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Wagner v Harbour Radio Pty Ltd (No 2)

 

[2018] QSC 267

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 267

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:

10830 of 2015

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 November 2018

DELIVERED AT:

Brisbane

HEARING DATES:

Written submissions filed 2 October 2018, 12 October 2018 and 17 October 2018.  Oral hearing 19 October 2018.  Further written submissions filed 23 October 2018 and 29 October 2018.

JUDGE:

Flanagan J

ORDER:

  1. The first, second and third defendants pay the first, second, third and fourth plaintiffs’ costs of the proceedings:
  1. to but not including 30 April 2018, to be assessed on the indemnity basis; and
  2. thereafter from and including 30 April 2018, to be assessed on the standard basis.
  1. The first, second, third and fourth plaintiffs pay the fourth defendant’s costs of the proceedings.

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – INDEMNITY COSTS – SETTLEMENT OFFERS – where each of the plaintiffs, following a judge-alone trial, was awarded damages for defamation in respect of their claims against the first, second and third defendants – where the plaintiffs’ claims against the fourth defendant were dismissed – where the plaintiffs seek indemnity costs as against the first, second and third defendants – where the plaintiffs’ argument is in part founded on s 40 of the Defamation Act 2005 (Qld) – where the defendants, prior to and in the opening weeks of trial, extended four settlement offers to the plaintiffs – where this Court in earlier reasons held the first of those offers to be unreasonable – where the plaintiffs extended one counter-offer to the defendants – whether the defendants’ failure to include an apology in their second and third offers to settle, and inclusion of an inadequate apology in their fourth offer, rendered the offers unreasonable for the purposes of s 40 – whether the defendants’ failure to accept the plaintiffs’ counter-offer, to which was appended a pre-written apology to be made by the fourth defendant, was unreasonable for the purposes of s 40

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – UNREASONABLE CONDUCT OR DELINQUENCY RELATING TO PROCEEDINGS – HOPELESS CASES – FORM OF COSTS ORDERS – where the plaintiffs in the alternative seek indemnity costs pursuant to r 703 of the Uniform Civil Procedure Rules 1999 (Qld) – where the second defendant at trial repeated, in the course of his oral evidence, imputations later held by this Court to be defamatory – where the second defendant’s conduct has already attracted an award by this Court of aggravated damages in the plaintiffs’ favour – where the defendants on the first day of trial altered or abandoned a number of defences – where the defendants abandoned a further defence on the final day of trial – where the truth defences that the defendants did run at trial were weak – whether the defendants’ conduct in the litigation caused the plaintiffs to incur unnecessary and wasted costs in preparing for trial – whether the defendants’ conduct warrants the making of an order for payment of costs other than on a party and party basis – whether any award of costs should be apportioned so as to be paid partly on the standard basis and partly on the indemnity basis

Defamation Act 2005 (Qld), s 40

Uniform Civil Procedure Rules 1999 (Qld), r 703

Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (In Liq) & Ors (No 2) [2017] QSC 266, applied

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248, quoted

Davis v Nationwide News Pty Ltd [2008] NSWSC 946, quoted

Di Carlo v Dubois & Ors [2002] QCA 225, applied

Gallaher International Ltd v TLAIS Enterprises Ltd [2008] EWHC 2046 (Comm), cited

