is relied on by Dr Smart for a very limited purpose, which he explains as follows:

“As part of this investigation I requested external numerical modelling from Dam Engineering in Norway to investigate the processes and flows which could have occurred in Grantham on January 10, 2011 … These new simulations are to show what modelling will predict when different assumptions are made from those made by Dr Newton.  Unlike Dr Newton’s model, the new model is not ‘calibrated’ to exactly match measurements at locations of post-flood water marks.  This is to prevent any bias of results from a manual fitting process to achieve a desired result.  Instead, Dam Engineering investigated three scenarios:

  1. uniform low roughness everywhere (typically used for modelling tsunami propagation);
  1. distributed roughness (conventional friction based on ground cover classification); and
  1. distributed roughness with partial blockage of the Lockyer Creek bend around the quarry.”[248]
  1. [461]
    Dr Smart identifies the flood size and the flood rate of rise as important factors in addressing the first issue as to whether the breach of the bund caused a devastating surge.  According to Dr Smart, establishing the size of the Grantham Flood event is very important because “[t]he larger the flood the more severe the expected effects.  If the losses in Grantham were caused by a combination of flood size and effects of bund breaching at the quarry, overestimation of the flood size will lead to effects of quarry bund breaching being underestimated.”[249]
  2. [462]
    The Queensland Department of Natural Resources and Mines (DNRM) rating by reference to the Helidon gauging station indicates that at the peak, the flow of the flood was 3,640m3/s with a velocity of 4.1m/s.  This was adjusted by Dr Newton for reasons which I outline below to 4,300m3/s and remodelled to produce a new Helidon inflow peak of 4,600m3/s.  Dr Smart criticises this adjustment: “… this type of calibration will be incorrect if the observed Grantham peak water levels were caused by transitory surges that were not reproduced in Dr Newton’s model or if the model dynamic water levels were compared with static water level measurements”.[250]
  3. [463]
    ,As to the flood rate of rise factor, Dr Smart opines that this factor has been neglected in the Grantham investigations to date.[251]  By reference to contemporaneous photographs of the flood rise at a shed on Ray Hauser’s property on Lockyer Creek Road and further photographs at Kapernicks Bridge (both of which are upstream of the quarry), Dr Smart opines that no significant surges are evident in these photographs.[252]  This is to be contrasted, according to Dr Smart, with the rates of rise downstream of the quarry.
  4. [464]
    It is evident from a discussion of Dr Smart’s evidence to this point, that neither his explanation concerning the nature and hazards of surges, nor his criticisms of the modelling undertaken by Dr Newton, establish that the breach of the bund caused a surge of floodwaters that resulted in the deaths of 12 people.  In the absence of any attempt to actually model the Grantham Flood event, Dr Smart seeks to establish this crucial causal link from a combination of his own experience from inspecting and investigating the aftermath of flood disasters and tsunami damage[253] together with accounts from eyewitnesses and photographic and video evidence.[254]
  5. [465]
    Dr Smart, in concluding that a surge from the breach of the bund caused the deaths of 12 people, relies on the following matters:
  1. (a)
    the 12 Grantham flood victims died along a 1.4 kilometre swath between Gatton Helidon Road and the railway line;
  2. (b)
    when he visited Grantham in 2011 after the flood he could find no clear explanation for the severe structural damage he observed, particularly inside houses;
  3. (c)
    on 9-10 April 2016 he again visited the location and studied the creek from Helidon to Grantham both on the ground and by helicopter.  This included an inspection of “the quarry and the bunds”;[255]
  4. (d)
    in February 2017 and January 2018 he again made site visits and talked to residents including Jonathan Sippel, Sean Gillespie, Tom Friend, Patrick John Gallagher and Daniel McGuire, four of whom were called as witnesses in this trial;
  5. (e)
    on 31 January 2011 Dr Smart took photographs of the railway line on the north side of Grantham.  By reference to the bending of the railway line and the distance that gravel ballast of the railway had been carried north by the overflowing water, Dr Smart opines that this damage ‘resembles what is seen in a tsunami aftermath, rather than what is seen when a flood levee is overtopped’.[256]  At the time of his visit in 2011 Dr Smart concluded that the railway embankment had been hit by a surge;
  6. (f)
    he states that if a surge hit the railway line (which may be considered as a flood levee) it would have been partly reflected.  He refers to the descriptions of Lisa Spierling and Daniel McGuire of what they observed on 10 January 2011.  Both were called as witnesses at trial and I discuss their evidence below under the heading “The eyewitnesses”.  In Dr Smart’s opinion these “lay-person’s reports give a very good description of what happens when a surge is reflected by a break water”;[257]
  7. (g)
    he refers to eyewitness descriptions of “a big wall of water”, “wall of water”, “inland tsunami”, “rolling wave” or “surge(s)”.  The description of “a big wall of water” is sourced to Frances Arndt who also gave evidence at trial;
  8. (h)
    he refers to the Coroner’s report in relation to Bruce Marshall who tragically lost his life in the Grantham Flood event.  The length of the phone calls made by Mr Marshall give some indication of how quickly water was rising in Mr Marshall’s house.  Dr Smart’s deduction is that “the surge rose 2.25m from ground level to 120.81 mAHD in under 4 minutes”;[258]
  9. (i)
    he also relies on photographs he took in January 2011 of the internal damage to houses, including to walls and doors, which he asserts constitutes evidence of a surge;
  10. (j)
    he relies on a photograph of a house at 20 Harris Street, Grantham which he took in January 2011.  Based on this photograph he makes the following finding: “I was interested in the straw caught on the vertical boarding under the house.  The densely accumulated debris layer at the bottom of Figure GS-11 indicates a relatively slowly rising or falling flow with depth reaching 1.1m.  As the water level slowly changed, floating straw lodged on the boarding at the level of the water surface.  Slow rate of change is shown by the uniform density of the straw over the entire debris layer on the left (downstream) side of the boarding on Figure GS-11.  Low head loss indicates a lower velocity.  The bottom layer has a low head loss.  On top of the lower layer is a concentrated line of debris with high head loss produced by a fast rising, high velocity flow.  The rate of rise here was very fast because little floating straw had time to catch on the boards except at peak depth.  This indicates a surge, either at 1.8m deep above the ground or superposed 0.7m on pre-existing flood water.  Either way, such a surge would cause significant damage to objects in its path”;[259]
  11. (k)
    he also relies on the damage done to a house at 84 Railway Street.  The internal wall burst when water rose rapidly on one side of the wall before it could rise on the other side.[260]
  1. [466]
    According to Dr Smart, adding surge velocity to the flood velocity would create a wave speed consistent with the observations of eyewitnesses and his own observations of severe structural damage.  He concludes:

“In light of the physical evidence and eye witness interviews, I have concluded that rapid surges and waves did occur in Grantham and compounded the severity of the losses.”[261]

  1. [467]
    Dr Smart further explains his conclusions as follows:

“… floodwaters filled the quarry pit to above its spill level prior to the breach.  Following the bund collapse [Dam Engineering] modelling shows a discharge of up to 4500 tons of water per second (assuming simultaneous breaching) was released into the quarry pit … The surge front crossed existing floodwater in the quarry pit in under half a minute.

Sequential bund failure or surge reflection and refraction within the pit may have caused multiple surges across the pit.

The surge(s) exited the quarry pit into the Lockyer Creek at the southern end of the pit and crossed over Lockyer Creek water on the East side of the quarry.  This surge direction was focussed by low sections in eastern quarry embankments and the surge perpendicularly crossed existing floodwater in the creek. 

The surge(s) travelled down Lockyer Creek and down the floodplain to Grantham.”[262]

  1. [468]
    In the course of Dr Smart giving oral evidence, I formed the view that his conclusions were not supported by his analysis of the matters upon which he relied.  These matters do not, in my view, establish that there was a surge.  Even if some of the matters identified by Dr Smart are generally supportive of there having been a surge, his analysis of these matters falls well short of establishing the crucial causal link that the surge emanated from the quarry when the bund collapsed.  This is in circumstances where the 2011 Lockyer Creek flooding was an exceptional event.  As explained by Dr Newton:

“A comparison of the historical event hydrographs show that the January 2011 flood was an exceptional event.  The peak flood level at Helidon was about 5 metres higher than any other historical flood since 1974 and the rate of rise was at least four times faster.”[263]

  1. [469]
    In the absence of any actual modelling of the Grantham Flood event, in order to support his ultimate conclusion it was incumbent upon Dr Smart not only to identify reliable evidence of a surge but a surge which emanated from the quarry.  He has failed to do so. 
  2. [470]
    This failure on Dr Smart’s part is best illustrated by reference to a video produced by him entitled “Explanation of Surges” which is Attachment 11 to the Joint Expert Report.[264]  At approximately three minutes 58 seconds into the video there is a section entitled “spent surge caught on camera in Grantham”.  This video is part of a longer video taken by one eyewitness, Lance Richardson.  The whole of Mr Richardson’s video is part of Exhibit 14, which is a USB of interactive photographs and videos.  The item is 13.3-6 and the relevant video of Mr Richardson commences at 4.14 pm. 
  3. [471]
    Dr Smart’s video “Explanation of Surges” is not a representation of Grantham but rather a representation of the phenomenon of surges.[265]  The video, for example, contains footage of a tsunami surge in Japan.  In his evidence-in-chief Dr Smart stated:

“And we can see then some evidence of this type of wave in film in Grantham in a minute.  So this footage was now taken by Lance Richardson from near the Grantham Hotel.  … And now I have slowed that down and taken stills from the video footage which shows these types of waves indicative of a surge pointed to by the arrows, and you’ll notice the waves are on both sides going right across the image. … This isn’t a gradually rising flood that you would see in typical flooding situations where a river spills out of its channel and gradually rises across the floodplains.  This is a surge phenomenon. Surge behaviour, and here again, we can see the crests of those wave[s], just like we saw in the channel in Japan.”[266]

  1. [472]
    The video shows floodwaters hitting a shipping container.  The video shows three red arrows which, according to Dr Smart, identify three waves.  In cross-examination Dr Smart accepted that when he first looked at Mr Richardson’s video, it simply showed what happens when a surge of water hits a solid object such as a shipping container:

“MR BLACKBURN: That’s just a bow wave; isn’t it.  It’s what happens when a surge of water hits against a solid object.  You get a – we’ve all seen that.  You get a wave – don’t you – coming up, where it hits?

DR SMART: That’s what I first thought when I looked at this picture, and when I looked at it more closely, I realised that that wave that you are showing which has a small white crest where it’s breaking against the container … That wave extends right to the left of the container and is still a wave, where it is not being influenced by the container, as are the upstream waves which are nowhere near the container.”[267]

  1. [473]
    The tenuous nature of Dr Smart’s evidence in this respect is demonstrated by his acceptance that one of the red arrows, to an untrained eye, does not point to any wave at all.[268]
  2. [474]
    In viewing the video, I have great difficulty identifying the three waves which, according to Dr Smart, are “representative of surge of which a tsunami is an example”.[269]  Ultimately in cross-examination, Dr Smart’s position was that the video showed evidence of a surge but not evidence of where that surge came from.[270]  I do not accept that this video and the three waves identified by Dr Smart constitute evidence of a surge at all.  When Mr Richardson’s video is watched in full, it is apparent that if there was a surge it had to go past the Grantham Hotel.  The hotel is shown in the video.  Dr Smart accepted, however, that the hotel, as depicted in the video, showed no evidence of a destructive surge having passed it.[271]
  3. [475]
    Dr Smart’s video “Explanation of Surges” is of no assistance to the Court.  I do not accept that the extract from Mr Richardson’s video reproduced in Dr Smart’s video constitutes reliable evidence of the existence of a surge, let alone one which emanated from the quarry.
  4. [476]
    Reluctantly, I am of the view that Dr Smart, in relying on this matter and other matters which I deal with below, adopted the role of being an advocate for the defendants.  There were a number of videos taken by eyewitnesses which were tendered into evidence.  These include videos taken by Anthony McIntosh, Francis King, Ian Pinkerton, Lance Richardson, Martin Warburton, and Luke Owens, as well as helicopter video footage taken by Channel 9 and Channel 10.  Apart from the last section of Mr Richardson’s 4.14 pm video, Dr Smart does not rely on any other video evidence as demonstrating a surge.[272]
  5. [477]
    Dr Smart acknowledged that there were eyewitnesses who did not report any observation of a “wall of water” or a “wave” or a “tsunami”.[273]  He sought to explain this by suggesting these witnesses would either have been on the “periphery of the surge”[274] or the surge at that time was not “a breaking wave”.[275]  This is nothing but supposition on Dr Smart’s part seeking to explain evidence which does not support the existence of a surge.
  6. [478]
    Dr Smart accepted that people lost their lives upstream of the quarry at Postman’s Ridge, Spring Bluff and Murphy’s Creek.[276]  He also accepted that in his investigations he was aware of eyewitnesses upstream of the quarry describing waves of water and houses being washed away in moments.[277]  None of these properties would have been affected by the quarry.  Dr Smart’s explanation for the deaths and property damage upstream of the quarry being in a different category to what occurred in Grantham is that Grantham is situated in a wider floodplain with less steep topography.[278]  It became clear in the course of cross-examination, however, that in making this assertion Dr Smart had not done any hydrological calculations:

“MR BLACKBURN: Before you made that statement, where is your – you didn’t investigate the hydraulic conditions of any of those upstream properties, did you?

DR SMART: Not in fine detail, but I have a very good understanding of hydraulic principles and how the slope and the gradient increase the shear stress and the drag forces and the velocities.

MR BLACKBURN: Did you estimate the flowrate of water going past those properties?

DR SMART: I did not.

MR BLACKBURN: Does that appear in the JER?

DR SMART: No.

MR BLACKBURN: Did you measure the floodplain width where those properties were?

DR SMART: I looked at the channels.  I didn’t scale off.

MR BLACKBURN: Did you do any hydrological calculations at all?

DR SMART: No I didn’t.  No, I didn’t.”[279]

  1. [479]
    Another matter relied on by Dr Smart to support the existence of a surge are the logged phone calls made by Mr Bruce Marshall from 1420 Gatton Helidon Road.  Mr Marshall perished in the Grantham Flood event.  Dr Smart in the Joint Expert Report states:

“At 4:11 pm a phone call indicates that the flood waters were waist deep in the house (at 120.36m AHD).  At 4:12:50 Mr Marshall again reported the water was up to his waist and he had about three feet to the roof.  For Mr Marshall’s eyes to be 3’ (0.91m) from the ceiling Mr Marshall must have stood on his 0.45m high bed.  His waist-high water level would have been at 120.81m AHD.  The surveyed high-water mark in his house was 120.83m AHD.  At 4:18 pm he again called 000 and said the water was up to his shoulders.  At this time, either the water level rose above the surveyed flood level or Mr Marshall was back standing on the floor.  The indicated rates of rise are 0.7m from 4:09 pm to just before 4:10 pm, then 1.1m until 4:11 pm and 0.45m from 4:11 pm to 4:12:50.  The surge rose 2.25m from ground level to 120.81 mAHD in under 4 minutes.  The maximum rate of rise was over 1m per minute inside the house and would have been considerably faster on the outside of the house depending on the degree to which the house was ‘watertight’.”[280]

  1. [480]
    In cross-examination Dr Smart accepted that he had assumed the height of the bedroom at 3.05 metres based on what he had been told by Mr Marshall’s son.[281]  Dr Smart’s assumption that Mr Marshall at one stage climbed onto his bed and then off his bed is not based on anything said by Mr Marshall in the course of the 000 calls.  These actions on the part of Mr Marshall are simply an assumption made by Dr Smart.  Dr Newton in the Joint Expert Report does not accept that there was a rate of flood level rise of 1.0m or more per minute at the location of Mr Marshall’s house.  Dr Newton estimates that the increase in water level from waist to shoulder height (approximately 0.5m) between 4:12:50 and 4:18:48 pm (approximately six minutes) indicates a rate of rise of less than 0.1m per minute.[282]  While Dr Smart does not accept Dr Newton’s analysis, he did concede in cross-examination that he no longer relied on the passage from [167] of the Joint Expert Report which I have quoted above.[283]  Dr Smart therefore abandoned any reliance on the assumptions he had made as to Mr Marshall being on and off his bed.  The evidence in relation to this matter is so equivocal that it cannot be relied on as evidence of a surge, let alone a surge emanating from the quarry.
  2. [481]
    Dr Smart in the Joint Expert Report also refers to the 000 phone logs for Helen and Graham Besley.[284]  Dr Smart states:

“According to 000 phone logs, at 3.59 pm a ‘wave of water’ overtopped Helen and Graham Besley’s Ford Fairlane car which was near the quarry access road, just across the creek on the East side of the quarry, and they escaped out the car windows.  The technical term for what they experienced is a surge.  As explained in section A.1 para 82, a surge would cross the quarry pit in less than half a minute.  This suggests that a bund collapse occurred around 3.58 3.59 pm.”

