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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 Supreme Court at Brisbane
COURT:
DELIVERED ON: 12 September 2018
DELIVERED AT: Brisbane
HEARING 30 April-4 May, 8-11 May, 14-15 May, 17-18 May,
DATES: 21-25 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
2

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:
(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
(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:
(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
(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:
3

(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
(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:
(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
(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.
4

9. The second defendant is permanently restrained, by


himself and/or his servants or agents, from publishing
or causing to be published:
(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
(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:
(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
(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.
5

Injunction
13. The first defendant is permanently restrained, by itself
and/or its servants or agents, from publishing or
causing to be published:
(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
(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:
(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
(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:
(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
(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
6

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:
(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
(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:
(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
(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.
7

20. The third defendant is permanently restrained, by


itself and/or its servants or agents, from publishing or
causing to be published:
(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
(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
8

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]
9

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
10

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 ............................................................................................................................ 14
The issues ................................................................................................................................ 15
Background ............................................................................................................................. 18
The First Matter ..................................................................................................................... 21
Second Matter ......................................................................................................................... 26
Third Matter ........................................................................................................................... 31
Fifth Matter ............................................................................................................................ 34
Sixth Matter ............................................................................................................................ 38
Seventh Matter ....................................................................................................................... 40
Eighth Matter ......................................................................................................................... 43
Ninth Matter ........................................................................................................................... 45
Tenth Matter ........................................................................................................................... 48
Eleventh Matter ...................................................................................................................... 51
Mr Cater’s liability ............................................................................................................... 55
Twelfth Matter........................................................................................................................ 61
Fourteenth Matter .................................................................................................................. 63
Fifteenth Matter ..................................................................................................................... 66
Sixteenth Matter ..................................................................................................................... 68
Seventeenth Matter ................................................................................................................ 69
Eighteenth Matter .................................................................................................................. 72
Nineteenth Matter .................................................................................................................. 75
Twentieth Matter.................................................................................................................... 76
Twenty-First Matter .............................................................................................................. 78
Twenty-Second Matter .......................................................................................................... 80
Twenty-Third Matter ............................................................................................................. 83
Twenty-Fourth Matter ........................................................................................................... 85
Twenty-Fifth Matter .............................................................................................................. 88
Twenty-Sixth Matter .............................................................................................................. 91
Twenty-Seventh Matter ......................................................................................................... 92
Twenty-Eighth Matter ........................................................................................................... 96
Twenty-Ninth Matter ............................................................................................................. 99
Thirtieth Matter ................................................................................................................... 101
Thirty-First Matter .............................................................................................................. 103
Thirty-Second Matter .......................................................................................................... 106
Thirty-Third Matter ............................................................................................................ 111
Thirty-Fourth Matter .......................................................................................................... 112
12

Conclusion – Imputations Conveyed .................................................................................. 114


Defence of substantial truth or justification – section 25 of the Act ................................ 116
Category 1 – the plaintiffs’ responsibility for the role played by the quarry in
the Grantham Flood event .................................................................................................. 116
The expert evidence ...................................................................................................... 118
(a) Dr Smart ................................................................................................................ 120
(b) Dr Maroulis ........................................................................................................... 132
(c) Mr Dam ................................................................................................................. 134
(d) Dr Newton ............................................................................................................. 141
(e) The eyewitnesses ................................................................................................... 148
(f) Conclusion – Truth Defence – Category 1 ............................................................ 157
Category 2 – the plaintiffs engaged in conduct designed to cover up the role
played by them and the quarry in the Flood event ............................................................. 157
Category 3 – the plaintiffs were involved in bullying and intimidation ............................ 167
Category 4 – the plaintiffs constructed and operated the Wellcamp Airport in
breach of all the rules ......................................................................................................... 172
(a) No approvals obtained under the Environmental Protection and Biodiversity
Conservation Act 1999 (Cth) (“the EPBC”). ................................................................ 175
(b) Public criticism and formal objections .................................................................. 176
(c) Expert town planning evidence ............................................................................. 176
Category 5 – the plaintiffs are self-interested and greedy .................................................. 181
Defence of fair report of proceedings of public concern – section 29 of the Act ............ 185
Defence of contextual truth – section 26............................................................................. 191
Failure to accept reasonable offer to make amends – section 18 ..................................... 193
Damages ................................................................................................................................ 198
A single sum – section 39 .................................................................................................. 198
The plaintiffs’ claim for damages ...................................................................................... 199
(a) General damages – principles................................................................................ 199
(b) Aggravated damages – principles ......................................................................... 201
(c) The plaintiffs’ reliance on 53 prior broadcasts ...................................................... 204
(d) Section 35 – statutory cap ..................................................................................... 207
General Damages.................................................................................................................. 209
(a) The plaintiffs’ reputations ............................................................................................. 209
(b) Extent of publication .................................................................................................... 211
(c) Seriousness of the imputations ..................................................................................... 216
(d) Hurt to feelings ............................................................................................................. 217
Aggravated damages ............................................................................................................ 222
13