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

Raja v Rubbin [2000] Ch 274; [1993] All ER 73, quoted

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

  1. [1]
    On 12 September 2018, the Court ordered that the first and second defendants pay to each plaintiff damages for defamation in the sum of $750,000 plus interest in the amount of $78,102.74.  It was further ordered that the second and third defendants pay to each plaintiff damages for defamation in the sum of $100,000 plus interest in the amount of $10,643.84.  The plaintiffs’ claims against the fourth defendant, Nicholas Charles Cater, were dismissed. 
  2. [2]
    Directions were made for the filing of written submissions as to costs.  The plaintiffs filed written submissions on 2 October 2018 together with an affidavit of James Micallef exhibiting various offers to settle that had been exchanged between the parties both prior to and during trial.  The defendants filed written submissions on 12 October 2018 with reply submissions being filed by the plaintiffs on 17 October 2018.  The Court heard oral submissions on 19 October 2018 which resulted in further written submissions being filed by the parties on 23 October 2018[1] and 29 October 2018.[2]
  3. [3]
    The plaintiffs seek their costs of the entire action to be assessed on the indemnity basis and that no order as to costs be made in respect of Mr Cater.  The first, second and third defendants accept that they ought pay the plaintiffs’ costs of the proceedings on the standard basis.[3]  In the course of oral submissions, they further accepted that it is possible for the Court to apportion the award of costs to be paid partly on the standard basis and partly on the indemnity basis if the circumstances of the case warrant such an order.[4]  They concede that if the Court reaches the view that their conduct in respect of some issues justifies the higher award, but other conduct does not, then either an issue-by-issue apportionment or percentage-based order could be made to bring this into account.[5]  Mr Cater submits that there is no proper justification for denying his costs on the standard basis.[6]
  4. [4]
    The plaintiffs seek costs to be assessed on the indemnity basis in respect of the first, second and third defendants either:
  1. (a)
    in accordance with the special costs provisions contained in s 40 of the Defamation Act 2005 (Qld) (the Act); or
  2. (b)
    because the case presents special circumstances which warrant the Court exercising its discretion under rule 703 of the Uniform Civil Procedure Rules (UCPR).

Section 40 of the Act

  1. [5]
    Section 40 of the Act provides:

Costs in defamation proceedings

  1. (1)
    In awarding costs in defamation proceedings, the court may have regard to—
  1. (a)
    the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings); and
  1. (b)
    any other matters that the court considers relevant.
  1. (2)
    Without limiting subsection (1), a court must (unless the interests of justice require otherwise)—
  1. (a)
    if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or
  1. (b)
    if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.
  1. (3)
    In this section—

settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.”

  1. [6]
    The provisions of s 40 do not displace the Court’s power to order indemnity costs for some other reason or displace the rules of Court by which parties can obtain some protection in respect of costs by making formal offers to settle.[7]
  2. [7]
    The plaintiffs submit, and I accept, that s 40 should be construed as follows:

“Section 40 confers a wide discretion.  It confines that discretion in two specific circumstances.  The section essentially embraces two concepts:

  1. (a)
    First, in subsection (1), it confers a general, overarching discretion to determine what costs should be ordered and how the liability for costs should fall;
  1. (b)
    Secondly, in subsection (2), it restricts the discretion by requiring orders for indemnity costs to be made (though the restriction itself is qualified), in two particular situations, viz:
  1. (i)
    the defendant unreasonably failed to make a settlement offer (first limb); and
  1. (ii)
    the defendant unreasonably failed to agree to a settlement offer proposed by the plaintiff (second limb).”[8]
  1. [8]
    In Davis v Nationwide News Pty Ltd,[9] McClellan CJ at CL said of s 40(2) that it:

“Obliges parties to defamation proceedings to take a reasonable approach to negotiations for the settlement of those proceedings.  A party who unreasonably fails to make or accept a settlement offer may be ordered to pay costs on an indemnity basis.”

  1. [9]
    The application of the two limbs of s 40(2)(a) to the circumstances of the present case requires a consideration of the settlement offers exchanged between the parties.

The settlement offers

  1. [10]
    The first settlement offer was the defendants’ offer to make amends on 27 November 2015.  I dealt with this offer in the Reasons published 12 September 2018.[10]  I concluded that the offer to make amends was not, in all the circumstances, reasonable.
  2. [11]
    On 4 September 2017, the defendants made an offer to settle pursuant to Chapter 9 Part 5 of the UCPR.  The offer was that the defendants pay to each of the plaintiffs the sum of $200,000 together with costs of the proceedings to be agreed or assessed on the standard basis.[11]
  3. [12]
    On 27 April 2018, which was the Friday prior to the commencement of the trial, the solicitors for the defendants affirmed in writing an offer conveyed by Senior Counsel for the defendants to Senior Counsel for the plaintiffs on 24 April 2018.  The offer made to each plaintiff was interdependent in the sense that it required each of the four plaintiffs to accept the offer.  The offer was as follows:
  1. Judgment for the plaintiffs.
  1. The defendants to pay each plaintiff the sum of $700,000 inclusive of GST, if any.
  1. The defendants to pay the plaintiffs’ costs of the proceedings, to be agreed or assessed on the standard basis. 