  1. [482]
    The relevant phone log and transcript of the call made by the Besleys contain no reference to the Besleys being hit by a “wave of water”.[285]  The 000 call commences at 15:46:27 and contact is lost 12 minutes and 40 seconds later.  In cross-examination Dr Smart accepted that there was nothing in the phone logs that at 3.59 pm a wave of water overtopped the Besleys’ Ford Fairlane and they escaped out the car windows.  He accepted that the Besleys had escaped out of the car windows well before 3.59 pm.[286]  Dr Smart accepted that he was in error in suggesting that the Besleys had escaped their car through the windows after 3.59 pm.
  2. [483]
    The log of the 000 call by the Besleys does not, in my view, support Dr Smart’s opinion that this is evidence of a surge.  To the contrary, as stated by Dr Newton:

“This telephone call, which lasted more than 12 minutes, indicates a progressive rise in water level from ‘up to the doors’ to the car being ‘completely under’ (a rise of perhaps 1m) in about 12 minutes.”[287]

  1. [484]
    Having been confronted with this error in cross-examination Dr Smart resorted to suggesting that his reference to a “wave of water” was based on additional information from the witness statements given by Mr and Mrs Besley.  There are two difficulties with Dr Smart relying on these statements.  The first is that at [368] of the Joint Expert Report, Dr Smart only makes reference to the 000 phone logs and not to any statements made by the Besleys as to there being a “wave of water”.  In explaining why he has not referred to all relevant witness statements in the Joint Expert Report, Dr Smart stated:

“DR SMART: … There’s so many consistent reports from the eyewitnesses that – they can’t all be wrong.  It can’t be a grand conspiracy to use different terminology and different phraseology to describe surge behaviour.

MR ANDERSON: But is that information – so when we talk about many witnesses – are you limiting your view to one that’s informed by on that information referred to in the joint expert report?

DR SMART: It’s the big picture of all the witnesses, each contributing.  Certain witnesses give more valid information, but it all – like I said, they’re pieces of the jigsaw.  They – taken cumulatively, it’s very convincing evidence to me.

MR ANDERSON: … to the extent that you’ve relied on any of those witness statements for the purposes of answering the questions that were posed, have you identified in the body of the joint report how and why you rely on those particular statements of those witnesses?

DR SMART: In some cases, I have, in the body of the report.  In other cases, it is self-evident from the statements, as to what they are describing.  I haven’t, in the body of the report, listed the implications of each witness as to what that means, because it’s very clear, I hope, to everyone from the words that they use, that they are describing surge type, rapidly rising floods.”[288]

  1. [485]
    This evidence of Dr Smart is concerning in a number of respects.  First, to the extent he relies on eyewitness statements to inform his opinion, he has not uniformly revealed this in the Joint Expert Report.  Second, to the extent he has relied on eyewitness accounts without identifying this in the Joint Expert Report, the Court cannot ascertain whether the relevant eyewitness has been called to testify at trial.  Third, Dr Smart’s approach, as explained by him in evidence, means that his reasoning in arriving at his opinion has not been exposed.
  2. [486]
    This brings me to the second difficulty in Dr Smart relying on the witness statements of Mr and Mrs Besley.  Neither was called as a witness at trial.  Although their statements are found in the trial bundle,[289] the plaintiffs object to their hearsay statements being admitted.  I uphold this objection.  The result is that to the extent Dr Smart has relied on the hearsay statements of Mr and Mrs Besley to support his opinion as to the existence of a surge, the factual basis for that opinion has not been established.  The result is that his opinion expressed at [368] of the Joint Expert Report is neither admissible nor of any weight.
  3. [487]
    Dr Smart, in seeking to support his surge scenario also relied on the gravel ballast at the railway, as well as internal damage done to walls and doors.  The plaintiffs make what is, in my view, a valid criticism of Dr Smart in relying upon such evidence:

“Drs Smart and Maroulis fail to provide real-world data from documented hydrological surges in other times and places to support their hypothesis that there was a hydrological surge (or surges – it is not clear which) in Grantham because there was a ‘much quicker rise in water depth’.  Nor do they provide real-world data about the rate of rise of flood waters in other times and places (being occasions not involving a hydrological surge and comparable to the flood event in the Lockyer Valley on 10 January 2011) with which to test this hypothesis.”[290]

  1. [488]
    The validity of this criticism is borne out by a consideration of Dr Smart’s reliance on, for example, the collapse of internal walls.  Figure GS-13 is a photograph taken by Dr Smart in 2011 which shows damage to a house on Railway Street, Grantham.[291]  By reference to this photograph Dr Smart states:

“Further evidence of a surge is shown in Figure GS-13.  The damage evident here is unusual in that multiple internal wall elements of the house have failed while external walls remain essentially intact.”[292]

  1. [489]
    In cross-examination Dr Smart accepted that damage to internal walls of a house depends on how strong the internal walls are.[293]  Dr Smart gave the following evidence:

“MR BLACKBURN: And you can’t say, I suggest to you, that the fact that two internal walls have collapsed inside a stud wall house is evidence of a surge?

DR SMART: Many more than two walls collapsed inside the house.

MR BLACKBURN: But it’s not evidence of a surge, is it?

DR SMART: It is.  It is.  When I walked into that house I thought to myself.  ‘What the hell has hit this house?’  It was reminiscent of damage I had seen from tsunamis in the Pacific tsunami postdisaster inspections I did, and I was astounded at the damage inside this house.

MR BLACKBURN: I think you’ve only been involved with one tsunami, haven’t you, and that was the one on the island of Samoa?

DR SMART: I’ve been involved in the Javanese tsunami.  I wasn’t personally there, but my team were there, and I went through photographs that they’d taken. … In the Pacific tsunami, I visited dozens of site where is the tsunami waves impacted different types of infrastructure, different types of topography.

MR BLACKBURN: I think your evidence was that you’ve only actually attended the site of one tsunami?

DR SMART: Yes.  One – yes, that’s correct.”[294]

  1. [490]
    The Court, in assessing Dr Smart’s evidence in this respect, does not have the benefit of any analysis by him of the type of structures that were damaged from the tsunami site which he inspected in American Samoa.  Nor is there any comparative photographic or hydrological evidence which exposes Dr Smart’s reasoning. 
  2. [491]
    Dr Newton does not agree with Dr Smart that a surge from the quarry can be inferred from observations of flood damage:

“The damage in Grantham was extensive, but was consistent with damage at locations upstream of Helidon where the quarry could not have had any effect.  … Extreme structural damage often occurs during a flood.  … Extreme structural damage indicates that flood depth and velocity were large enough to displace structures.  It does not provide evidence of a surge.”[295]

  1. [492]
    Figure DN-3[296] is a photograph which shows damage to internal walls at a property at Murphy’s Creek which is upstream of the quarry.  It is difficult in comparing Figure DN3 with Figure GS-13 to identify any significantly different type of damage.
  2. [493]
    Similar criticisms can be made of Dr Smart’s reliance on the distance that gravel ballast from the railway line had been carried north by the overflowing water.[297]  Dr Smart accepted in cross-examination that the spread of the ballast in the course of a flood would depend on a number of factors, including the velocity of the water, the direction of the flow relative to the railway line, the size and distribution of the ballast and the depth of overtopping.[298]  He also accepted that there can be locally higher velocities where, for example, the flow is constricted by railway sleepers.[299]  The unreliability of this evidence as supporting a surge is highlighted by Dr Newton: “Washing of ballast from railway lines commonly occurs during flood events and does not necessarily indicate a hydraulic surge.”[300]  Figure DN6[301] is a photograph of damage to railway ballast by flooding which was not associated with a surge.
  3. [494]
    I do not accept that the matters identified by Dr Smart constitute reliable evidence of a devastating surge. 
  4. [495]
    Nor does Dr Smart present any cogent analysis that would permit the Court to find that had there been a surge, it was caused by the collapse of the bund wall at the quarry.  In seeking to address this central question Dr Smart’s reasoning is surprisingly brief and unpersuasive.[302]  Dr Smart refers to the Insurance Council of Australia Hydrology Panel study of the January 10, 2011 flooding.  He accepted in cross-examination that this was a “quick and very high-level study … [which] didn’t analyse in any detail the position in Grantham and the quarry”.[303]  Nevertheless, Dr Smart concludes:

“As a severe surge was not detected upstream of the quarry and given the quarry bund collapse mechanism that I later describe in section B.4, I conclude that the severe surge(s) in Grantham resulted from the collapse of the man-made bund at the Grantham quarry.”[304]

  1. [496]
    This constitutes, in my view, an over-simplistic approach by an expert to what is a complex hydrological issue arising, as it does, in the context of a wider severe flood event.  The underlying premise that a severe surge “was not detected upstream” is not supported by contemporaneous evidence showing rapidly rising floodwaters upstream of the quarry.  In particular, a series of photographs taken by Carol Hauser over a 22 minute period from approximately 3.16 pm to 3.38 pm on 10 January 2011 shows the progressive inundation of a green shed and illustrates the rapid rise of floodwater in Lockyer Creek.[305]  Although Dr Smart was critical of Dr Newton’s modelling, he was willing to assume that the model simulated with precision the inundation of the Hausers’ property.[306]
  2. [497]
    As to Dr Smart’s reliance on the “bund failure mechanism” described by him in section B.4, this too is misplaced.  Section B.4 only deals with the process by which the bund breached and the time it took for the breach to occur.  Dr Smart’s analysis in section B.4 does not establish any causal link between the collapse of the bund and the devastation in Grantham.
  3. [498]
    In the absence of a reliable model, I accept the plaintiffs’ submission that the evidence is insufficient to establish any causal link between a devastating surge and the collapse of the bund.[307]

(b)   Dr Maroulis

  1. [499]
    Dr Maroulis is a fluvial geomorphologist.  He studies rivers and the flow of water through nature.  His area includes studies of the deposit of sediment and erosion.[308]
  2. [500]
    Dr Maroulis’ evidence was relatively confined.  From an examination of sediment he was able to determine that ponding of floodwaters had occurred at the western bank of the quarry.  According to Dr Maroulis, the bund at the quarry constrained the passage of the floodwaters, resulting in a large volume of floodwater being ponded upstream of the bund and across the northern floodplain between Kapernick’s Bridge and the bund.  This is demonstrated in Figure JM-01.[309]
  3. [501]
    Dr Maroulis also addressed the timing and the formation of the breaches in the bund.[310]  The rate at which the bund breached was ultimately a matter of agreement between the experts.  Dr Newton, in his flood modelling, for example, proceeded on the assumption that the breaching of the bund along the entire 260 metre length occurred in only five seconds.  While he considered it extremely unlikely that the entire length of the bund could fail in such a short amount of time, this assumption constituted a worse case assessment of potential impacts.[311]
  4. [502]
    In spite of the limited nature of Dr Maroulis’ analysis, he expressed two conclusions in the Joint Expert Report:[312]

“… the breaching of the bank and the resulting surge of water significantly contributed to the flooding and the resulting deaths and property damage in Grantham.  There was a considerable body of water that was backed up behind the bund which was rapidly and violently released, resulting in a surge of water that had a material impact on the town of Grantham on Jan 10, 2011”

“It is my opinion that these floodwaters that were rapidly released through breaches in the quarry bund, represented the final and fatal blow to the township of Grantham.  Grantham residents have previously experienced major floods such as in 1974 and normally result in flooding from both Sandy Creek and Lockyer Creek.  However, the added unanticipated and unexpected impact of the flood surge from the quarry caught everyone by surprise and resulted in the tragedy on January 10, 2011.”

  1. [503]
    Based on his expertise and the limited nature of his analysis, I am unable to understand how Dr Maroulis reached these conclusions.  Nowhere in the Joint Expert Report does Dr Maroulis expose his reasoning which would support these conclusions.  There is, for example, no scientific analysis of water volumes, or velocities or any other exposition showing how a rapid and uniform breach of the bund caused “the final and fatal blow to the township of Grantham”.  I accept the plaintiffs’ submission that Dr Maroulis’ conclusions are outside his discipline of geomorphology.[313]  When questioned, it became evident that Dr Maroulis could not support his conclusions:

“HIS HONOUR:  Doctor, may I ask you this question?

DR MAROULIS: Sure.

HIS HONOUR: Because when I come to write this judgment, I have to have [a] fairly clear idea of this.  You’ve expressed conclusions, both in paragraphs 191 and 243, which are in fairly precise terms as your view that it was a surge that caused what you described as the final and fatal blow to the township of Grantham?

DR MAROULIS: Yes.

HIS HONOUR: Which is fairly graphic language.  You were asked by Mr Blackburn [what] you didn’t do in terms of hydrology and modelling?

DR MAROULIS: Sure.

HIS HONOUR: You’ve taken the Court to page 71 JM18?

DR MAROULIS: Yes.

HIS HONOUR: For the conclusions that you reach in 191 and 243, from the text of your contribution to the joint report … what other parts do you rely on for the purposes of those conclusions expressed in [those] two paragraphs?

DR MAROULIS: As I said, I think it’s the – again, what I was limited to at the time was very much on-the-ground evidence, that it’s almost looking at aerial images, video footage, whatever might be available.  This is, again, an indication of what I could see was taking place, but I didn’t get any additional evidence between this site and Grantham, and for that – I mean, I can make assertions about what was going on there, but I didn’t have enough evidence to go by at the time.”[314]

  1. [504]
    Dr Maroulis’ evidence does not establish any causal link between the collapse of the bund at the quarry and the deaths of 12 people at Grantham.