(a) Unjustifiable conduct .................................................................................................... 223


(i) Circumstances of the Publications ......................................................................... 223
(ii) Conduct of the proceedings ................................................................................... 231
(b) Mr Jones’ motive to injure the plaintiffs’ reputations .................................................. 235
(c) Increased harm to the plaintiffs’ feelings and reputations ............................................ 239
Mitigation .............................................................................................................................. 240
Assessment of Damages ....................................................................................................... 244
Interest................................................................................................................................... 248
Injunction .............................................................................................................................. 248
Disposition ............................................................................................................................. 248
(a) First Plaintiff ................................................................................................................. 248
As against the first defendant and second defendant .................................................... 248
As against the second defendant and the third defendant ............................................. 249
Injunction ...................................................................................................................... 249
(b) Second Plaintiff ............................................................................................................ 250
As against the first defendant and second defendant .................................................... 250
As against the second defendant and the third defendant ............................................. 250
Injunction ...................................................................................................................... 250
(c) Third Plaintiff ............................................................................................................... 251
As against the first defendant and second defendant .................................................... 251
As against the second defendant and the third defendant ............................................. 251
Injunction ...................................................................................................................... 251
(d) Fourth Plaintiff ............................................................................................................. 252
As against the first defendant and second defendant .................................................... 252
As against the second defendant and the third defendant ............................................. 252
Injunction ...................................................................................................................... 252
(e) First, Second, Third and Fourth Plaintiffs .................................................................... 253
ADDENDUM ............................................................................................................................ 1
Attachment 1 ............................................................................................................................. 1
Attachment 2 ............................................................................................................................. 2
Attachment 3 ............................................................................................................................. 5
Attachment 5 ........................................................................................................................... 10
Attachment 6 ........................................................................................................................... 12
Attachment 7 ........................................................................................................................... 13
Attachment 8 ........................................................................................................................... 16
Attachment 9 ........................................................................................................................... 17
14

Attachment 10 ......................................................................................................................... 19
Attachment 11 ......................................................................................................................... 20
Attachment 12 ......................................................................................................................... 26
Attachment 14 ......................................................................................................................... 28
Attachment 15 ......................................................................................................................... 31
Attachment 16 ......................................................................................................................... 32
Attachment 17 ......................................................................................................................... 34
Attachment 18 ......................................................................................................................... 37
Attachment 19 ......................................................................................................................... 38
Attachment 20 ......................................................................................................................... 39
Attachment 21 ......................................................................................................................... 40
Attachment 22 ......................................................................................................................... 41
Attachment 23 ......................................................................................................................... 43
Attachment 24 ......................................................................................................................... 47
Attachment 25 ......................................................................................................................... 53
Attachment 26 ......................................................................................................................... 56
Attachment 27 ......................................................................................................................... 57
Attachment 28 ......................................................................................................................... 64
Attachment 29 ......................................................................................................................... 66
Attachment 30 ......................................................................................................................... 68
Attachment 31 ......................................................................................................................... 70
Attachment 32 ......................................................................................................................... 71
Attachment 33 ......................................................................................................................... 79
Attachment 34 ......................................................................................................................... 80
Attachment 35 ......................................................................................................................... 81
Imputations Conveyed .......................................................................................................... 81

Introduction

[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.

1
The one exception is the Nineteenth Matter, which was published by the second defendant on Sky News in the
course of the Richo + Jones Program and subsequently uploaded by the first defendant to the 2GB Website at
www.2gb.com.
15

[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] 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] The fourth defendant, Nicholas Cater, is a journalist and an occasional guest of Mr Jones
on the Jones Program.