The offer was stated to be made in accordance with the principles stated in Calderbank v Calderbank [1975] 3 All ER 333.[12]

  1. [13]
    On 29 April 2018, the solicitors for the plaintiffs made a counter-offer to settle on the following terms:
  1. Judgment for the plaintiffs.
  1. The defendants to pay each plaintiff the sum of $675,000 inclusive of GST, if any.
  1. The defendants to publish the apologies in the terms of, and in accordance with, an attachment to the letter of 29 April 2018.
  1. The defendants to pay the plaintiffs’ costs of the proceedings, to be agreed or assessed on the standard basis.[13]

The letter of 29 April 2018 further stated:

“If the defendants fail to accept the offer on or before 5.00 pm on Wednesday 2 May 2018, the plaintiffs intend to rely on it for the purpose of seeking an order that the defendants pay the plaintiffs costs of and incidental to the proceedings to be assessed on an indemnity basis in accordance with section 40 of the Defamation Act 2005 (Qld).”

The plaintiffs’ letter was also stated to be sent in accordance with the principles in Calderbank.

  1. [14]
    The apology sought by the plaintiffs included an acknowledgment by Mr Jones that he had “unfairly and wrongly blamed” the plaintiffs for the Grantham Flood event.  The apology required Mr Jones to unreservedly accept that all his claims and allegations against the plaintiffs were without foundation and were false.  The apology also required Mr Jones to unreservedly accept the findings of Mr Sofronoff QC (as his Honour then was) that the plaintiffs were “completely innocent of any wrongdoing”.  Mr Jones was also required to unreservedly withdraw any suggestion that the plaintiffs built the Wellcamp Airport without approvals.  The draft apology also contained the following words:

“Indeed, I go so far as to accept and acknowledge the significant contribution that the airport is making to this country for which you are to be congratulated.

I also wish to record that you are businessmen of honesty and integrity, and your family have made, and continue to make, significant contributions to Australia.

I take this opportunity to correct my errors and unreservedly withdraw my untrue allegations.  I also wish to express my sincere apology to you for the distress and embarrassment I have undoubtedly caused to you and your family.”

  1. [15]
    The letter of 29 April 2018 also annexed the form of apology required of Mr Cater and 2GB. 
  2. [16]
    By letter dated 2 May 2018, the solicitors for the defendants informed the solicitors for the plaintiffs that “the language of the apology sought by your clients as an element of the offer contained in that letter is not as such can reasonably be agreed to.”[14]  This letter identified and described as “unreasonable” the time-constraints imposed for the acceptance of the plaintiffs’ settlement offer but acknowledged as follows:

“However, the defendants continue to recognise the value in attempting to settle the proceedings, particularly given the closeness of the most recent respective offers, apart from the terms of the apology, that have been made.”

  1. [17]
    I note that the plaintiffs’ offer in the letter of 29 April 2018 was for $25,000 less than the monetary amount offered by the defendants.  Both the defendants’ and the plaintiffs’ offers were on the basis that the defendants would pay the plaintiffs’ costs to be agreed or assessed on the standard basis.  The sticking point between the parties was the terms of the apology.  While a court may take into account a defendant’s failure to apologise as a relevant consideration in assessing damages, a court cannot order a defendant to either apologise to a plaintiff or to publish an apology.
  2. [18]
    By letter dated 3 May 2018, the plaintiffs extended the time for acceptance of their offer until 5.00 pm on 7 May 2018.[15]
  3. [19]
    By letter dated 10 May 2018, the defendants informed the solicitors for the plaintiffs that Mr Cater was unable to provide an apology while the plaintiffs’ actions against him and Channel 9 concerning the same subject matter remained on foot.  The other defendants, however, offered to settle the proceedings on the terms of the plaintiffs’ offer but with a different form of apology.  The full text of this proposed apology is as follows:

“ALAN JONES APOLOGY TO THE WAGNER FAMILY

In a series of broadcasts on my program in 2014 and 2015, I repeatedly called for a reopening of the Queensland floods inquiry, which was hopelessly inadequate in addressing the Grantham floods. In doing so, I criticised the Wagner family. They were very concerned that I had suggested that they were involved in a cover up of the role their quarry played in the damage and destruction caused by the floods.