(c)   Mr Dam

  1. [505]
    Mr Dam produced three reports:
  • First report, entitled “Effect of bund collapse on flooding in Grantham (Queensland, Australia) on the 10th of January 2011”, dated 13 February 2018 (first report);
  • Second report, entitled “Supplementary report: Effect of bund collapse on flooding in Grantham (Queensland, Australia) on the 10th of January 2011”, dated 6 March 2018 (second report); and
  • Third report, entitled “Additional investigation into the initial quarry pit level”, dated 15 May 2018 (third report).
  1. [506]
    The plaintiffs object to these three reports being admitted into evidence.  The plaintiffs’ primary basis for objecting is that the reports do not comply with rule 428 of the UCPR.
  2. [507]
    Rule 428 states the requirements for an expert report:

Requirements for report

  1. (1)
    An expert’s report must be addressed to the court and signed by the expert.
  1. (2)
    The report must include the following information—
  1. (a)
    the expert’s qualifications;
  1. (b)
     all material facts, whether written or oral, on which the report is based;
  1. (c)
    references to any literature or other material relied on by the expert to prepare the report;
  1. (d)
    for any inspection, examination or experiment conducted, initiated, or relied on by the expert to prepare the report—
  1. (i)
    a description of what was done; and
  1. (ii)
    whether the inspection, examination or experiment was done by the expert or under the expert’s supervision; and
  1. (iii)
    the name and qualifications of any other person involved; and
  1. (iv)
    the result;
  1. (e)
    if there is a range of opinion on matters dealt with in the report, a summary of the range of opinion, and the reasons why the expert adopted a particular opinion;
  1. (f)
    a summary of the conclusions reached by the expert;
  1. (g)
    a statement about whether access to any readily ascertainable additional facts would assist the expert in reaching a more reliable conclusion.
  1. (3)
    The expert must confirm, at the end of the report—
  1. (a)
    the factual matters stated in the report are, as far as the expert knows, true; and
  1. (b)
    the expert has made all enquiries considered appropriate; and
  1. (c)
    the opinions stated in the report are genuinely held by the expert; and
  1. (d)
    the report contains reference to all matters the expert considers significant; and
  1. (e)
    the expert understands the expert’s duty to the court and has complied with the duty.”
  1. [508]
    The requirements in rule 428 reflect an expert’s overriding duty to assist the Court as stated in rule 426.  Many of the requirements of rule 428 reflect matters that have been identified in previous cases, such as Makita (Australia) Pty Ltd v Sprowles.[315]  An expert must explain the basis for any opinion expressed by them and explain the reasoning process deployed in arriving at the opinion. 
  2. [509]
    Mr Dam’s first two reports do not comply with the requirements of rule 428(2)(a) or (3) in that the reports do not set out Mr Dam’s qualifications, nor does he confirm at the end of the first two reports those matters required by rule 428(3).  I raised this with Senior Counsel for the defendants at an early stage of the proceedings. 
  3. [510]
    Mr Dam’s non-compliance was sought to be overcome by him confirming the terms of rule 428(3) in relation to all three reports in his third report.[316]  Had this non-compliance with rule 428(3) been the only basis for objection, I would have ruled that the three reports were admissible.
  4. [511]
    As I have previously observed, this case was subject to Court supervision.  On 2 November 2017, five months before the commencement of the trial, orders were made which required the hydrology experts to deliver a joint report.  Mr Dam did not participate in the production of Exhibit 15, the Joint Expert Report.  Mr Dam’s instructions for his reports were provided by Dr Smart.  It is apparent from Appendix B to the first report that Mr Dam was first provided with instructions from Dr Smart on 23 December 2017.  Mr Dam’s third report was not provided to the plaintiffs until 15 May 2018, which was the eleventh day of the trial.  A draft version of this report was provided to the plaintiffs on 10 May 2018, being the eighth day of the trial.  Mr Dam’s third report is only nine pages long and addresses a change to the initial quarry pit level in his model of 109m AHD.  Mr Dam acknowledged that the level he had initially used in his modelling was unlikely and a level of 114m AHD is more appropriate.
  5. [512]
    Any potential prejudice to the plaintiffs by the late delivery of Mr Dam’s third report was sought to be addressed by his evidence being delayed to 30 May 2018.  The plaintiffs had his report in draft form from 10 May 2018.  The plaintiffs do not identify any actual prejudice caused by the late delivery of the third report.  As no actual prejudice is identified by the plaintiffs, I would not rule that the third report is inadmissible on this basis alone.  Further, the defendants rely on rule 429A of the UCPR, which requires the provision of a supplementary report in circumstances where an expert changes in a material way an opinion in a report that has been disclosed.  The third report is, in my view, a supplementary report contemplated by rule 429A.
  6. [513]
    Mr Dam’s three reports are not, however, admissible because they do not comply with rule 428(2)(e) in that they do not expose Mr Dam’s reasons why he has adopted a particular opinion.  His conclusions and opinions are expressed in the first report as follows:

“• Bund failure at a quarry upstream of Grantham on the 10th of January 2011 lead to increased water levels and velocities in Grantham.

  • The drag force of the water on affected objects increased significantly in Grantham due to the bund failure.  Losses would have increased significantly due to the bund failure.
  • The modelling shows that there is a significant increase in the amount of water due to the bund failure that flows into the floodplain leading to Grantham.
  • Among the simulations carried out, a constructing log jam at the northwestern corner of the quarry best explains the observed water levels.
  • The adopted model reproduces the observed water levels well.
  • The DNRM calculated discharge at Helidon is sufficient to reproduce the observed water levels in Grantham and surroundings.
  • The quarry pit rapidly fills with water during the rising flood, even with a low initial pit level.
  • The pit water level surpasses the pit overflow level and the modelling indicates a pit level around 124m at the time bund failure was simulated at 4pm.”[317]
  1. [514]
    These conclusions are made by Mr Dam in circumstances where he does not seek to model the actual Grantham Flood event.  In the introduction to his first report Mr Dam notes that the previous calibrated model investigations did not find a causal relationship between the bund collapse and the severity of the flooding in Grantham.  He then states:

“This investigation uses a different approach to study the bund collapse and its potential effects on flood behaviour.”[318]

  1. [515]
    Using a numerical hydrodynamic model called FINEL2D Mr Dam modelled two simulations, one with bund failure and the other without.  Appendix A to his report simply contains details about the modelling equations and features of this model.
  2. [516]
    The plaintiffs submit that it is completely unclear how Mr Dam’s model has in fact been used to generate his conclusions:

“… it is unknown precisely what inputs have been used by Mr Dam for his simulations.  For example, Mr Dam purports to identify:

  1. (a)
    the level of water at five locations in Grantham (see part 6.2), but he does not explain the basis for those water levels or any inputs he has used to derive them;
  1. (b)
    a discharge into the flood plain (see part 6.3), but he does not identify the inputs which he used to derive this simulation;
  1. (c)
    maximum velocities and drag (see part 6.5), but he simply makes the conclusion, without explanation, that there was an increase in bulk velocity above 0.5m/s in the western part of Grantham and 0.3m/s to 0.5m/s in the eastern part.

The closest Mr Dam seems to come to identifying any real inputs he used during his simulations is at paragraph 6.4 where he identifies that one of his simulations (that with bund failure) is close to surveyed inundation depths at Grantham.  But in the context in which the statement is made, the statement is meaningless.  Indeed, it is impossible to comprehend how Mr Dam has used the information he has been provided with (known and unknown) in arriving at his conclusions.

Not knowing these inputs renders Mr Dam’s work meaningless.  The practical consequence of this is that it is impossible for the Court to be able to arrive at an independent assessment of Mr Dam’s opinions and their value.  It also means that his opinions are unable to be scrutinised.”[319]

  1. [517]
    The defendants submit that there is an inherent difficulty when the opinions arise from a modelling exercise.[320]  The difficulties with the admissibility of Mr Dam’s reports, however, go well beyond this inherent difficulty.
  2. [518]
    One of Mr Dam’s conclusions quoted above is that, among the simulations carried out, a constricting log jam at the north-western corner of the quarry best explains the observed water levels.  Mr Dam, however, at Part 7 of the first report states that many input parameters for the modelling are unknown or uncertain.  This includes the issue of tree constriction:

“Video footage and eyewitness accounts show large tree trunks in the creek that would have extreme difficulty passing the sharp bends of Lockyer Creek around the quarry.  A partial blockage of the flow by trees leads to higher upstream water levels and lower downstream water levels.  How large such an effect is, is very difficult to determine, but for sure had an effect on the water flow around/in the quarry.  None of the previous models to simulate the Grantham flood took this into account … [T]here are not enough data available to know the correct model settings.  Modelling is always a simplification of reality in which the modeller has to decide which processes are relevant. 

Especially because of this incomplete list of model uncertainties it is recommended that model simulation results should be interpreted along with other evidence.”

  1. [519]
    Given these significant qualifications, I can find no reasoning in Mr Dam’s first report as to how he arrives at his conclusion that “a constricting log jam” best explains the observed water levels.  There is, for example, a complete lack of analysis as to why other inputs, such as upstream discharge or roughness, do not explain the water levels.  It is not enough that some model inputs are identified in the second report.  This does not cure the failure on the part of Mr Dam to expose the reasons why he has adopted a particular opinion, as is required by rule 428(2)(e).  Even if Mr Dam’s reports were admissible, having considered those reports and his oral evidence, I would give no weight to the opinions he expresses. 
  2. [520]
    The defendants make little reference either to Mr Dam’s reports or his evidence in their final written submissions.  This may be explained by the fact the defendants expressly do not rely upon Mr Dam to give an opinion about the role of the quarry in the cause of the deaths in Grantham.[321]  This submission is surprising given that one of Mr Dam’s conclusions is that “the drag (the force of the water on an object) increased severely in Grantham due to the bund failure.  This means that losses would have increased significantly due to the bund failure.”[322]  According to the defendants, Mr Dam’s role was to assist Dr Smart by modelling specific scenarios in order to demonstrate the variability and limitations of the modelling process, and to demonstrate the breach and no breach scenarios without the distraction of any calibration.[323]  This suggested limited role of Mr Dam is not reflected in his conclusions.
  3. [521]
    There are a number of reasons why I would ascribe no weight to Mr Dam’s opinions.  First, there is no eyewitness, video or photographic evidence that there was a blockage in Lockyer Creek at the quarry bend created by trees.  According to Mr Dam, the only simulation which was found to sufficiently reproduce the observations of conditions prior to 4.00 pm was Simulation 3, with a blockage in the creek at the quarry bend.  It was Simulation 3 that Mr Dam continued with to model the bund failure investigation.  It was therefore central to his modelling to include a tree blockage in Lockyer Creek.  According to Mr Dam:

“Dr Smart advised that there were very large trees carried by the rising flood just upstream of the quarry and that these trees could be expected to lodge where the creek is confined by the quarry bend.”[324]

  1. [522]
    In evidence-in-chief Dr Smart stated that the postflood helicopter footage indicates the flow around the quarry bend was constricted and not as rapid as one would expect.[325]  He was taken to Figure DN-9 in the Joint Expert Report.[326]  Dr Smart suggested that turbulence in the water surface similar to turbulence observed above the breached bund could be seen by reference to this photograph.  I requested Dr Smart to mark on the photograph the turbulence which he was referring to.[327]  I accept the plaintiffs’ submissions that it is not possible to draw the conclusion that the turbulence identified by Dr Smart on Figure DN-9 is a blockage or restriction in the main channel.[328]  The blockage marked on Figure DN-9 by Dr Smart is well beyond the right-angle bend near the quarry in Lockyer Creek.  That is, the blockage marked by Dr Smart on Figure DN-9 does not coincide with the blockage employed by Mr Dam when running his model.[329] 
  2. [523]
    In cross-examination Dr Smart referred to Mr Dam introducing this blockage in the following terms:

“The scenario with no blockage reproduces surges and other effects, but water levels upstream at Dinner Corner and downstream in Grantham aren’t the same as what was observed, and so the model scenario used to investigate the natural phenomena indicates something is happening … that isn’t well reproduced in this scenario simulation, and therefore, Dr Dam has allowed for the fact that there’s some unknown phenomenon by introducing a blockage or a constriction in the creek channel, and when he does that, his model then accurately reproduces the measured water levels at Dinner Corner and better reflects the water levels downstream in Grantham.”[330]

  1. [524]
    While Dr Smart was the person who gave Mr Dam the original instruction that there was a “possibility” of a tree blockage, it was Mr Dam, in the absence of any evidence, who determined the size of the blockage.  What Mr Dam modelled was in effect a weir blocking the entire watercourse around the bend of Lockyer Creek.  Ultimately Dr Smart agreed that such a blockage was nothing more than a “possibility”.[331]
  2. [525]
    The existence of a blockage by trees was central to Mr Dam’s observed water levels.  In the absence of any evidence of such a blockage, it is concerning that Mr Dam would incorporate it into his modelling.  This is particularly so, as Mr Dam has assumed a blockage of the creek channel adjacent to the bund, the precise location where the blockage would create the maximum impact because it increases the water level only upstream of the bund.  This increases the difference in water level across the bund and, as Mr Dam himself noted in cross-examination, this “water level difference causes a surge that moves downstream”.[332]  I accept the plaintiffs’ submission that there is no justification for the magnitude and location of the blockage modelled by Mr Dam.[333]
  3. [526]
    A second reason why Mr Dam’s opinion should be given no weight is because he employed an original quarry pit level in his model of 109m AHD.  For the purposes of his third report, Dr Smart asked Mr Dam to assume an initial quarry pit level of 114m AHD.  The plaintiffs submit, and I accept, that the impacts reported by Mr Dam as a result of the change from 109m AHD to 114m AHD are not representative of the true impacts because Mr Dam also changed the upstream inflows.[334]  The quarry pit level is important because the water upstream of the bund must be higher than the quarry pit level, as it is that water level difference which creates a surge.[335]  I had the following exchange with Mr Dam in this respect:

“HIS HONOUR:  Yes, but my question is this: you don’t get a surge and you certainly don’t get a catastrophic surge if at the time that the bund collapsed the water levels are the same?

MR DAM:  You mean in the pit level and upstream?

HIS HONOUR:  Yes?

MR DAM:  No.  You would not get a surge because the water levels would be the same.  Yes.”[336]

  1. [527]
    Dr Smart explained this in the Joint Expert Report:

“I understand that Dr Newton’s modelling has the quarry pit overfull, around AHD level 126m (or 2m above the bund shear level of around 124m AHD) at the time of bund failure. 

This very high level has two consequences:

  • the mechanism of bund failure along the residual shear plane is unlikely as the bund would have had to shear against the weight of 2m of water sitting above the level of the shear plane, and
  • the surge resulting from sudden breach of the bund would be much smaller because the water level difference from upstream of the bund to downstream of the bund was reduced from around 4.8m to around 2.8m.”[337]
  1. [528]
    Both Dr Smart and Mr Dam accept that 109m AHD is unrealistic.  To ensure, however, that by 4.00 pm the level reached was 124m AHD, Mr Dam had to adjust inputs other than changing the quarry pit level from 109 to 114m AHD.  The difficulty I have with Mr Dam’s third report is that, having altered the quarry pit level significantly by five metres, he does not re-run his model based on the original inflows from Monkey Water Holes Creek and Flagstone Creek.  What Mr Dam has done is to adjust these inflows to ensure that the quarry pit level at 4.00 pm on 10 January 2011 is 124m AHD.  This ensures that the model recreates a catastrophic surge when the bund collapses.  The inflows are adjusted by Mr Dam not to reflect real world data, but to achieve a certain outcome.
  2. [529]
    I accept the plaintiffs’ submission that a pit water level of 124m AHD at 4.00 pm is an assumption that needs to be proved and the defendants have failed to do so.[338]
  3. [530]
    Having determined that Mr Dam’s reports are inadmissible, or alternatively of no weight, it follows that the defendants have failed to prove the substantial truth of the Category 1 imputations.  This is because the defendants’ experts have not established any causal link between the collapse of the bund at the quarry and the deaths of 12 people.  This finding may be made even prior to a consideration of Dr Newton’s evidence and the evidence of eyewitnesses.  This is because Dr Newton’s expert opinion is that any surge caused by breaching was not significant in terms of property damage and risk to persons.  Secondly, Senior Counsel for the defendants conceded in oral submissions that the eyewitness evidence could not establish this causal link:

“HIS HONOUR: … in terms of your truth defence, do you accept the proposition that the evidence of the eyewitnesses without interpretation by your experts is insufficient for the purposes of establishing the causal link between any collapse of the bund and the deaths of the 12 persons?

MR ANDERSON:  That may be the case, yes. 

HIS HONOUR:  Therefore, your case can only be established in terms of substantial truth by reference to your expert evidence – in particular, Dr Smart.

MR ANDERSON:  Yes.”[339]

  1. [531]
    Although this concession was properly made, it is appropriate that I proceed to consider the evidence of Dr Newton and the eyewitnesses.