[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:
(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
(b) Mr Jones admits he published each of the 32 matters complained of;5
(c) 4BC admits that it is responsible for the publication of the Fifth and Sixth Matters;6
and
(d) Mr Cater admits publication of the words attributed to him in the Eleventh Matter.7

The issues

[6] The publication of each of the 32 matters complained of constitutes a separate cause of
action8 requiring independent consideration.9

[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

2
T 12-3, lines 43; T12-4, lines 1-6.
3
T 12-6, lines 29-30.
4
SFASC, paragraphs 6(g), 22, 26 and FFAD, paragraph 2(f).
5
SFASC, paragraph 7(c) and FFAD, paragraph 4(b)(ii).
6
SFASC, paragraph 8(e) and FFAD, paragraph 6(e).
7
FFAD, paragraph 4(b)(iv).
8
Section 8 of the Defamation Act 2005 (Qld).
9
There were originally 34 broadcasts, but the plaintiffs no longer rely on the fourth and thirteenth broadcasts;
SFASC, Attachments 1 to 34.
10
Wagners & Ors v Harbour Radio Pty Ltd & Ors [2017] QSC 222. The proceeding was case managed by
Applegarth J as part of the Supervised Case List.
11
Wagners & Ors v Harbour Radio Pty Ltd & Ors [2017] QSC 222 at [75].
16

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.

[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

2. whether the imputations, if conveyed, are defamatory;15

3. 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

4. whether the defence of contextual truth under s 26 of the Act is available.17 This
gives rise to the following sub-issues:

(a) did the relevant matter carry, in addition to the defamatory imputations of
which the plaintiffs complain, the following contextual imputations:

(i) the plaintiffs conduct business on their own terms, with disregard for
the laws that regulate them; and

(ii) the plaintiffs conduct business on their own terms, with disregard for
the impact operations have on the broader community;

(b) are the contextual imputations, if conveyed, substantially true;

(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;

5. 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:

12
The original “Issues for Determination” document was 91 pages and reduced in the course of the trial to a final
version of 36 pages.
13
Fifth, Eighteenth and Twenty-Second Matters.
14
In respect of eight matters complained of.
15
In respect of 13 imputations.
16
In respect of 72 imputations.
17
In respect of six matters.
18
In respect of 11 matters.
17

(a) was the relevant matter a fair report (or contained within a fair report) of a
proceeding of public concern; and

(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?

[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 sub-issues:

(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

(b) was the offer reasonable in all the circumstances.

2. the assessment of damages, including whether the plaintiffs are entitled to


aggravated damages and whether there are mitigating factors.

[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.

[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

[12] On the final day of the trial, the defendants also abandoned the defence of honest opinion
under s 31 of the Act.21

19
Section 30(1)(c) of the Defamation Act 2005 (Qld).
20
SFASC, paragraph 73(a); FFAD deleted paragraphs 141(a)(i)(3), 141(a)(ii)(4), Attachment A – truth,
paragraph 1(l).
21
T 23-3, line 46 to T 23-4, line 4.
18

Background

[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.

[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.

[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.

[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.

[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

[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

[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.

22
T 1-34, lines 5-9; Exhibit 20, TB Vol 14, Tabs 622 and 623.
23
T 1-34, lines 26-31.
24
Exhibit 40, Town Planning Report of Mr Greg Ovenden, 29 November 2017, page 7, paragraph 2.1.1 and
page 8, paragraph 2.2.1.
25
T 16-66, lines 12-31.
26
T 3-38, lines 25-43.
19

[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”).

[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.

[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

[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”).

[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:
(a) the quarry mitigated the impact of flooding by reducing peak flood levels by
between 0.04 and 0.1 metres;
(b) peak flood velocities in Grantham were not affected;
(c) the quarry attenuated the flows, causing a five-minute delay in the water rise; and
(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

[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:

27
Exhibit 17, Report of Dr David Newton, 16 March 2018, page 29, [40] (Attachment 6 to Exhibit 15, Joint
Expert Report).
28
T 14-79, lines 40-47.
29
T 12-3, lines 24-25.
30
Defendants’ Outline of Argument – Part 1, [138].
20

(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;
(b) whether the existence or breach of the Grantham quarry caused or contributed to
the flooding at Grantham;
(c) whether the existence or breach of the Grantham quarry had a material impact on
the damage caused by the flooding at Grantham;
(d) whether the breach of the Grantham quarry had implications for evacuation of
Grantham; and
(e) how these matters were first investigated and how eyewitness accounts were dealt
with, particularly by state government agencies and emergency services.31

[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:
(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;
(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;
(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;
(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;
(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

31
Exhibit 20, TB Vol 3, Tab 152, Grantham Floods Commission of Inquiry Report, October 2015, Terms of
Reference, page 221.
32
Exhibit 20, TB Vol 3, Tab 152, Grantham Floods Commission of Inquiry Report, October 2015, page 86,
paragraphs 81 and 82; page 87, paragraphs 83 and 84; page 88, paragraph 100.
21

[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.