The Wagners commenced legal action against me for defamation, which you know has been before the courts.

A second inquiry into the Grantham floods took place before Walter Sofronoff QC and in October 2015, a report of that inquiry was commissioned.

In his report and in a subsequent press conference Mr Sofronoff, who now is the President of Queensland’s Court of Appeal, made it clear that the quarry operations at the Wagner quarry did not cause or contribute to the Grantham flood and the tragic events that occurred.

Mr Sofronoff said and I quote: ‘Quarry or no quarry, railway line or no railway line, 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.’

Mr Sofronoff found that the Wagners were innocent of any wrongdoing and that the quarry did not cause or contribute to the Grantham flood or the tragic deaths of 12 people. I accepted that finding at the time.

Also on numerous occasions on my radio program, I referred to the Wagners’ airport in Toowoomba. In doing so, I was highly critical of the process but I accept that the airport had all legal approvals.

Indeed, I also accept and acknowledge that the airport is making a significant contribution to this country for which the Wagner family are to be congratulated.

In the defamation proceedings, I defended some of the allegations on the basis that they were true, and then my legal team dropped some of these defences before trial. This hurt the Wagners too and I am sorry for that.

In respect of all these allegations I unreservedly apologise to the Wagner family for the distress and embarrassment my comments undoubtedly caused them.”[16]

The first limb of s 40(2)(a)

  1. [20]
    The issue is whether the defendants unreasonably failed to make a settlement offer.  At first blush, given that the defendants made offers to settle in terms of the letters of 27 April 2018 and 10 May 2018, it cannot be said that the defendants unreasonably failed to make a settlement offer so as to engage the first limb of s 40(2)(a).  The plaintiffs, however, rely on the definition in s 40(3) of “settlement offer” as meaning an offer “that was a reasonable offer at the time it was made”.  The plaintiffs submit that the mere making of an offer does not mean that the provision is engaged and that s 40(2)(a) focuses upon a defendant’s failure to make a reasonable settlement offer.[17]
  2. [21]
    The defendants’ offer of 27 April 2018 offered each plaintiff $25,000 more than the plaintiffs’ own offer of 29 April 2018.  The plaintiffs submit, however, that the defendants’ offer of 27 April 2018 was not a reasonable offer at the time it was made because it did not include an apology.  Further, according to the plaintiffs, the offer of 10 May 2018 was also not a reasonable offer at the time it was made because of the inadequacy of the apology offered.  The inadequacy of the apology is identified by the plaintiffs as follows:
  1. (a)
    the apology failed to include any reference to the 11 imputations which the defendants did not seek to defend;[18] and
  2. (b)
    the apology did not contain an expression of regret for the publications nor did it contain an unqualified acknowledgment of the falsity of the defamations and a withdrawal of them; that is, the apology provided no vindication.
  1. [22]
    The terms of the apology are, however, only one matter to take into consideration in determining whether the offers of 27 April and 10 May 2018 were reasonable at the time they were made.  As I have already observed, the offer of 27 April 2018 was made just prior to the commencement of the trial.  The offer of 10 May 2018 was made prior to Mr Jones giving evidence.  The mere fact that the offer of 27 April 2018 did not include an apology and the inadequacy of the apology offered as part of the 10 May 2018 offer does not, in my view, constitute an unreasonable failure to make a settlement offer.  Both offers constituted a genuine attempt on the part of the defendants to settle the action prior to the commencement of the trial and prior to Mr Jones giving his evidence.  The fact that both offers provided for judgment for the plaintiffs against the defendants does constitute a form of vindication for the plaintiffs.  A judgment entered by consent is still a judgment of this Court and cannot be viewed, as submitted by the plaintiffs, as “an utterly inadequate and indeed negligible vindication” of the plaintiffs’ reputations.[19]  Further, such judgment was part of a settlement offer which included a monetary amount for each plaintiff in the order of $675,000 to $700,000 which exceeded the awards of general damages in both Wilson v Bauer Media Pty Ltd[20] and Rayney v The State of Western Australia (No 9)[21]Additionally, both of the offers made by the defendants included the payment of the plaintiffs’ costs on the standard basis.  The parties’ offers were therefore in reasonably similar terms, apart from the provision and wording of an apology.
  2. [23]
    I accept the defendants’ submission that for an offer to be reasonable at the time it was made, it does not have to include an apology.[22]  As previously observed, apologies are additional to the relief that can be obtained from the Court.
  3. [24]
    It follows that, in my view, the first limb of s 40(2)(a) is not engaged and an indemnity costs order is not mandated.