(d)   Dr Newton

  1. [532]
    The defendants submit that, in light of the eyewitness evidence, there is much to be sceptical about the modelling undertaken by Dr Newton:

“Against that of course is the fact that eye-witnesses give consistent accounts of a devastating surge passing through the township of Grantham, a matter seemingly lost in the model analysis – how that evidence could be ignored in favour of the outcomes of a computer programme informed by uncertain inputs and parameters is a perplexing proposition.”[340]

  1. [533]
    This submission reveals both a misunderstanding of Dr Newton’s modelling and the effect of the eyewitness evidence.  The two are not inconsistent, contrary to the defendants’ submissions. 
  2. [534]
    Dr Newton, in creating a model which seeks to recreate the Grantham Flood event, calibrates this model by reference to real world data which includes the accounts of eyewitnesses, together with contemporaneous photographs and video evidence.  The accounts of eyewitnesses, however, cannot answer the question as to whether the breaching of the bund at the quarry caused a surge in floodwaters between the quarry and Grantham resulting in the deaths of 12 people.  This causation issue is a matter for expert opinion involving, as it does, complex hydrological questions.
  3. [535]
    Before addressing the criticisms made by Dr Smart of Dr Newton’s modelling, it is first important to understand this modelling. 
  4. [536]
    Dr Newton was the only expert who developed a two dimensional flood model of the Grantham Flood event.  Dr Newton developed this model to enable him to simulate the counterfactual scenarios and identify how key flood characteristics may have been altered had events unfolded differently.  Dr Newton explains this in the following terms:

“It is not possible for anyone to witness a hypothetical alternative scenario which reflects what might have happened if events had unfolded differently.  Neither is it possible for any expert, no matter how experienced, to accurately imagine an alternative scenario because of the complex interactions of processes under consideration.  For this reason, the quantification of any alternative scenario must be based on a model which realistically represents the physics of fluid motion.  Such models are available and widely used in practical and research applications across Australia and internationally.  I have used such a model to inform my opinion on the flood impacts of the quarry.”[341]

  1. [537]
    The modelling software used by Dr Newton was TUFLOW HPC.  This modelling software is a “well recognised two dimensional flood modelling package” which Dr Newton has used extensively and “is probably the most widely used flood modelling software in Australia at the moment”.[342]
  2. [538]
    Dr Newton investigated the TUFLOW model to ensure that it was capable of accurately simulating the generation and propagation of any surge generated by events at the quarry.[343]
  3. [539]
    Dr Newton identified that one of the factors affecting the magnitude of any surge caused by breaching of the bund is the assumptions about when the bund breached and how long this process took.  The total breached length of the bund was about 260m over a total bund length (including the sections that did not breach) of about 340m.  Dr Newton adopted a worst case scenario by proceeding on the basis that there was very fast breaching of the bund along its entire breached section. 
  4. [540]
    The result of his flood modelling was that the breach of the bund and natural bank did not materially impact flood behaviour in Grantham.  The timing of the initial inundation, the peak flood depth, the maximum velocity and the rate of floodwater rise were similar whether the bund and bank breached or not.  He concluded that breaching did not materially affect property damage or risk to persons.  His model results compare the rise in water level across the Grantham floodplain primarily for two cases:
  • Fast Failure: this scenario represents a worst case assessment of what could have occurred on 10 January 2011, including breaching of the quarry bund within five seconds;
  • No Bund: simulation of the flood with ground levels modified so that the bund did not exist throughout the event.
  1. [541]
    The model results show that breaching of the bund had a minimal impact on peak flood level, rate of rise and flood velocity in Grantham, compared to the No Bund case.[344]
  2. [542]
    Dr Newton used both anecdotal observations and recorded flood data to calibrate his flood model.  This included numerous statements of eyewitnesses to the Grantham Flood event.  According to Dr Newton, most of the witness statements are not specific with respect to levels or times, which makes it difficult to use this information in a quantitative way.  Dr Newton also refers to some witnesses referring to a “wave” or a “wall of water”.  He observes in this respect:

“The use of these terms cannot lead to any conclusion about the impact of the quarry because the same terms were used by witnesses to describe flooding upstream of Helidon, where it is impossible that the quarry had any effect.”[345]

  1. [543]
    The available flood data for the 10 January 2011 flood which was used to calibrate the TUFLOW hydraulic model included eyewitness accounts, photographs and videos, including Channel 9 helicopter video footage and videos taken by Mr Richardson to which I have already referred.  Dr Newton also calibrated the model to surveyed peak flood levels and depths.  Dr Newton also made use of telephone call records, including calls to emergency services (000).[346]  Dr Newton also used velocity estimates from video tracking of debris to calibrate the model.
  2. [544]
    Three of the eyewitness accounts relied on by Dr Newton are from Mr McGuire, Mr Pinkerton (who were called at trial) and Alan Eichler.  Mr Eichler’s account is referred to by Dr Newton at paragraph 46 of the Joint Expert Report.  Mr Eichler was not called by the plaintiffs as a witness at trial.  The plaintiffs seek the tender of Mr Eichler’s statement for the truth of its contents pursuant to s 92(2)(c) of the Evidence Act 1977 (Qld) because “the maker or supplier cannot with reasonable diligence be found or identified”.[347]  The steps taken by the plaintiffs to find Mr Eichler are outlined in an affidavit[348] of James Micallef, a solicitor with the solicitors for the plaintiffs.  In a more recent affidavit filed by the defendants[349] however it is affirmed that Mr Eichler is presently living at an address at Broken Hill and is registered on the New South Wales electoral roll.  The plaintiffs therefore need to rely on s 92(2)(b), namely that Mr Eichler is out of the State and it is not reasonably practicable to secure his attendance.  There is no evidence before the Court that it was not reasonably practicable for the plaintiffs to secure Mr Eichler’s attendance.  I have therefore not taken into account Dr Newton’s references to Mr Eichler.  Dr Newton relied on Mr Eichler’s account as only one of many matters which confirmed that his model accurately simulated the behaviour of the flood event.[350]
  3. [545]
    The calibration of a model is viewed as a critical and important stage of a model’s development in Engineers Australia’s Guideline, “Two Dimensional Modelling in Urban and Rural Floodplains”.[351]  Relevantly, ss 7.1 and 7.5 of the Guideline provide:

“Calibration of a hydraulic model to historical floods is a critical and important stage of the model’s development.  Calibration demonstrates that the hydraulic model is capable of reproducing flood behaviour within acceptable parameter bounds.  … Regardless of hydraulic model type or complexity, the calibration process is critical to ensure the model is capable of adequately representing the physical system, and, in doing so, producing reliable results …

The golden rule is that if it is difficult to achieve a satisfactory calibration then one or more of the below are likely to apply:

  • Inaccurate input data.
  • Inaccurate recorded calibration data and observations.
  • Unrealistic parameter values.
  • The model resolution or schematisation is inadequate.
  • Modeller error in developing the model.
  • The hydraulic modelling software is operating beyond its limitations.”
  1. [546]
    An important part of calibration therefore is the accuracy of input data.  It is Dr Newton’s opinion that his flood model provides a good representation of the flood as it occurred and that the model results are consistent with the available anecdotal information.[352]
  2. [547]
    The defendants are critical of Dr Newton’s modelling in a number of respects.  First, Dr Newton is criticised for citing the proposition that a successful model is one which can match real world results,[353] yet he had to run his model more than 50 times to match those results.  This criticism, in my view, misunderstands the calibration process.  The calibration process is used to confirm that the model is correct.  It does not matter that the model parameters are adjusted numerous times to achieve an accurate calibration.  The model must be able to predict what actually occurred to be of any value in predicting alternative scenarios.[354]  The process of calibration undertaken by Dr Newton as contemplated by the Guidelines envisages numerous adjustments to the parameters so that the model reflects real world data.  This is evident from the following questioning of Dr Newton:

“MR ANDERSON:  Okay.  Now, how many times did you run the model before you settled on the final result?

DR NEWTON:  I don’t know, but it would have been a lot.

MR ANDERSON:  Are we talking 10, 25, 50, what kind of range?

DR NEWTON:  Oh, easily dozens, yeah, perhaps 50.  I don’t really know.

MR ANDERSON:  So, in other words, you had to adjust the parameters 50 times or thereabouts before the model matched your real-world results?

DR NEWTON:  Perhaps, yes.

HIS HONOUR:  … Whilst you ran the model 50 times and adjusted your parameters to achieve what you saw as real-world results, when you ran the scenarios of no bund and a bund collapsing simultaneously at 4 o’clock or a bund collapsing within a short time, those scenarios were run in accordance with the model that you had arrived at?

DR NEWTON:  Yes, that’s correct, your Honour.  So we decided on the parameter set.  Once that was set, that was fixed for all of the different scenario runs.  So we were only testing the impact of changes in the quarry bund – for example, what would’ve occurred if it didn’t erode?  What would’ve occurred if it didn’t exist?  That was the only difference between the scenarios.  The Manning’s roughness was fixed, the inflows were fixed.  That was the change that we were asked to investigate, the impact of the change. 

HIS HONOUR:  So your ultimate opinions or the questions that were posed for all experts were answered by you by running those scenarios in the context of your model?

DR NEWTON:  Yes, your Honour.”[355]

  1. [548]
    The calibration process undertaken by Dr Newton is best understood by reference to Attachment 8 to the Joint Expert Report.  This is a “validation” video produced by Dr Newton.  The first part of the video shows an initial overview of the model run from 3.00 pm on 10 January 2011.  As the model is run references are made to real world data for the purposes of calibration.  For example, at 3.08 pm the model is calibrated by reference to photographs taken at the residence of Mr McIntosh at 3.08 pm.  This shows floodwaters being contained within Lockyer Creek.  A further photograph taken from the McIntosh residence at 3.20 pm shows that the floodwaters started overflowing from Lockyer Creek into the quarry pit.[356]  As the model is run, there are further references to matters used for the purposes of calibration, including 000 phone calls, photographs and videos.  The validation video, in my view, supports Dr Newton’s opinion that his model provides a good representation of the flood as it occurred.
  2. [549]
    A second criticism made by the defendants is of the water inflow data used by Dr Newton in respect of the inflow from Lockyer Creek at Helidon, (“the Helidon Inflow”).  The inflow data used by Dr Newton for the Helidon Inflow was based on a modified recorded hydrograph from a gauging station at Helidon.  Dr Newton explains how he arrived at a Helidon Inflow of 4,600m3/s.[357] The gauge for the Lockyer Creek at Helidon failed during the January 2011 Flood event.  The estimated peak 2011 flood discharge from the current published rating curve at the Helidon gauge is about 3,640m3/s.  The quality of this rating curve is noted by DNRM as “Poor” above 120m3/s.  Initial runs of the TUFLOW hydraulic model using this peak discharge indicated that modelled water levels in Grantham and upstream of the quarry were significantly underestimated.  Dr Newton notes that, due to the extreme flow velocities and rate of rise in Lockyer Creek at Helidon, the flood had dramatic effects on the hydraulic characteristics of the channel which was almost stripped of vegetation during the flood.  This change in channel roughness would have had a very large effect on the flow carrying capacity of the channel.  Dr Newton therefore developed a post-flood rating curve with channel roughness (represented by Manning’s ‘n’) adjusted to match the DNRM rating curve.  At the peak of the 2011 flood event the derived rating curves for low and high roughness indicate that the flow may be between 3,100m3/s and 5,400m3/s.  The modified rating curve is within the range of reasonable roughness values and is considered suitable by Dr Newton for post-flood channel conditions.  Dr Newton then generated an alternative flood hydrograph at Helidon with a higher peak flow. 
  3. [550]
    The defendants criticise this exercise.[358]  A range of the magnitude of 3,100m3/s and 5,400m3/s could, according to the defendants, hardly be a reliable one with a top figure being nearly 175 per cent of the lower.  Dr Newton accepted that his exercise was uncertain.[359]  The defendants assert that Dr Newton arrived at his Helidon Inflow of 4,600m3/s because “it produced the outcome that was sought.  In other words, if 4,600m3/s is the proper figure to be adopted, it is only because the model needed it to be in order to produce the modelled outcomes – it thus became, a self-fulfilling prophecy.”[360]  Dr Newton’s approach is also criticised on the basis that his adjustment for roughness because of scouring was not an exercise he undertook across the Grantham floodplain.
  4. [551]
    Dr Newton should not be criticised for not accepting the DNRM peak Helidon Inflow of 3,640m3/s.  Dr Smart agreed that the DNRM peak Helidon Inflow of 3,640m3/s was very unreliable.[361]  As correctly submitted by the plaintiffs, there appears to be no disagreement between the experts that the actual water level at Helidon on 10 January 2011 was significantly higher than the highest ever gauged flow data.  When the Helidon gauge failed on 10 January 2011, the last recorded gauge height was 10.857m at 2.40 pm that day.  The estimated peak was 13.88m, more than four times the highest recorded level.  Even accepting the DNRM estimate of 3,640 m3/s, it represents 33 times more than the previous highest flow record of 108m3/s.[362]  Further, Dr Newton’s alteration to roughness is supported by photographic evidence that the Lockyer Creek channel was stripped bare near the Helidon Gorge.[363]
  5. [552]
    The assertion that the Helidon input of 4,600m3/s arrived at by Dr Newton is nothing more than a “self-fulfilling prophecy” fails to recognise that the use of this input results in a model that better matches the observed peak water levels and timing of initial inundation in Grantham.  As explained by Dr Newton:

“We found that when we ran that through the model, that our results were much improved … It much better matched recorded flood level information both upstream and downstream of the quarry.  Not only did it match the peaks, but we were able to match the timing derived from various photographs, timestamped photograph, videos, triple zero phone calls – there’s a wide variety of information that we considered and using that info of 4600 cubic metres a second, we were able to match virtually all of that information quite well.”[364]

  1. [553]
    A third criticism made by the defendants is of the Manning’s ‘n’ values used by Dr Newton.  The modeller must include in the calculations a figure for ‘n’, as intending to represent the roughness of the surface over which the water flows.  The smoother the surface, the lower the ‘n’ value.  A range of values is likely to be applicable for each kind of surface, with the decision on which to choose left to the modeller.  Dr Newton used different Manning’s ‘n’ values for a channel, creek banks, floodplain, demolished building, building, road, dense vegetation, low-medium vegetation and quarry pit.  Dr Smart considered that Dr Newton had enabled roughness values that were too high, with the consequence that water levels upstream of the bund were too high.[365]  The defendants submit that Dr Newton’s position appeared to be that because a selection of the ‘n’ value was not a perfect exercise, it was ultimately the model outcomes that set the appropriate ‘n’ value.  In other words, the ‘n’ value was a variable that could be adjusted so as to ensure the model met the assumed outcomes.[366]  Again this submission proceeds on the basis that it is inherently wrong to adjust inputs in order to calibrate the model to real world data.  This is exactly what Dr Newton sought to achieve:

“You can make a model say almost anything if you move the parameters far enough, but the reason why we believe that we’ve got the parameters pretty right is not only the peak levels but it’s also the timing.  So, for example, Mr Steffens’ photograph shows that that break-out from the Lockyer Creek main channel that moved north and hit Gatton Helidon Road at about – was it 3.58 or something – we found that if we adjusted the roughness, it would be either too early or too late.  So we’ve been able to use the roughness parameters to not only determine the peak flood level but also the timing of when water reached different places across the floodplain.”[367]

  1. [554]
    I prefer the evidence of Dr Newton to that of Dr Smart.  I accept the plaintiffs’ submission that Dr Newton was demonstrably a candid witness when giving evidence.  He answered questions directly and objectively.  The calibration of his model to real world data, as evidenced in the validation video, constitutes compelling evidence which supports his conclusion that the breach of the quarry bund did not cause a surge in floodwaters between the quarry and Grantham sufficient to have any material effect on damage to property or risk to persons.  The tragic events in Grantham on 10 January 2011 were inevitable based on the magnitude of the flood event in Lockyer Creek.[368]

(e)   The eyewitnesses

  1. [555]
    The eyewitnesses were called to establish the factual basis for the opinions expressed by the experts, in particular Dr Smart.  Dr Newton used the eyewitness accounts, photographs and videos more for the purpose of calibrating his TUFLOW model.  Dr Smart, on the other hand, relied on eyewitness accounts to support the existence of a surge.
  2. [556]
    The defendants called 15 witnesses who were resident in Grantham and witnessed the flooding on 10 January 2011.  In giving their evidence, these witnesses had to recount events that were both harrowing and distressing.  To better understand their evidence, the Court undertook a view of Grantham which included the Railway Bridge, the King and Arndt residences, the quarry, the Hauser residence (including the green shed) and the Helidon Bridge.
  3. [557]
    Anthony McIntosh resided at 42 Klucks Road, Carpendale, south-west of the quarry.  In terms of Lockyer Creek, his residence was upstream of the quarry.  Exhibit 14 shows the position of Mr McIntosh’s residence at Klucks Road and also contains a number of photographs and videos taken by him on 10 January 2011.  On that day, he was to drive his daughter to Toowoomba for a dentist appointment.  On the way to Toowoomba he received a phone call from Peter Campbell, who informed him that there had been a huge amount of rain in Toowoomba and that he should turn around and go home.  Mr McIntosh did a U-turn and commenced driving home.  From previous knowledge he knew that floodwaters would take six to eight hours to arrive.  Once at home, his daughter brought his attention to Lockyer Creek.  He described what he observed:

