Harbour Radio Pty Limited & Ors v Wagner & Ors

The grant of an injunction against a media organisation to restrain republication of defamatory matter or imputations is said to be exceptional. There must be proof of a sufficient risk that repetition will take place. In this case, the Court of Appeal considered that the findings of the trial judge “established an overwhelming case” for injunctions having this effect.

Fraser and Morrison JJA and Burns J

18 October 2019

The appellants were a radio presenter (Mr Jones) and two radio stations which broadcast Mr Jones’ programmes. The trial judge found that, between October 2014 and August 2015, Mr Jones made a total of 80 defamatory imputations about the respondents in 29 separate matters that were broadcast by the appellant radio stations. [1]. His Honour awarded damages and granted injunctions restraining each of the appellants from again publishing the defamatory matter or any defamatory imputation that did not differ in substance from the defamatory imputations conveyed by the publications (see [2018] QSC 201; [2018] 38 QLR). [2].

The appellants appealed solely against the grant of the injunctions. [2]–[3]. They submitted that there were no grounds for granting the injunctions. [49]. It was argued that there needed to be specific proof of some additional factor that evidenced a risk of republication. [52]. They contended that aggravating features of the defamation, including a finding of malice, were relevant solely to aggravated damages and were not relevant to the risk of republication. [52]–[53].

The Court of Appeal (Fraser JA; Morrison JA and Burns J agreeing) rejected these submissions. Justice Fraser accepted that in many cases where an injunction is sought the past publication of the defamatory matter may be outweighed by the conventional expectation that journalists and media organisations will not republish matter found to be defamatory. [54]. However, the features of this case meant that, despite the judgment and damages award, there was a real risk that Mr Jones may repeat the matter or imputations in programmes broadcast by the appellants. [54]. This risk could be inferred from the apparent strength of his motive to injure the respondents’ reputations, which was reflected in Mr Jones’ conduct while giving evidence. [54]–[57]. The magnitude of harm that would result from republication also supported granting the injunctions. [58].

Justice Fraser observed that:

“The values of free speech and freedom of the press are important in the law. Those values inform the defamation legislation with reference to which the trial proceeded. The trial having concluded in a judgment in favour of the respondents from which there has been no appeal on the merits, significance now must be accorded to the finality of that judgment. The injunctions operate in substance only to prevent the appellants from again publishing that which already has been found to be defamatory.” [59].

Contrary to the appellant’s submissions, the injunctions did not create an incidental restriction upon criticism of the trial judgment, other than to the extent they prevented repetition of the defamatory matter or imputations. [59]. Ultimately, Fraser JA concluded that: “… the trial judge’s findings … established an overwhelming case for the injunctions despite the exceptional character of such orders in a claim against a professional journalist and a media organisation”. [60].

The remaining submissions related to the injunctions directed at the radio stations themselves. It was argued that these were inappropriate as the injunction against Mr Jones would restrain any republication. His Honour held, however, that the particular findings and the lack of editorial oversight over Mr Jones made this case different from cases where injunctions had not been granted against media organisations. [64]–[65].

Furthermore, Fraser JA considered that the fact the injunctions extended to conduct by employees or agents of the radio stations was conventional. [67]. This wording did not restrain the conduct of employees or agents. [67]. It merely drew attention to the fact the organisations could fail to comply with the injunctions by the actions of its employees or agents. [68]. The injunctions required the radio stations to take steps to ensure they did not breach the injunctions, including by ensuring that employees and agents were familiar with them. [67]–[68]. The fact this may result in costs and inconvenience did not make the injunctions inappropriate. [68]. Additionally, the radio stations were also entitled to apply to discharge the injunctions if they were no longer appropriate. [68].

Justice Fraser also rejected challenges to the trial judge’s finding that Mr Jones continued to attack the respondents’ reputations while giving evidence ([23]–[37]) and to the adequacy of the trial judge’s reasons for granting the injunctions. [38]–[48].

In the result, the appeal was dismissed with costs. [70].

S Walpole