The second limb of s 40(2)(a)

  1. [25]
    The plaintiffs submit that the defendants’ failure to accept their offer of 29 April 2018 was unreasonable.  The plaintiffs identify three primary reasons why this failure was unreasonable:

“First, as the Court has found, ‘given the very serious nature of the defamatory imputations, viewed objectively, the defendants faced considerable concerns in establishing any of the pleaded defence[s]’, a position in stark contrast to the plaintiff who ‘faced little risk in establishing that the matters complained of were of and concerning each of them and conveyed defamatory imputations that were very serious’.

Second, it is to be inferred that before the time at which the offer lapsed the defendants no longer sought to defend eleven imputations which in themselves warranted a substantial award of damages.

Third, for the reasons identified above, each of the defences advanced were, self-evidently, weak.  These included the truth defences which:

  1. (a)
    As directed to the Category 1 Imputations relied on highly unsatisfactory expert opinion.  That expert evidence had been carefully managed by the Court and the experts (with the exception of Dr Dam who provided his own, inadmissible, work) had completed the Joint Expert Report well in advance of the trial.  From this it was, or ought to have been, apparent to the defendants that their justification defence to the Category 1 Imputations was fundamentally defective, viz, it failed to establish any causal link between the collapse of the bund and the deaths of 12 people; and
  1. (b)
    As directed to the other four categories of imputation was properly ‘viewed as weak and unmeritorious’.”[23]
  1. [26]
    The difficulty that I have with these submissions is that the plaintiffs’ offer of 29 April 2018 was directed to all defendants, including Mr Cater, who was ultimately successful at trial.  The plaintiffs’ letter of 29 April 2018 annexed a form of apology required of Mr Cater.  The plaintiffs submit that on its proper construction the settlement letter of 29 April 2018 was capable of being accepted by the first, second and third defendants and it is therefore irrelevant that it was expressed to be also made to Mr Cater.[24]  I accept the defendants’ submissions that the 29 April 2018 letter was not obviously capable of being accepted only by the first, second and third defendants separately from Mr Cater.  It was not expressed to be in such terms, and was not reasonably open to that construction.  It required entry of judgment for the plaintiffs; and for the defendants (plural, and without exception) to pay each plaintiff a sum of money and costs, and to publish personally signed apologies.  The offer was open “to be accepted by the Defendants” until a certain time, and a failure by “the Defendants” to accept the offer was going to leave them exposed to an order that “the Defendants pay the Plaintiffs’ costs … on an indemnity basis”.[25]
  2. [27]
    The second difficulty I have with the plaintiffs’ submissions in relation to the second limb of s 40(2)(a) is that the defendants did not reject this offer outright.  To the contrary, the defendants in their letter of 10 May 2018 were willing to accept both the suggested monetary amount and costs order, but sought a reworded apology.  The fact that the parties could not ultimately agree on the wording of the apology does not, in my view, render as unreasonable the defendants’ failure to accept the plaintiffs’ offer of 29 April 2018.

Section 40(1) and Rule 703 UCPR

  1. [28]
    The relevant principles underlying an award of indemnity costs are well-established.  The relevant question is always “whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis”.[26]  An award of indemnity costs is “normally reserved to cases where the court wishes to indicate its disapproval of the conduct in the litigation of the party against whom costs are awarded”.[27]  The purpose of an indemnity costs order is to more fully compensate the successful party, not to penalise the unsuccessful party.[28]  There needs to be some special or unusual feature in the case to justify a court departing from the ordinary practice.  As stated in Di Carlo v Dubois & Ors:[29]

“Sheppard J instanced the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud; misconduct that causes loss of time to the court and the other parties; the fact that the proceedings were commenced at or continued for some ulterior motive; or in wilful disregard of known facts; or clearly established law; the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions; the imprudent refusal of an offer to compromise; and costs against a contemnor.”