“And I looked out the window and we had water going over the weir, which was directly – in the creek directly north of the house and it was only 400 metres away.  And there was huge waves that were going over – the weir wall was causing huge waves of water.  And I couldn’t believe how quick that water got there, the first thing.  When we got outside, we could see the water come – how fast it was moving and we looked upstream towards Kapernick’s Bridge, which was about a kilometre upstream, and we could see there was a lot of water there already.  And when I saw that was – what was coming, I got on my phone to make some calls to warn some people.  I think it was Grantham.”[369]

  1. [558]
    Within 10 to 15 minutes of seeing the water going over the weir Mr McIntosh and his family were cut off and trapped at their house.  He described his house as a well-built house and above any known flood marks.  The water, however, entered the lower part of his house.  He also observed whole trees and an enormous amount of floating debris in Lockyer Creek.  As the water continued downstream he heard pine trees snapping, which sounded like gunshots.[370]  He noticed the flow of water going west starting to pond.[371]  He visited the quarry on 12 February 2011 and at the southwestern part of the quarry “we could see what dirt had been washed away, washed off the top of the – of the bund, and – and where the water had – had flowed.  There was a – a considerable amount of water had flown from the Lockyer Creek, it had taken a shortcut straight across the quarry.”[372]
  2. [559]
    It is not clear from the Joint Expert Report what reliance Dr Smart places on Mr McIntosh’s observations.  His references to “huge waves of water” and the destructive nature of the flood and the fact that it was fast-rising do not support Dr Smart’s thesis of a surge caused by the collapse of the bund.  This is because Mr McIntosh’s observations were made of the floodwaters upstream of the quarry.
  3. [560]
    Jonathan Sippel resided with his wife Annaka and their children at 1649 Gatton Helidon Road, immediately north of the quarry.  Dr Smart relies on Mr Sippel’s evidence that he noticed water starting to trickle over the southern end of the bund at or about 3.39 pm.[373]  On 10 January 2011 at around 2.30 pm Mr Sippel received a phone call from his sister who lived in Alderley Street, Toowoomba.  She told him there had been a lot of rain.  Mr Sippel started to observe Lockyer Creek, which at that stage was about half full.  To observe the creek he went onto his neighbour’s paddock, Tom Friend.
  4. [561]
    At around 3.15 to 3.30 pm he received a call from Steven Kluck, who lived upstream at Kapernick’s Bridge.  Mr Kluck told Mr Sippel to get out because floodwaters were about a foot underneath Kapernick’s Bridge and were “building rapidly”.[374]  Mr Kluck informed Mr Sippel that “the powerlines and everything had been washed into the creek”.  Mr Sippel initially did not believe Mr Kluck because he only lived two kilometres up the creek.
  5. [562]
    Mr Sippel was also having telephone conversations with Mr Mallon, who informed him that he could see sections of the quarry filling with water.  At 3.40 pm, Mr Sippel observed that the water in Lockyer Creek was rapidly rising, “getting quicker and quicker” and “then all of a sudden the water came over the embankment around my ankles”.  The water burst the banks of Lockyer Creek and commenced to run into the cow paddocks.  At this stage Mr Sippel could see “water cascading like a waterfall sort of thing, trickling down that corner, and I could see it on the northern – north-western end sort of coming around the corner like there was something lying there, blocking it.  Just like a little waterfall, like a wave, coming around the corner and down onto the batching area and starting to get quicker and quicker and higher and higher.”[375]
  6. [563]
    At around 3.49 pm, Mr Sippel decided to evacuate his family.  He tried to drive his ute across the paddock but it bogged.  His observation as to the water was:

“At that stage, the water was probably maybe about 100 millimetres, six inches running sort of across our paddock, just a gradual sort of little stream of – wave of water, I suppose you would say.  I ran back to the house and grabbed our two boys, threw them in the back of one of the cars, grabbed a few of the animals and helped Annaka bring a few things out of the house. … When I had gone back in in that few minutes, the water had risen to probably about knee-deep in those few minutes of leaving and then I proceeded from that point to go back to the road to where Annaka was.”[376]

  1. [564]
    Mr Sippel then drove his family to Dinner Corner and parked on the crest of the road from where he observed water pooling in the area of the turf farm, on the land immediately west of the quarry and the northern turn in Lockyer Creek.  Upon returning to the Mallons’ house to assist them, Mr Sippel recalled hearing a loud crash and bang coming from the direction of his house, which lasted about 10 to 15 seconds, followed by an increase in the speed of the water, which became so forceful that he watched it carry away his demountable office and Mr Mallon’s tractor.  After assisting the Mallons to Dinner Corner, Mr Sippel then made some phone calls from Dinner Corner at approximately 4.20 pm and 4.35 pm.  The water level at this time was lapping the sleepers on the railway track.  He remained there with his family for no longer than half an hour until the water level dropped.  The Sippel’s house was inundated. 
  2. [565]
    The defendants submit that Mr Sippel’s evidence is “critical” because not only did he observe the creek and the quarry area during the afternoon, he gave evidence of seeing the overtopping of the bund and some form of blockage at the northern end of the embankment, and is also able to provide specificity as to timing.[377]  I do not understand the use of the word “critical” in this submission because there is nothing in Mr Sippel’s evidence which supports Dr Smart’s scenario of a surge emanating from the quarry.  To the contrary, Mr Sippel’s evidence and the phone calls he had with people who lived upstream of the quarry is consistent with the evidence also given by Mr McIntosh of a fast-rising destructive flood flowing downstream from Kapernick’s Bridge.  Mr Sippel’s observation that water had started to trickle over the southern end of the bund does not support Dr Smart’s surge scenario.
  3. [566]
    Marilyn Hylan lived with her sister at 33 Dorrs Road, which is the first road to the east of the quarry.  Dr Smart does not rely on any statement made by Ms Hylan.
  4. [567]
    She was at home on the afternoon of 10 January 2011.  She gave evidence about untying her neighbour’s dogs when water on the southern side of the property, the side closest to Lockyer Creek, was reaching past her knees.  She observed a wave of water coming out of the creek from the south, heading north.  She stated that the water was travelling very quickly “and it was probably coming over the top of sorghum that was … eight-foot high”.[378]  She stated that it was just like a big wave at the beach.[379] 
  5. [568]
    She then got into her vehicle and drove a short distance and saw “another wall of water coming down from the west”.  She observed that the water contained people’s houses, washing machines, fridges, trees, including a 60 foot gum tree, and other debris.[380]  She actually observed two walls of water, one coming from the creek and one coming from the west.  Both contained similar debris.  According to Ms Hylan, both waves met and went into a circular motion.  Significantly, Ms Hylan described the northern most point of the wave as being “the other side of the railway line on the road”.[381]  What Ms Hylan described are two waves, one coming from Lockyer Creek and the other as far as the railway, containing similar debris.  This evidence is more consistent with Ms Hylan observing extensive floodwaters from upstream of the quarry, rather than a surge emanating from the quarry.  If one of the waves that she observed was as far north at the railway line to a point south of the quarry, it could not possibly be the result of the breaching of the bund, given its width.
  6. [569]
    John (Sean) Gillespie lived at 1617 Gatton Helidon Road.  Dr Smart does not rely on any statement made by Mr Gillespie to support his opinions.  Mr Gillespie was at Helidon when the flood hit Grantham on 10 January 2011.  He returned to his house just after 4.00 pm and stopped at Dinner Corner.  Having walked down the railway line, he could see that the water was “dead still” and about halfway up the windows of his house.[382]
  7. [570]
    Lisa Spierling lived with her husband and five children at 1384 Gatton Helidon Road.  As Ms Spierling escaped from her house with her children she looked to the south and saw a long line of water (approximately two feet high) approaching rapidly from the south across the paddocks.[383]  She took her children up to the railway track where the ground was higher.  From this position she observed a family being pushed up against the railway fence by the water which was rising rapidly and carrying a lot of debris.[384]  Having been alerted by one of her children, she observed a “wave coming at me and the children down the railway line”.[385]  She described it as “like you’d find at a beach.  It literally was like a wave coming down the railway line.”[386]  This evidence is consistent with fast-flowing floodwater being channelled along the railway embankment.  Her description of a wave does not support the existence of a surge, let alone a surge emanating from the quarry.
  8. [571]
    Wilma Baukema lived with her husband at 44 Railway Street.  She was awoken on the afternoon of 10 January 2011 by a noise which she described as being “like jet planes”, which caused her to walk to the spare bedroom which looked south.  She observed a river of dirty muddy water about a metre high moving from west to east, fast flowing.[387]  She described this water as being “uniform in height”.[388]  She estimated that the water rose from ankle deep to about waist height in “only about 5, 10 minutes”.[389]  She describes leaving her house through a window at the back when a “big wave came, and the water rose rapidly till we were up to our necks in water, hanging from the gutters of the house”.  She stated the water was “moving very rapidly” and was “coming from both sides, and it was sort of boiling around us, but it was fairly calm”.[390]  Consistently with descriptions by other witnesses, she observed that the water was full of debris. 
  9. [572]
    Ms Baukema accepted that from the time she was hanging onto the gutter where the water was at waist height to the time it got to her shoulder was about 30 minutes.  The water continued to rise to a certain point but then slowly receded.[391]  The water did not, for example, rise and then drop down again and then rise again.
  10. [573]
    Ms Baukema’s description of what she observed is consistent with a rapid rise in floodwater. 
  11. [574]
    Francis King resided at 32 Railway Street with his wife and son.  Dr Smart relied on two statements of Mr King.  The first is an observation made by him in his statement dated 21 January 2011:  “The water just got deeper and deeper and within the matter of seconds the water had gone from ankle height to chest deep … The amazing part was the speed that the water flown and risen and the speed of it was like a car driving down the street.”  The second observation of Mr King is contained in a statement given to the Grantham Floods Inquiry dated 22 May 2015:

“As to paragraph 16 of my first statement, it wasn’t a wave as I had said in my first statement, it was a surge of water that rose over the bonnet of the car.  It was not a breaking wave like you’d see at the beach, it was a sudden surge in the height of the water coming from the west.  I remember it came over the bonnet of the car.”[392]

  1. [575]
    Exhibit 14 contains four videos taken by Mr King’s son.[393]  Mr King’s initial observation was of water creeping along the road, moving up from Sandy Creek.[394]  This water was moving from east to west.  According to Mr King this was typical of a normal flood.  As he and his son were moving up the road to move some vehicles, Mr King observed water which started to pour across the road and which appeared to be coming from the south initially.  At the time he was walking west along Railway Street, the water was only ankle deep.  By the time his son arrived at the car Mr King estimated that the water had risen more rapidly and was up to his knees.  This water was dirtier than the water Mr King had initially observed.  When he next looked up he saw water going over the bonnet of his son’s car up the street.  Mr King states:

“And there’s this great mass of water … sort of come down the road from the westerly direction, but there was sort of a – a bit of a southerly component to it – to it – like a wave, sweeping around.  … And then the – then the next thing I recall was being lifted bodily off the road by this great mass of water. … Well, there was a lot of rubbish and stuff with the water initially. And – well, I – I was sort of carried off the crown of the road, which I was walking on.”[395]

  1. [576]
    Mr King was swept towards the security fence along the railway line.  The height of the water at this time was over the security fence.  He was wedged up against some cars and his son was able to get hold of his right arm.  He was able to get to the windowsill of his son’s car.  His son commenced filming the second video at 4.15 pm.  This video shows water up to the height of the security fence near the railway line.  The flowing water is dirty and contains debris, including cars, boats and a horse float.  Because of the force of the water Mr King was washed off the car.  Fortunately he was able to hold onto a tree.  Again because of the force of the water, he lost most of his clothing while holding on to the tree.  He was in the tree for about an hour and a half.[396]  Eventually the water slowed down and he was able to pull himself up into a neighbouring tree where he stayed for another hour and a half to two hours. 
  2. [577]
    The video commencing at 4.15 pm shows a lot of rubbish attached to the top of the security fence which, according to Mr King, was deposited there by the initial surge of water.[397]
  3. [578]
    In describing the water, Mr King stated:

“Well, there were components to that water.  It wasn’t – it wasn’t like sitting in a swimming pool.  There was an initial – initial body of water which – that body of water carried the cars and myself over to the tree … that we were up against, and then, as you can see in the – in that video there, it deposited a heap of rubbish on top of the fence.  It receded a little bit, and then another – another body of water arrived.  I’d liken the – what happened next to being out on the bay in a storm and the sea gets very choppy … And that continued for the rest of the afternoon, or for at least a couple of – nearly a couple of hours.”[398]

  1. [579]
    While I accept Mr King’s evidence, as I do the evidence of all the eyewitnesses, his observations are consistent with other descriptions of the flood event which hit Grantham on 10 January 2011.  Neither Mr King’s observations nor his description of “a surge” support Dr Smart’s opinion that Grantham experienced a devastating surge emanating from the quarry.
  2. [580]
    Kenneth Otto lived with his wife at 1374 Gatton Helidon Road.  He gave evidence of seeing floodwaters “coming across the paddocks”.[399]  Mr Otto described seeing a long, black line of water coming towards him across the paddocks from the south-west.  This was at approximately 3 o’clock.[400]  Mr Otto raced back to move his parents from the cottage into his house.  While assisting them across the yard towards the house, the water hit them, knocked over Mr Otto’s mother and then washed them all into the shed which was located behind the house.  Mr Otto described this water as rising up like a wave as it hit the culvert on the side of the road, and bouncing up over the bitumen in their direction.  The water was initially knee-deep, moving very fast and hit them with a lot of force.[401]  Once in the shed, according to Mr Otto, the water kept coming up and up so he assisted his parents onto the workbench where they remained for approximately 15 to 20 minutes.  The water continued to rise by about one or one and a half metres until it reached approximately a foot below the top of the garage roller door.  From inside the shed, he observed the water coming across the paddocks and onto the road in waves; “boiling” water, in “big waves”.[402]  He agreed that the water rise was a steady rise – it “just kept coming up and coming up, and then it levelled off”.[403]  Dr Smart relies on Mr Otto’s 25 January 2011 description: “The first wave was a bit over knee height but it was moving at a tremendous speed”.[404]  Mr Otto’s evidence is, however, consistent with a fast-rising flood rather than a surge, let alone a destructive surge emanating from the quarry.
  3. [581]
    Frances and Kenley Arndt lived at 1348 Gatton Helidon Road.  Both gave evidence at trial.  Dr Smart relied on the statements made by Mr and Mrs Arndt to the Grantham Floods Inquiry.[405]  Mr Arndt in his statement described what happened as he was driving west on Gatton Helidon Road, about halfway between Sorrensen and Citrus Streets:

“… I hit a foot or two foot of water.  I chucked the ute into 4WD and continued driving for a few seconds then I ran into a wall of water, it was like hitting a brick wall.  I had a snorkel on the ute, the water was sucked into it and flattened the motor and the engine stopped.  I don’t know how high the water was, it came over the ute, it was dirty water …”

  1. [582]
    To similar effect was Mrs Arndt’s statement in which she described hitting “a bit wall of water” which went straight over the top of their ute:

“The water was coming in an east-north-easterly direction across ploughed land near Roses Rd.  It was like a big extended roll of water, like you see when people are surfing at the beach … It was then all of a sudden this great big wave hit the front of the ute, picked us up like a cork and pushed us off onto the side of the road.”

  1. [583]
    Their evidence at trial was to similar effect.
  2. [584]
    In cross-examination Mr Arndt agreed that at the time he hit the wall of water he was driving at about 60 or 70 kilometres an hour.[406]  The plaintiffs submit, and I accept, that Mr Arndt’s evidence is consistent with him hitting floodwaters while travelling at speed.[407]  Mrs Arndt’s evidence does not support Dr Smart’s assertion of a devastating surge.  Mrs Arndt’s evidence was that her daughter rang her to tell her to get out because there was a big wall of water coming down.  She described that when in the ute with Mr Arndt “the water was really coming up to the sides of the ute” and “Water, plenty of it and it was coming up to the sides of the doors and – of the vehicle”.  She stated, “[W]e got up a bit further there just before we got washed off the road, a big wall of water went straight up and over the front of the ute”.[408]  Mr and Mrs Arndt were able to escape the ute by opening the windows and were washed into some trees along Railway Street.  As the waters continued to rise Mr and Mrs Arndt climbed higher into the trees where they stayed until they were rescued by helicopter.  While they were in the trees the water continued to rise by approximately a foot or more.  This description is consistent with floodwaters and does not support Dr Smart’s theory of a devastating surge emanating from the quarry.
  3. [585]
    Ian Pinkerton lived across the road from Mr and Mrs Arndt on the Gatton Helidon Road.  Dr Smart relied on Mr Pinkerton’s description in his statement to the Grantham Floods Inquiry:[409]

“The water hit us from 3 directions.  Firstly, the main part of the water had come down the Gatton-Helidon Road from the Toowoomba direction towards the east.  Secondly, water was also coming up from the direction of the Lockyer Creek, from the south.  Thirdly, water was also bouncing off the railway tracks and coming back in towards us, from the other side of the road.  I estimate that the water was moving easily at between 80-100 km per hour, taking everything in its path.  I say this because I have been a truck driver for most of my life and I am experienced at estimating speed.”

  1. [586]
    Mr Pinkerton escaped to the roof of his house at or about 3.45 pm and observed that the water was around 10 foot deep and continuing to rise when he climbed onto the roof.  Mr Pinkerton stated that the water came into the house from the western side.  It was probably about a foot and a half to two foot deep in the kitchen.[410]
  2. [587]
    Exhibit 14 includes videos taken by Mr Pinkerton from 1347 Gatton Helidon Road.[411]  None of these videos were relied on by Dr Smart as evidencing a surge.  Mr Pinkerton’s evidence and these videos are, in my view, consistent with fast-flowing floodwaters containing significant debris, including cars.
  3. [588]
    Lance Richardson was the manager of the Grantham Hotel at 12 Anzac Avenue, where he lived with both his son and his mother.  Dr Smart relies on the video taken by Mr Richardson at 4.14 pm, which Dr Smart claims “shows remnant surge waves”.[412]  I have addressed this evidence at [470] to [475] above.
  4. [589]
    Mr Richardson received a phone call just before 4.00 pm on 10 January 2011, informing him that there was a lot of water at Helidon.[413]  Soon after he observed that a container which was next door started floating down beside the hotel and out onto the road.  He took a video of this event at 4.14 pm.  He then went inside the hotel and started to lift equipment.  By this stage water had started to come through the hotel and he took another video at 4.26 pm.  The water inside the hotel was at this stage ankle deep.  Prior to taking his third video at 4.36 pm Mr Richardson states that the water had continued to rise, and had swept items out of the hotel.  The third video shows extreme flooding and rapid flowing water from the hotel veranda.  Mr Richardson then heard a loud noise which alerted him to the fact that his neighbour’s house had collapsed.  His final video at 4.53 pm depicts his neighbour’s house missing.  The three occupants of this house lost their lives in the Grantham Flood event.
  5. [590]
    Mr Richardson’s evidence, including the videos he took, are consistent with a flood event.  Mr Richardson did not refer to seeing any waves or a surge of any magnitude.  Rather, he describes floodwaters that were rising “dramatically”.[414]
  6. [591]
    Mr Richardson had been in Grantham during the floods in 1986.  Compared with previous floods, he said he had “never seen it that high, of course, and I’ve never seen it flow that fast.  Yeah, just a great volume of water.”[415]  He stated that the water peaked at approximately 4.50 pm and “stayed up pretty high until just on dark”.[416]  Apart from Mr Richardson’s video taken at 4.14 pm, which Dr Smart relies on for the purpose of showing “remnant surge waves”, Dr Smart does not rely on the videos taken by Mr Richardson as evidencing a devastating surge. 
  7. [592]
    Daniel McGuire lived next door to Mr and Mrs Arndt at 1346 Gatton Helidon Road with his wife and children.  He was employed by the Rural Fire Service and had previously been a Volunteer Rural Fire Fighter for about 20 years.  He had at his property one of the Rural Fire Service vehicles – Grantham 51.  This was a four-tonne, Isuzu medium truck, approximately three metres high, four metres long, with approximately one metre of clearance to the ground. 
  8. [593]
    On the afternoon of 10 January 2011 Mr McGuire was called out to the front of his house by Mr Arndt who alerted him to the water coming from Lockyer Creek.  He recalls seeing a house coming down the creek and they both immediately took action to evacuate.[417] 
  9. [594]
    Mr McGuire and his family got into the Rural Fire Service truck, at which time “we had a wave of water coming across the road”, which he says was “coming at me” from Lockyer Creek from the south or south-west.[418]  Mr McGuire was attempting to turn the fire truck around and make calls when he saw a wave of water coming across Gatton Helidon Road.  The two walls of water, which Mr McGuire describes as being separated by about 30 seconds, came from Lockyer Creek, through the Pinkertons’ house, hit the culvert along Gatton Helidon Road and travelled over the road to his house.[419]  When the truck was hit by the water it spun around to face west and ended up in the ditch on the north side of the road approximately 100 metres east of his property.  Water entered the cabin and was halfway up the windscreen when Mr McGuire threw his son, Zach, through the driver’s window into a tree and told him to climb.  Mr McGuire was then sucked out through the same window, ending up 50 metres to the east in a tree.  Mr McGuire and his son, Zachary, survived.  Mr McGuire, however, tragically lost his wife and two of his children who remained trapped in the fire truck. 
  10. [595]
    Having reached a tree Mr McGuire observed that the water rose by approximately a metre.  The water took around six hours to recede to a level where Mr McGuire could see the lights on the top of the fire truck.[420] 
  11. [596]
    Dr Smart relies on a statement made by Mr McGuire to the Grantham Floods Inquiry:

“On leaving my house in Grantham Fire Truck 51 with my family on board, I looked back in the rear vision mirror in the direction of the railway line behind my house.  I could see the water appear to hit the railway line and created a wave rolling back in the direction of my house.  I would describe this water as being about two to three metres in height.”[421]

  1. [597]
    The plaintiffs submit and I accept that Mr McGuire’s evidence of fast flowing water first coming from a south to south-westerly direction and very soon after from a westerly direction is entirely consistent with Dr Newton’s model.  This is evident from the validation video.  While Mr McGuire describes water going over the fire truck, this is caused by the floodwater hitting a culvert and splashing over.[422]  There is nothing in Mr McGuire’s evidence which suggests the presence of a surge of the kind postulated by Dr Smart.[423]
  2. [598]
    It was often difficult and distressing for the eyewitnesses to recount the events of 10 January 2011.  I accept their evidence of what they observed on that day.  Much of their evidence was unchallenged.  The cross-examination of the eyewitnesses by Senior Counsel for the plaintiffs simply sought to clarify what they observed.
  3. [599]
    To the extent Dr Smart, in forming his opinions, relied on the evidence of the eyewitnesses, such evidence does not support the existence of a devastating surge caused by the breaching of the bund.  The eyewitness evidence is consistent with an unprecedented volume of floodwater flowing down the Lockyer Valley, across the floodplain at Grantham.[424]

(f)   Conclusion – Truth Defence – Category 1

  1. [600]
    2GB and Mr Jones have failed to establish the substantial truth of the Category 1 imputations.

Category 2 – the plaintiffs engaged in conduct designed to cover up the role played by them and the quarry in the Flood event

  1. [601]
    In accordance with my determination as to which imputations were conveyed, the relevant imputations which fall within Category 2 sought to be justified are: 12(a), 12(b), 15(a), 15(b), 31(c), 31(d), 37(c), 40(c), 43(e), 52(b), 52(c), 71(a), 71(b), 80(c), 80(d), 86(a), 86(c), 91(d), 91(e), 91(g), 92, 93B(a), 93B(b), 94, 95B(b), 96, 99(a), 99(b), 100(a), 100(b), 102, 102A and 105A.[425]  In their written submissions,[426] the defendants identify 52 imputations which fall within Category 2.  I have determined that eight of these 52 imputations were not conveyed.[427]  It is evident from Amended Attachment A to the defendants’ submissions that 2GB and Mr Jones no longer seek to justify 11 of the 44 imputations conveyed.[428]  These 11 imputations include the following meanings:
  • knowing of their culpability, the plaintiffs tried to persuade the Premier that allegations about a cover-up were a conspiracy theory;
  • knowing of their culpability, the plaintiffs persuaded the Premier that she should put her own self-interest ahead of assisting the truth to come out, and refuse to appear before a Senate inquiry into the disaster;
  • the plaintiffs conspired with the Deputy Prime Minister, Warren Truss and Barnaby Joyce to cover up their culpability for the deaths of people in the Grantham flood disaster;
  • the plaintiffs, in concert with the Bligh and Newman Governments and police, criminally conspired over a period of four years in a disgraceful and massive cover-up of the cause of the horrific and terrifying Grantham flood;
  • each of the plaintiffs disgracefully instructed the barrister appearing for him at the Grantham flood inquiry to bully a local resident, Ian Pinkerton, while cross-examining him as he gave evidence about the torment he and his family suffered during the fatal floods that hit the Lockyer Valley in 2011;
  • in concert with politicians, big business and the police, the plaintiffs engaged in a cover-up of their culpability for the Grantham flood in which 12 people died;
  • each of the plaintiffs attempted to cover up his culpability for causing the Grantham flood that killed 13 people on 10 January 2011 by removing large sections of an embankment on the northern side of his quarry in May 2011; and
  • each of the plaintiffs engaged in a sinister cover-up of his culpability for causing the Grantham flood that killed 13 people on 10 January 2011 by attempting to intimidate a journalist and confiscate photographic evidence.
  1. [602]
    These are very serious accusations made by Mr Jones against the plaintiffs.  There was, at trial, an attempt by 2GB and Mr Jones to justify the imputation that each of the plaintiffs attempted to intimidate a journalist and confiscate photographic evidence.  This is the incident recounted by Amanda Gearing in the Thirty-Second Matter set out in [403] to [404] above.  The defendants called Anthony Koch and Amanda Gearing to establish the truth of this allegation.  The plaintiffs called reply evidence from Andrew Kehoe and Phillip Gregory, former employees of Wagners who were present at the time of the incident.  It is not necessary to discuss this evidence in detail as the imputation is no longer sought to be justified.  I observe, however, that the evidence presented by the defendants could never justify the imputation.  First, from the evidence of both Mr Kehoe and Mr Gregory it was apparent that Mr Koch was mistaken in identifying Mr Gregory as Denis Wagner.  More importantly, even if Mr Koch had not been mistaken, it was the case the journalists were in fact trespassing and none of the conduct by the plaintiffs’ employees could, on any sensible view, amount to intimidation, let alone intimidation to conceal the plaintiffs’ culpability for the Grantham Flood event. 
  2. [603]
    As to the remaining 33 imputations, 2GB and Mr Jones plead that these imputations are substantially true because, in accordance with the true facts set out in Attachment A to the defence, the plaintiffs had created or maintained a public discourse to the effect that the levee at the quarry was not a man-made levee, the desired effect of which it may be inferred was to cover up, or alternatively deflect attention away from, the true facts or any investigation of them.[429]
  3. [604]
    The true facts are pleaded in paragraphs 1(i) to (m) of Attachment A to the defence.  Paragraph 1(i) alleges that the plaintiffs caused or allowed public statements and submissions made on their behalf, or further or alternatively on behalf of the Wagner business, to deny the stockpiling of overburden so as to create the levee, until such time as that fact was conceded during the course of the Grantham Floods Commission of Inquiry, or otherwise denying the levee played any role in the flood event that resulted in the deaths of people in Grantham.  This allegation is particularised by reference to a number of articles, including an article published in The Australian on 7 July 2011, as well as submissions made to the Grantham Floods Inquiry.  Other pleaded true facts allege that the SKM Reports before the Queensland Floods Inquiry were flawed, but that “notwithstanding their flaws, the plaintiffs relied upon the SKM Reports to publicly deny any involvement in the levee in the cause of the flooding that led to the deaths of people in Grantham”.[430]
  4. [605]
    The defendants further plead in paragraph 1(m) of Attachment A to the defence that the plaintiffs:

“(i) were responsible for the deaths of 12 people in Grantham because it was the breaching of the levee at the Wagner Business owned Quarry that caused the torrent of water;

  1. (ii)
    took part in attempts to cover up, by denying, the involvement of the levee in creating the torrent;
  1. (iii)
    intended or were prepared to take part in any attempt to cover up the involvement of the levee in creating the torrent;
  1. (iv)
    intended or were prepared to benefit from any attempt to cover up the involvement of the levee in creating the torrent;
  1. (v)
    benefitted in that there was an avoidance of, or an attempt to avoid, by virtue of the matters set out herein:
  1. claims for compensation by relatives of deceased flood victims and damages to those whose property was damaged or destroyed by the torrent;
  1. claims for criminal responsibility;
  1. reputational damage that would have occurred had their involvement in the flood been revealed;
  1.  closer scrutiny of their various business operations.”
  1. [606]
    The allegation in relation to the SKM Reports was not pursued in evidence.  Nor were any of the alleged motives outlined in (v) above (apart from evading liability for property damage) put to any of the plaintiffs in cross-examination.
  2. [607]
    A material component of the Category 2 imputations is the allegation that the plaintiffs orchestrated a cover-up.  In order to participate in, or orchestrate, a cover-up there must be some actual intention on the part of the plaintiffs which is deceptive in nature to conceal evidence of wrongdoing.[431]  The articles and the submissions made on behalf of the plaintiffs to the Grantham Floods Inquiry cannot in themselves establish the truth of the Category 2 imputations.  The defendants seek to establish the truth of these imputations by inviting the Court to reject the evidence of the first plaintiff, Denis Wagner, given in the course of cross-examination.  Denis Wagner was responsible for the operation and management of the Grantham quarry and for dealing with the scrutiny following the flood.  He was cross-examined extensively in relation to this issue.  Having observed Denis Wagner give evidence over the course of two days, I found him to be a straightforward and credible witness.  I accept Mr Wagner as an honest witness.
  3. [608]
    Before I consider his evidence, however, I note that there is a further difficulty with the truth defence in relation to the Category 2 imputations.  The common sting of the imputations is that the plaintiffs orchestrated a cover-up to conceal their responsibility for the collapse of the bund and the resulting loss of life.  I have already concluded that the defendants have failed to establish the substantial truth of the Category 1 imputations.  That is, the defendants have failed to establish the culpability of the plaintiffs.  There is no evidence that any of the plaintiffs held a belief that they were in fact culpable and that such culpability necessitated the orchestration of a cover-up.  2GB and Mr Jones have therefore failed to justify a material component of the Category 2 imputations.  They have also failed to prove the substantial truth of the first component of the Category 2 imputations, namely that the plaintiffs orchestrated a cover-up.
  4. [609]
    In considering this first component it is necessary to have some understanding of the topography of the quarry.  The experts agree that the 2010 LiDAR and the 2011 LiDAR describe the surface topography of the quarry and surrounds before and after the January 2011 flood event.[432]  The Joint Expert Report defines both the word “bund” and the term “natural bank”.  “Bund” is defined to mean a mound of earth up to about six metres high which had been placed on top of the natural bank along the western side of the quarry pit prior to the January 2011 flood event. “Natural bank” is defined to mean the original ground between the quarry pit and the main channel of Lockyer Creek.[433] As stated by Dr Newton in his report,[434] during the January 2011 Flood event, floodwaters from Lockyer Creek overtopped the natural bank causing a breach in the bank between the quarry pit and the creek channel.  The crest of the bund was also subsequently overtopped, resulting in sections of the bund being washed away.  The breach in the natural bank between Lockyer Creek and the quarry pit was up to about 8 metres deep and about 50 metres wide.  The breach to the bund was in two sections, one of approximately 170 metres and one of 90 metres wide.  The depth of material removed from these two sections of the bund averaged between 2 metres and 4 metres, but was greater in some places where the bund and underlying material had both been removed.  The bund height ranged from about 2 metres up to a maximum of about 6 metres near its southern end.
  5. [610]
    The first “public statement” relied on by the defendants is that made by Denis Wagner in an article “After the flood” published in The Australian on 7 July 2011.[435]  Relevantly the article states:
  • “Frustrated residents of Grantham, the Lockyer Valley township devastated by Queensland’s deadly summer floods, are demanding that the commission of inquiry into the disaster investigate whether an earth wall around a sand quarry helped cause the ‘inland tsunami’ that killed 12 people and destroyed scores of homes.”
  • “The quarry’s managing director, Denis Wagner, told Inquirer the worksite had no effect on the floodwaters in Lockyer Creek and added that the wall of soil surrounding the quarry ‘has been like that for a long, long time and it is not a levee bank in any way’.”
  • “‘The flows in the creek have never been altered’, Wagner says. ‘If anything, the hole [in the quarry] is a flood mitigation structure because what it does is take the water as it flows in.’”
  • “Gallagher says he wrote to the Gatton Shire Council five years ago telling it the quarry owners were constructing a high earth wall in alignment with the flow of the creek and that he was concerned about the effect it would have on water flows in a flood.”
  • “‘I got no response,’ he says.  ‘I walk every morning and used to watch the wall getting higher and higher as soil was placed on it from the site and compacted by trucks and heavy machinery driving on the new material.’”
  1. [611]
    In an article, “Company welcomes flood testimony clearing quarry role” published by ABC News on 23 September 2011, Mr Wagner made certain comments in response to the findings by Dr Jordan at the Queensland Floods Inquiry that the quarry reduced water levels in Grantham by up to 10 centimetres and delayed the water’s arrival by about 10 minutes:[436]

“Wagner’s managing director Denis Wagner says he hopes the doctor’s evidence ends speculation about the quarry’s role. ‘It’s very important that out of the flood inquiry has come the fact and the realisation that our operation at Grantham actually lessened the impact of the flood on the Grantham township, as opposed to making it worse, as has been alleged in various media reports over recent times,’ he said.”