  1. [29]
    The plaintiffs identify ten matters warranting the exercise of a discretion to award indemnity costs for the entire action.[30]  Most of the matters identified by the plaintiffs are relevant to the conduct of the proceedings and in particular the late abandonment by the defendants of various defences.  The tenth matter identified by the plaintiffs, however, repeats matters upon which the Court’s finding of aggravated damages was based.  These include Mr Jones continuing to assert the truth of a number of imputations, including those which were no longer sought to be justified, as well as gratuitously repeating the defamatory assertions.  The plaintiffs also rely on the Court’s findings that Mr Jones was motivated by a desire to injure the plaintiffs’ reputations and was wilfully blind to the truth or falsity of what he broadcast.  The purpose of an award of indemnity costs is not to punish a party.  These aspects of Mr Jones’ conduct have already been reflected in the Court’s assessment of general damages, which included aggravated damages.
  2. [30]
    There are, however, in my view, aspects of the defendants’ conduct which justify an assessment of a substantial part of the plaintiffs’ costs to be assessed on the indemnity basis.
  3. [31]
    The proceedings were at all relevant times subject to case management by the Court.  In spite of this supervision, the defendants on the first day of trial made substantial 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.  These changes are outlined in the Reasons at [10] to [11].  The truth defence was abandoned in relation to a number of very serious defamatory imputations, including one that the plaintiffs conspired with the then Deputy Premier Warren Truss, and Barnaby Joyce to cover-up the plaintiffs’ culpability for the deaths of people in the Grantham Flood event.  The defendants also abandoned the defences of fair comment at common law and qualified privilege under s 30 of the Act and at common law, including as to government and political matters.  On the last day of trial the defendants abandoned the defence of honest opinion under s 31 of the Act.  Further, the defendants’ position in relation to whether the 32 matters conveyed the pleaded imputations, were defamatory and were of and concerning the plaintiffs was a moving feast.  Clarification as to the defendants’ position in relation to these issues was only obtained in a schedule to the defendants’ final written submissions.
  4. [32]
    As to the actual truth defences run at trial, they were properly to be viewed as weak and unmeritorious.[31]  While I did not find that the pleading and running of these defences constituted “unjustifiable conduct” for the purposes of aggravated damages,[32] the defences were, in my view, hopeless.  As to the Category 1 Imputations, in spite of the case being supervised, Mr Dam, who produced three inadmissible reports, did not at all participate in the Joint Expert process.  The admissible expert evidence called by the defendants fell woefully short of establishing any causal connection between the collapse of the bund at the quarry and the Grantham Flood event.  Although Dr Smart did not give evidence at the Grantham Floods Inquiry, it remains the case that the defendants persisted in seeking to justify the Category 1 Imputations, notwithstanding the findings of two Commissions of Inquiry headed by lawyers of eminent standing.  This was in circumstances where none of the defendants’ experts sought to develop a two dimensional flood model of the Grantham Flood event.
  5. [33]
    As to the Category 2 Imputations, the defendants abandoned the truth defence in relation to 11 of these imputations.  As to the Category 3 Imputations, the truth defence failed at the threshold because the alleged conduct could not amount to bullying or intimidation.  Further, the conduct relied on by the defendants in respect of the Category 5 imputation could not justify the pleaded meaning.[33]
  6. [34]
    In relation to the defence of fair reporting of proceedings of public concern, the defendants failed to make submissions as to why the relevant matters were fair reports and moreover, failed to tender the transcripts of the Grantham Floods Inquiry.[34]
  7. [35]
    While it is conceivable that orders for indemnity costs could be made on an issue by issue basis, such an assessment would involve a “complexity” that would produce “a most unattractive outcome”.[35]  The defendants submit that if the Court reaches the view that apportionment of the proceedings in respect of indemnity costs and standard costs is appropriate, then the mere fact that such an assessment may be complex does not constitute a sufficient reason not to so apportion.[36] 
  8. [36]
    It is a reasonable conclusion that the defendants’ conduct has caused the plaintiffs to incur unnecessary and wasted costs in preparing for a trial.[37]  The appropriate order is, in my view, to compensate the plaintiffs with an indemnity costs order up to but not including the first day of trial, with costs on the standard basis thereafter.