  1. [612]
    In an article, “Quarry family firm: let’s get the facts but our hands are clean” published in The Australian on 7 March 2015, the following statements are ascribed to Denis Wagner:
  • “Denis Wagner, the head of the quarry operations before his family sold it to Boral after the flood, has repeatedly rejected accusations that the embankment was both man-made and played a deadly role in the flood.  There have been other claims of cover-up and culpability.”
  • “Mr Wagner said yesterday: ‘These allegations have been concerning because some people may believe them. We have never had any issues about being held accountable for our actions.  But we take exception to false and misleading allegations.’”
  • “According to Mr Wagner, the embankment wall of soil surrounding the quarry is not man-made, but natural.  The claim is strenuously challenged by some locals who insist the high earthen wall, in alignment with the creek, was built relatively recently.  ‘The flows in the creek have never been altered,’ Mr Wagner said.”
  • “‘During the event in question the quarry pit acted as a flood mitigation structure because what it did was reduce the water that flowed downstream.’”[437]
  1. [613]
    In an article, “Key Queensland independent MP Peter Wellington joins push for Grantham flood inquiry” published by ABC News on 10 March 2015, the following statement is ascribed to Mr Wagner:
  • “But quarry owner Denis Wagner said his pit lessened the flood’s impact and he had nothing to fear from another inquiry.”[438]
  1. [614]
    In an article, “Grantham Flood findings flawed” published in The Australian on 7 March 2015,[439] the following statements are made:
  • “Denis Wagner, a director of Wagners, said yesterday he and his family still strongly believed in the original expert finding, supported by the floods inquiry, that the deep quarry gave the townsfolk more time and slightly reduced the flooding in Grantham.”
  • “‘Regardless of how big the breach in the embankment was, what you had there was a deep pit and all of this water rushing down the creek filled it and that delayed the water that went on to hit Grantham,’ he said. ‘The pit has taken that huge volume of water out of the flood.  The other point that we keep trying to make is that the embankment or alleged levee is not man-made and was certainly not developed by Wagners – it is the natural creek bank.’”

Similar statements are made by Denis Wagner in two further articles.[440]

  1. [615]
    Denis Wagner was cross-examined extensively in respect of the statements made by him in these articles.  His evidence was that he always maintained that the “quarry wall” and the “embankment” were natural and were not man-made, and that the quarry mitigated the effects of the flood.[441]  The defendants submit that Mr Wagner’s maintenance of this position was unreliable for the following reasons:

“(a) It is completely contrary to numerous news articles – which Mr Wagner professed to have read at the time they were published – in which locals were quoted, complaining of a man-made earthen structure which held back the floodwater at the quarry, and telling of how they saw the earth being piled along the western side of the quarry, getting higher and higher;

  1. (b)
    It is simply unbelievable that in the face of those public complaints, the first plaintiff chose not to investigate the existence of a man-made structure at the quarry.  He cannot have reasonably maintained the understanding that the numerous references to a stockpile, dam, wall or other man-made structure was merely a reference to the internal wall of the quarry pit or the natural creek embankment;
  1. (c)
    It is also unbelievable that the first plaintiff, given his familiarity with the quarry since at least the 1990’s, would have no knowledge of such a structure being built, particularly when he visited it frequently and when, during the later years, the quarry was under his direct management and control;
  1. (d)
    The Wagners commissioned a survey of the quarry in 2008, which clearly showed excess material along the western edge of the quarry pit.  It is difficult to believe that the first plaintiff would not have been aware of that survey, given he was managing the quarry at the time.”[442]
  1. [616]
    Upon a proper analysis of Mr Wagner’s cross-examination there is, in my view, nothing unreliable in him maintaining his position.  The cross-examination of Mr Wagner on this issue covers close to 70 pages of transcript.[443]  Mr Wagner’s understanding of the public narrative was that the media reports referred to “a quarry wall or a quarry embankment”.  To his knowledge, in the media reports in 2011 or shortly thereafter, there was no mention of “a quarry bund or a levee”.[444]  He understood the allegation to be that the quarry wall had failed. 
  2. [617]
    It was suggested to Mr Wagner that part of the public narrative from 2011 included concerns being expressed that the “stockpile had collapsed”.[445]  Mr Wagner did not agree with this on the basis that a stockpile, according to industry standards, is simply material that is put in a heap and reprocessed and later sold.  This is to be contrasted with a bund which is on the edge of a pit.  Mr Wagner readily agreed that stockpiles were placed on the quarry of material which was processed for subsequent sale.  Mr Wagner’s understanding was that a reference to the “quarry wall” was a reference to the face of the wall of the quarry.[446]
  3. [618]
    Mr Wagner did not accept that the public narrative, soon after the Grantham Flood event, concerned “a manmade bund on the western side of the quarry [which] had collapsed causing an inland tsunami”.[447]  Mr Wagner’s public position was that the quarry mitigated the impact of the flood on the township of Grantham.  He knew that part of the natural embankment had collapsed during the Grantham Flood event.[448]  It is apparent from the discussion of the topography of the quarry above, that approximately 50 metres of the natural embankment was breached in the course of the flood.
  4. [619]
    Mr Wagner was consistent in his answers that he understood that locals were concerned about the breach of the embankment and the quarry wall.  At no time did Mr Wagner, in making these public statements, intend to refer to the bund.  His recollection is that the bund was never mentioned in the public discourse.[449]  It was put to Mr Wagner that by repeatedly denying that there was a man-made construction at the quarry he was seeking to cover up any role played by the quarry in the Grantham flood.  Mr Wagner’s evidence in response, which I accept, was as follows:

“That’s actually not correct.  I never once denied that the quarry had some impact on the flood.  Our position was – or my position was back then and is still today that the impact that it had on the flood was to delay the flow of water into Grantham and to reduce the height of the flood water in Grantham, and I have always run that line, and that is still my position today.  In all discussion and interviews and, to my knowledge, correspondence up until the Sofronoff inquiry actually started, we always spoke about the embankment and the quarry wall, which – so, you know, there was never any discussion about the bund.  There was sort of never any discussion about sort of anything else.  It was always about the embankment and the quarry wall.  And it is still my position today that both the embankment and the quarry wall are natural features.”[450]

  1. [620]
    There is nothing in the evidence to contradict Mr Wagner’s evidence that, until the Grantham Floods Inquiry, there was no reference made to a “bund”.
  2. [621]
    Mr Wagner understood the reference to the embankment being breached or collapsing as a reference to the 50 metre wide breach that was four metres deep, which was the breach of the natural bank.[451] 
  3. [622]
    According to Mr Wagner, he did not know of the existence of the bund until he saw a 2008 survey in preparing for the Grantham Floods Inquiry.  The survey did not come to his attention until that time.[452] 
  4. [623]
    Mr Wagner was cross-examined about his familiarity with the quarry and the frequency of his visits over the years.  It was suggested to Mr Wagner that he must have known of the bund prior to the flood.  Mr Wagner gave the following evidence:

“DENIS WAGNER: Prior to all this sort of coming out, you know, to drive around that quarry and see a bund on the edge of the quarry was not something that you would say, well, there’s a bund on the edge of the quarry because, you know, it’s just an ordinary feature in the development of a sandpit.

MR ANDERSON:  In part, it was six metres high

DENIS WAGNER: At one point.  And, you know, I think you said before it was 250 metres long, and a large portion of the 250 metres was a bit over two metres high. 

MR ANDERSON: Which is still – you’re a very tall man, but it’s still taller than you?

DENIS WAGNER:  Well, yeah, but I don’t go climbing over the bund, sir.   I---

MR ANDERSON: But you drove between the two bunds?

DENIS WAGNER: I did not, no.  No. 

MR ANDERSON: You must have? … If you went on the access track, you must have?

DENIS WAGNER: No.  No.  That is certainly not the case.  The access track was very rarely used and would very rarely used for quarrying purposes.  The power company – the access track was really for the power company to inspect the power lines.  We would drive from the sand washing plant, which is on the eastern side of Lockyer Creek, through the Lockyer Creek on the eastern side of the horseshoe bend and into the pit.  So very rarely would I or, I would suggest, any of our people onsite drive along that western embankment.”[453]

  1. [624]
    I accept Mr Wagner’s evidence on this issue.  He did not seek to lessen the number of times he had attended the quarry, stating that he would get there once every two, three or four weeks”.[454]  As correctly submitted by the plaintiffs, Mr Wagner had many responsibilities and aspects of the business to look after.  The Grantham quarry was just one.  There was no reason for the bund to have lodged in Mr Wagner’s consciousness, and there was even less reason for the few remnants of it to impinge on his consciousness after the flood, by which time the bund had virtually washed away.[455]
  2. [625]
    As to the 7 July 2011 article in The Australian, Mr Wagner gave the following evidence:

“The Australian article – I’m unsure the date of it.  But The Australian article – and I think it was about six months after the flood – was specifically, in my opinion, referring to the breach and the quarry wall and the embankment.  That’s what the article spoke about.  And post that, in any discussion I had with any media outlet or a journalist, we always spoke about the quarry wall, which, in turn, led to the breach and breached through the embankment.  The bund came into play when – prior to the Sofronoff inquiry.  When we became aware of it – and I think the word ‘bund’ was ever only used at the inquiry.  I don’t think the word ‘bund’ was ever used anywhere else.  Had anyone at any time said bund, you know, on top of the embankment, the lights may have come on that they were talking about something differently to what I was talking about.”[456]

  1. [626]
    In circumstances where there was a 50 metre breach to the natural bank, it is understandable that Mr Wagner comprehended references to the breach of the quarry wall as a reference to that breach. 
  2. [627]
    Mr Wagner rejected outright any suggestion that it was his intention to cover up the role played by the quarry in the Grantham Flood event:

“MR ANDERSON:  All right.  Now, I just wanted to show you one more – sorry, I do need to say one more thing.  Your intention – I know you disagree with me, but I need to put it to you.  Your intention in this respect was to cover up the role played by the quarry in the Grantham flood disaster?

DENIS WAGNER:  Absolutely not.

MR ANDERSON:  Because the more you deny it, the further distance you put between yourselves and public responsibility for what had occurred?

DENIS WAGNER:  I find that a bit offensive, but abs – the answer to that is absolutely not, Mr Anderson.”[457]

  1. [628]
    I accept this evidence.
  2. [629]
    2GB and Mr Jones have failed to establish the substantial truth of the Category 2 imputations.

Category 3 – the plaintiffs were involved in bullying and intimidation

  1. [630]
    There is only one imputation which falls within Category 3 which is sought to be justified.  The defendants seek to prove as substantially true the imputation that the plaintiffs are people who know only two things – self-interest and bullying.[458]  The imputation is sought to be justified by reference to evidence said to prove two allegations.  First, that the plaintiffs bullied and intimidated Heather Brown and David Pascoe and, secondly, attempted to intimidate Ian Pinkerton.  The defendants’ pleaded case is that:
  • “the plaintiffs had acted so as to bully and intimidate Heather Brown and David Pascoe, the desired effect of which it may be inferred was to prevent them from speaking out against them and to cover-up, or alternatively deflect attention away from, the true facts … or any investigation of them”;[459]
  • “the plaintiff[s] had bullied and intimidated persons who were witnesses at the Grantham Flood Commission of Inquiry, or acquiesced in the bullying of those people, … it may be inferred, to prevent them from speaking adversely about the plaintiffs or the Wagner business, and therefore to protect [themselves] or [their] business from being held to account for the deaths of people in the Grantham Flood disaster.”[460]
  1. [631]
    The true facts pleaded in Annexure A to the defence in respect of Heather Brown and David Pascoe are as follows:
  • “on or about 24 November 2013, an open day was conducted at the airport involving the low flying over the property occupied by Heather Brown and David Pascoe, at which (the plaintiffs knew or ought to have known, from the general knowledge of the area and because the [second plaintiff] had been told words to that effect by Ms Brown on previous occasions) Ms Brown and Mr Pascoe kept horses.  The lowflying of aircraft over the property had the effect of spooking the horses.  Ms Brown attempted to contact the second plaintiff to complain.  The second plaintiff telephoned Ms Brown that evening and said to her, using words to the effect, and dismissive of Ms Brown’s complaint about the effect of the airport on the horses, that their respective businesses were incompatible and that Ms Brown should move”;
  • “on or about 19 December 2013, an excavator owned or operated by the plaintiffs (through, it must be assumed, a corporate entity) was operated at night and in close proximity to Ms Brown’s horses.  Ms Brown complained to the second plaintiff in response to which she was told, using words to the effect, that she should move”;
  • “the second plaintiff repeatedly said these things to Ms Brown despite her having said words to the effect that she did not wish to relocate, from which it may be inferred, that the second plaintiff was seeking to bully and intimidate Ms Brown”;
  • “in or around October 2014, the second plaintiff informed a journalist from The Australian newspaper, using words to the effect that Ms Brown was only seeking a big rainbow cheque”;
  • “on about 21 January 2015, a distinctive, yellow helicopter owned or operated by the plaintiffs or their business interests, and bearing the Wagners logo without cause flew low over property occupied by Heather Brown and David Pascoe, critics of the plaintiffs, in particular in relation to the construction and operation of the Airport, and circled the sheds and residence there approximately six times.”[461]
  1. [632]
    The true facts pleaded in Annexure A to the defence in respect of the alleged intimidation of Ian Pinkerton is that on 23 July 2015, after Ian Pinkerton had given evidence at the Grantham Floods Inquiry critical of the first plaintiff’s failure to accept any responsibility for the consequences of the flood, the first plaintiff drove to Mr Pinkerton’s house, made no attempt to enter the property or to otherwise contact Mr Pinkerton, but instead, stood outside it on the roadway adjacent to his vehicle, staring in the direction of the house; unexplained conduct that was (it may be inferred if not admitted) designed to intimidate Mr Pinkerton.[462]
  2. [633]
    The defendants’ pleaded case is that the imputation is justified because the plaintiffs, by the actions complained of, were seeking to bully and intimidate Ms Brown, Dr Pascoe and Mr Pinkerton.
  3. [634]
    The defendants called Ms Brown and Dr Pascoe.  Evidence in reply was given by the second plaintiff, John Wagner, and Chris Barham.  Both parties have made submissions concerning the credibility of Ms Brown, Dr Pascoe and John Wagner relevant to their evidence concerning the alleged bullying and intimidatory conduct.  For reasons developed below, the defence of substantial truth in respect of the Category 3 imputation fails.  This finding is not dependent on any assessment of the credibility of either Ms Brown, Dr Pascoe or John Wagner.  The defence fails at the threshold because none of the alleged conduct evidences any intention on the part of the plaintiffs to bully or intimidate Ms Brown or Dr Pascoe.  Whether Ms Brown or Dr Pascoe subjectively felt bullied or intimidated by the conduct of the plaintiffs is not relevant.  The evidence does not establish any intentional conduct on the part of the plaintiffs to bully or intimidate Ms Brown and Dr Pascoe. 
  4. [635]
    The first incident concerns a meeting between Ms Brown and John Wagner at a fundraiser in late 2013.  This was the first time that Ms Brown and Mr Wagner had met.  Mr Barham was also present at the fundraiser.  Mr Barham knew Ms Brown and John Wagner independently.  Mr Wagner asked Mr Barham whether he would introduce him to Ms Brown.  Prior to this meeting Mr Barham knew that Ms Brown had made public comments in relation to John Wagner and the airport.[463]  Both Ms Brown and Mr Barham agree that there were around 600 people in the room at the function. 
  5. [636]
    Ms Brown’s evidence was that she was kneeling next to a chair talking to a trainer who was hard of hearing.  She felt a hand on her shoulder and then a hand was under her arm pulling her to her feet.  She was surprised when she discovered it was John Wagner.  Both Mr Wagner and Ms Brown accepted in evidence that the ensuing conversation they had with each other was “pleasant”.  Ms Brown’s evidence in this respect was as follows:

“MR ANDERSON: Did you have a conversation with Mr Wagner that night?