Mr Cater

  1. [37]
    The plaintiffs’ claims against Mr Cater having been dismissed, costs should follow the event.  The plaintiffs submit, however, that the Court should depart from the general rule primarily because the matters involving Mr Cater took up very little time at trial and he had identical legal representation as the other defendants at trial.  These, however, are matters that are properly to be taken into account on any assessment of Mr Cater’s costs.  To the extent it is suggested that Mr Cater, together with the other defendants, is responsible for wasted costs, the plaintiffs are compensated for such waste by the costs order made in relation to the first, second and third defendants.

Disposition

  1. [38]
    I order:
  1. that the first, second and third defendants pay the first, second, third and fourth plaintiffs’ costs of the proceedings:
  1. (a)
    to but not including 30 April 2018, to be assessed on the indemnity basis; and
  1. (b)
    thereafter from and including 30 April 2018, to be assessed on the standard basis.
  1. the first, second, third and fourth plaintiffs pay the fourth defendant’s costs of the proceedings.

 

Footnotes

[1]  Plaintiffs’ Supplementary Submissions on Costs.

[2]  Defendants’ Submissions in Reply.

[3]  Defendants’ Submissions as to Costs, paragraph 1.

[4]  Transcript, 19 October 2018, 1-17, 3-8

[5]  Defendants’ Submissions in Reply, paragraph 1.

[6]  Defendants’ Submissions as to Costs, paragraph 2.

[7] Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19 at [70] per Applegarth J.

[8]  Plaintiffs' Submissions on Costs, paragraph 10.

[9]  [2008] NSWSC 946 at [27].

[10] Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201 at [715] to [728] (Reasons).

[11]  Affidavit of James Micallef, sworn 2 October 2018, Exhibit “JM-I”.

[12]  Affidavit of James Micallef, Exhibit “JM-2.”

[13]  Affidavit of James Micallef, Exhibit “JM-3”.

[14]  Affidavit of James Micallef, Exhibit “JM-4”.

[15]  Affidavit of James Micallef, Exhibit “JM-5”.

[16]  Affidavit of James Micallef, Exhibit “JM-7”.

[17]  Plaintiffs’ Submissions on Costs, paragraphs 22 to 23.

[18]  Plaintiffs’ Submissions on Costs, paragraph 30; Reasons at [435].

[19]  Plaintiffs’ Submissions in Reply, paragraph 3.

[20]  [2017] VSC 521 at [393].

[21]  [2017] WASC 367 at [969].

[22]  Defendants’ Submissions as to Costs, paragraph 7.

[23]  Plaintiffs’ Submissions on Costs, paragraphs 45 to 47.

[24]  Plaintiffs’ Submissions on Costs, paragraph 36.

[25]  Defendants’ Submissions as to Costs, paragraph 13.

[26] Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234.

[27] Raja v Rubbin [2000] Ch 274 at 289.

[28] Gallagher International Ltd v TLAIS Enterprises Ltd [2008] EWHC 2046 (Comm) at [27].

[29]  [2002] QCA 225 at [37] per White J (with whom Williams JA and Wilson J agreed)

[30]  Plaintiffs’ Submissions on Costs, paragraphs 57 to 77.

[31]  Reasons at [850].

[32]  Reasons at [851].

[33]  Reasons at [688]-[689] and [695].

[34]  Reasons at [705]; Plaintiffs’ Submissions on Costs, paragraph 74.

[35] Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in Liq) & Ors (No 2) [2017] QSC 266 at [5] per Bond J; Plaintiffs’ Supplementary Submissions on Costs, paragraph 16.

[36]  Defendants’ Submissions in Reply, paragraph 8.

[37]  Senior Counsel for the defendants accepted that there are wasted costs incurred when parties amend their case late in the proceedings: Transcript, 19 October 2018, 1-18, lines 6-9.

Close

Editorial Notes

  • Published Case Name:

    Wagner & Ors v Harbour Radio Pty Ltd & Ors

  • Shortened Case Name:

    Wagner v Harbour Radio Pty Ltd (No 2)

  • MNC:

    [2018] QSC 267

  • Court:

    QSC

  • Judge(s):

    Flanagan J

  • Date:

    16 Nov 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 267 16 Nov 2018 Costs Judgment: Flanagan J.

Appeal Status

No Status