HEATHER BROWN: Yes, we did.  As I – as I gained my feet, I turned around.  And I was very shocked.  But having been a – a journalist who’d done a lot interviews and – handled a lot – a lot of situations, I regained my composure.[464]

MR BLACKBURN: You agree that it was a pleasant conversation?

HEATHER BROWN: I – the conversation, as I recalled earlier, which I spoke about, he said, ‘We didn’t have your – I’m John Wagner.  We didn’t have your house done over.’  He – he said, ‘You’ve got – you’ve got some horse event in Cloncurry’.  He gave me his card.  He said, ‘Contact me direct’.  That was the conversation.[465]

MR BLACKBURN: And you said to him words to the effect, ‘It’s nice to meet you at long last’ or words to that effect?

HEATHER BROWN: I’m very polite.”[466]

  1. [637]
    Apart from shaking Ms Brown’s hand, John Wagner denies that he touched her in any other way.[467]  Further, according to Mr Barham, when he and John Wagner approached the table, Ms Pascoe stood up.  His evidence was that at no stage did Mr Wagner touch Ms Pascoe.[468]
  2. [638]
    This is a sufficient description from the evidence of the relevant conduct.  Irrespective of how Ms Brown viewed Mr Wagner’s actions, it has to be accepted that this was the first time that Mr Wagner and Ms Brown met.  The meeting was at a fundraising function attended by 600 people.  Both Mr Wagner and Ms Brown described the conversation that ensued as pleasant.  There is nothing in Mr Wagner’s conduct that would in any way suggest that he sought to bully or intimidate Ms Brown on their first meeting.
  3. [639]
    The second aspect of conduct that is said to constitute bullying and intimidation arises from an open day conducted for the Wellcamp Airport held on 24 November 2013.  The open day involved the low flying of old aeroplanes, Warbirds.  These planes conducted two flyovers.  According to Ms Brown and Dr Pascoe, these flyovers spooked many of the horses at Plaintree Farms and caused some to hurt themselves by running into or through or over fences.  Ms Brown attempted to contact John Wagner to complain about the damage being caused and sent text messages to him on the day.[469]  Ms Brown and Dr Pascoe spent several hours sedating and moving horses to less exposed locations, however despite their efforts, six colts were injured.[470]
  4. [640]
    John Wagner telephoned Ms Brown that evening when she was in the car with Dr Pascoe.  According to Ms Brown, Mr Wagner said words to the effect that their two businesses were incompatible and that Ms Brown and Dr Pascoe needed to relocate.[471]  Mr Wagner admitted that in conversation with Ms Brown after the open day, he was dismissive of her complaints,[472] and told her that their businesses were incompatible.  It was known to Mr Wagner that Ms Brown had publicly opposed the construction of the Wellcamp Airport and also made public statements regarding the influence of the quarry in the Grantham Flood event.  Mr Wagner admitted to having a growing level of resentment towards Ms Brown and Dr Pascoe.[473]
  5. [641]
    There is no evidence that Mr Wagner instructed the pilots of the Warbirds in conducting their flyover to fly low over Plaintree Farms.  To the contrary, his evidence was that on the open day he endeavoured to keep the Warbirds well away from the Plaintree Farms.  His evidence was that the Warbirds did not fly directly over the farm.[474]  The pilots were instructed to “steer clear of Pascoe’s place.”[475]  Mr Wagner’s evidence in this respect was not challenged, rather he was cross-examined to the effect that the pilots could have been instructed to fly at a further distance away from Plaintree Farms.  Mr Wagner accepted in cross-examination that he could have instructed the pilots to fly further away.[476]  Mr Wagner denied that both in relation to the open day and the fundraiser any part of his conduct was either bullying or intimidatory:

“MR ANDERSON:  And the reason you didn’t was because you’d been bullying and intimidating Mrs Brown and Dr Pascoe for some period of time, because they were antagonists as you see it?

JOHN WAGNER:  Absolutely not, and I have never bullied or intimidated Brown or Pascoe.

MR ANDERSON:  And, indeed, on the occasion at the fundraiser, when you came and grabbed Mrs Pascoe by the arm and pulled her to her feet, that was another example of your attempts to bully and intimidate?

JOHN WAGNER:  Well, I – I totally – totally – disagree that I touched Heather Pascoe in any shape or form apart from shaking her hand.”[477]

  1. [642]
    I accept Mr Wagner’s adamant denial that he sought to bully or intimidate Ms Brown or Dr Pascoe.
  2. [643]
    Further conduct complained of is that on 19 December 2013 an excavator was operating at night in close proximity to Plaintree Farms.  Ms Brown sent a text message at or about 6.50 pm to John Wagner asking that the work be stopped.[478]  Dr Pascoe drove down to the entry to Wellcamp Airport and spoke to the night foreman and the Work Health and Safety officer, requesting that they shut the excavator down.  There was also discussion about the sound.  Mr Wagner’s evidence was that the noise was at a low level.[479]  The Wellcamp Airport was being constructed at the time.  Mr Wagner’s conduct should be viewed in the context of him responding to a noise complaint from a neighbouring property.  This conduct is, in my view, incapable of constituting bullying and intimidation. 
  3. [644]
    Ms Brown and Dr Pascoe also gave evidence of occasions when a distinctive yellow helicopter, which they recognised as belonging to the Wagners, flew low over their property without cause and circled the office and the sheds multiple times.[480]  Both John and Neill Wagner gave evidence about this topic.  John Wagner stated that he knew nothing about the alleged incidents.[481]  Neill Wagner stated that he did not ever fly a helicopter over Plaintree Farms.[482]  One may readily understand, given Ms Brown’s opposition to the construction of the Wellcamp Airport, that she would be sensitive to aircraft, including helicopters flying over or near Plaintree Farms.  There is, however, no evidence that this was intentional conduct on the part of the plaintiffs, or that the plaintiffs sought to bully or intimidate Ms Brown and Dr Pascoe.
  4. [645]
    The alleged conduct, quite apart from not constituting bullying and intimidation, is readily explicable by the nature of the event.  The meeting at the fundraiser, for example, arose because Ms Brown and Mr Wagner had not previously met.  Mr Barham, who was present at the fundraiser and knew both of them, was able to facilitate an introduction.  Similarly with the open day at the airport, there is an obvious explanation for the flyovers by the Warbirds, namely to entertain the crowd that was attending the open day.  Further, as Plaintree Farms is across the road from the airport, some helicopter traffic would be expected.
  5. [646]
    Mr Pinkerton gave evidence of an incident he alleges occurred the day he gave evidence at the Grantham Floods Inquiry.  He was at home that afternoon.  He went out to his front veranda to have a cigarette.  It was at this stage that he noticed a motor vehicle.[483]  It was a Land Cruiser.  He noticed a person standing between the driver’s door, which was half ajar, and the vehicle.  The Land Cruiser was facing west.  Mr Pinkerton states:

“And his – there’s this person, Denis Wagner, standing between his door and the car, and I’ve looked again, and that’s when I’ve noticed who it was, and we eyeballed each other for probably a minute, I suppose, and I couldn’t believe it, wondered what he was up to, so I went inside to get my partner to get a camera or video or whatever, and when I’ve come back out, he had started to drive off then.”[484]

  1. [647]
    Denis Wagner denies that this incident ever occurred.[485]  The defendants submit that it may be inferred that this alleged behaviour by Denis Wagner was designed to intimidate Mr Pinkerton because he had given evidence at the Grantham Floods Inquiry about the torrent of water in Grantham, and his evidence could potentially harm the plaintiffs in the circumstances that the torrent originated at their quarry.[486]  I do not accept this submission.  First, from Mr Pinkerton’s own evidence it would appear that his sighting of the white Land Cruiser and the driver occurred purely by chance.  He only became aware of the vehicle when he went out to his front veranda for a cigarette.  Secondly, if the alleged conduct was for the purpose of bullying or intimidating Mr Pinkerton, the timing of such conduct is illogical because Mr Pinkerton had already given his evidence to the Grantham Floods Inquiry.  Thirdly, the allegation that Mr Wagner sought to bully or intimidate a person who had just given evidence to a commission of inquiry is a very serious allegation.  Such conduct could have exposed Mr Wagner to contempt proceedings.  In those circumstances, and having already accepted Denis Wagner as a witness of truth, I accept his denial of ever having engaged in such conduct.
  2. [648]
    Mr Wagner’s denial is only countered by the identification evidence of Mr Pinkerton.  The plaintiffs submit that Mr Pinkerton’s evidence should not be accepted on the basis that he is a disgruntled ex-employee of Wagners who had an axe to grind.[487]  It is not, in my view, necessary to make an adverse finding of credit in relation to Mr Pinkerton.  Having accepted Mr Wagner’s denial of the alleged conduct, I find that Mr Pinkerton was mistaken as to his identification of the driver of the white Land Cruiser.
  3. [649]
    2GB and Mr Jones have failed to establish the substantial truth of the Category 3 imputation.

Category 4 – the plaintiffs constructed and operated the Wellcamp Airport in breach of all the rules

  1. [650]
    In accordance with my determination as to which imputations were conveyed, the relevant imputations falling within Category 4 sought to be justified are paragraphs 28(b), 37(e) and 80(a).[488]  In their written submissions, the defendants identify seven additional imputations with the same common sting as those falling within Category 4.[489]  The defendants no longer seek to justify these seven additional imputations.[490]  Although the defendants no longer seek to justify these imputations, some of them are defended on the basis of contextual truth (s 26 of the Act).
  2. [651]
    The seven imputations which the defendants no longer seek to justify conveyed the following meanings:
  • each plaintiff was a corrupt businessman in that he was able to build an airport in breach of all laws by reason of his connections with the Premier, Campbell Newman and other officials in local government and state government;
  • each plaintiff built an airport without seeking proper approvals which he knew were required with disgraceful disregard for the interests of the community;
  • each plaintiff dishonestly tried to get away with building an airport in Toowoomba without seeking proper approvals from the Toowoomba Regional Council, because he knew the Council was gutless and the state government was on side, letting him walk over the community;
  • each plaintiff built the infamous Wellcamp Airport in disregard of the interests of the community without first obtaining, as he was required to do, an environmental impact statement, a health impact statement, a community impact statement or a water impact statement, or paying the compensation owing to those adversely affected because they lived in close proximity to the airport;
  • each plaintiff illegally obtained a national asset, the airspace over the Oakey military base, for use at his private airport;
  • each plaintiff thought he could get away with building an airport at Toowoomba without seeking proper approvals, and without having to pay for a national asset, the airspace over Oakey; and
  • each plaintiff by reason of his corrupt relationship with the Coalition in Queensland and Canberra, was able to buy the airport at Toowoomba without seeking the required approvals and was then gifted Oakey airspace, which is a valuable national asset.
  1. [652]
    The three imputations which the defendants seek to justify are that:
  • each plaintiff had constructed an airport in Toowoomba and had broken all the rules in the construction of the airport;
  • each plaintiff was a callous and selfish person in that he built an airport without an environmental impact statement, a health impact statement, a community impact statement, a water impact statement, and without any compensation for people living in hopeless proximity to the airport;
  • each plaintiff behaved disgracefully by building an airport in Toowoomba without seeking proper legal approvals and then taking a national asset, the airspace over Oakey, without making any payment for it.
  1. [653]
    The defendants plead that these meanings are substantially true because the airport had been able to be, or was, constructed and operated:[491]
  1. (a)
    following a code assessable approval process initiated under the Jondaryan Shire Planning Scheme 2005 upon an application made on or about 29 June 2012 for a proposed use of the land as Utilities Public (and when the use proposed, as a privately owned large scale commercial airport, was not properly for Utilities Public as defined by that Scheme), rather than an impact assessable process to which the proposed development ought to have been subjected, upon an application made for a proposed use that was not defined by the Scheme;
  2. (b)
    when the use of the land as a privately owned large scale commercial airport was not contemplated by the Jondaryan Shire Planning Scheme, nor capable of being assessed and approved under that Scheme in a manner that appropriately ensured community interests and the nature of the development were brought to account;
  3. (c)
    when the application made on or about 29 June 2012, was made in the few days immediately prior to the commencement of the Toowoomba Regional Planning Scheme 2012, under which the application would have been impact assessable;
  4. (d)
    when the consequence of making a code assessable rather than an impact assessable application was that, amongst other things, the application was assessed against a narrow range of considerations and was not subject to public notification of the use of the land as a privately owned large scale commercial airport, and the consequently  more rigorous assessment and approval process that attaches to impact assessable applications, including the assessment of the application against the entire planning scheme, and the fact the application is subject to third party objection and appeal;
  5. (e)
    when subsequent applications made on 30 August 2012, 20 September 2013, 14 February 2014, 17 February 2014 and 19 February 2014 in relation to a development of greater scale and intensity than that described by the application of 29 June 2012 were made with the consequent benefit of the approval already made under the Jondaryan Shire Planning Scheme, thereby avoiding the scrutiny and third party processes that would otherwise have applied had the application been properly  made as impact assessable, or made instead under the Toowoomba Regional Planning Scheme;
  6. (f)
    without the need to pay any compensation to neighbouring land owners, despite the significant stigma it (the construction and subsequent operation of the airport) would attach to their properties;
  7. (g)
    with the unconditional (as to the payment of any money) approval of the Commonwealth Government for access to the airspace above or adjacent to the Department of Defence facilities at Oakey;
  8. (h)
    despite the loss of approximately 40% of the controlled airspace above or adjacent to the Oakey defence base;
  9. (i)
    without approval first having been sought as required by ss 18 and 19 of the Environmental Protection and Biodiversity Conservations Act 1999 (Cth);
  10. (j)
    in breach of the approved use of the airport, where there is no approval to operate as a function centre;
  11. (k)
    where doing so (having regard to the matters set out above) was contrary to reasonable local community expectations about the consultation process and methodology that ought be engaged in the approval, construction and operation of such a significant project;
  12. (l)
    was thereby undertaken in breach of the community’s rules.
  1. [654]
    The defence does not define the term “the community’s rules”.  There has been no attempt by the defendants to identify what “community rules” apply to the construction of an airport.  The plaintiffs submit, and I accept, that the term is meaningless.[492]  In any event, the defendants’ written submissions identify specific matters by which the Category 4 imputations are sought to be justified.

(a)   No approvals obtained under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (“the EPBC”).