[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

[29] The First Matter was broadcast on radio 2GB on 28 October 2014 commencing at
approximately 8.12 am.

[30] Attachment 1 to these Reasons is a transcript of the words spoken by Mr Jones.33

[31] 2GB and Mr Jones admit that the First Matter was of and concerning each of the
plaintiffs.34

[32] It is in issue whether the imputations are conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(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
(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

[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

33
Apart from typographical errors, the transcript is admitted: FFAD 9(a). Transcripts of the matters complained
of are reproduced in these Reasons with original typographical errors intact.
34
Amended Attachment A to the Defendants’ Outline of Argument – Part 1.
35
SFASC, paragraph 12.
36
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [11] and [17].
37
Jones v Skelton [1963] 1 WLR 1362 at 1371 per Lord Morris.
22

understood.38 How the ordinary reasonable listener determines meaning is “a matter of


impression”.39

[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 Marsden40 as follows:
(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;
(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;
(c) the mode or manner of publication is a material matter in determining whether the
imputation is conveyed;
(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;
(e) the ordinary reasonable person considering such a publication is understandably
prone to engage in a certain amount of loose thinking;
(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;
(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
(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.

[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,

38
Plaintiffs’ Submissions, [73].
39
Lewis v Daily Telegraph Ltd [1964] AC 234 at 260, 281 and 285 per Lord Diplock.
40
(1998) 43 NSWLR 158 at 165-167.
41
(1998) 43 NSWLR 158 at 166.
23

headings and captions is a legitimate matter that readers do and


are entitled to take into account.’
79. 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.
80. 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.’
81. Lord Keith characterised this (in the same passage) as being ‘anxious
to wound but fearful to strike too obviously’.
82. 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.’
83. 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.’
84. 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

42
Plaintiffs’ Submissions, [78]-[84].
24

[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

[37] In determining whether the imputations are conveyed I have remained mindful of this
danger.

[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.”

[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.

[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

43
[2017] WASC 367 at [87].
44
(1998) 193 CLR 519 at 546 per Gaudron and Gummow JJ; see also David Syme & Co v Hore-Lacy (2000)
1 VR 667 at 674, 686 and 690.
45
Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 at 152 and Hockey v Fairfax Media Publications
Pty Ltd (2015) 332 ALR 257 at [73]; Plaintiffs’ Submissions, [88].
25

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

[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.

[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”,

46
Defendants’ Outline of Argument – Part 2, [4].
47
Defendants’ Outline of Argument – Part 2, [4].
48
Plaintiffs’ Submissions, [109]-[110].
26

“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.

[43] The defendants’ submission that the Wagners, at most, are the beneficiaries of a cover-up
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

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

Second Matter

[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.

[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

[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

49
Plaintiffs’ Submissions, [110].
50
Third, Eighth, Fourteenth, Twenty-First, Twenty-Second and Thirty-Fourth Matters.
51
Defendants’ Outline of Argument – Part 2, [12].
52
Plaintiffs’ Submissions, [53]-[54], citing David Syme & Co v Canavan (1918) 25 CLR 234 at 238 per Isaacs J;
Jones v E Hulton & Co [1909] 2 KB 444 at 477 per Lord Farwell; and Universal Communication Network Inc
trading as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd & Chan [2008] NSWCA 1 at [42].
53
[1974] 2 NSWLR 348 at 364.
54
Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570 at [130]; Morgan v Odhams Press Ltd [1971] 1 WLR
1239 at 1245.
55
Plaintiffs’ Submissions, [62].
27

[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”.

[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”.

[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:
(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’;
(ii) the ‘community’ referred to in particular (i) comprises people
throughout Australia, Queensland and the Toowoomba region;
(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
56
Defendants’ Outline of Argument – Part 2, [13].
57
[1971] 1 WLR 1239 at 1254.
58
Exhibit 20, TB Vol 1, Tabs 34-70, TB Vol 2, Tabs 71-104.
28

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

[51] It is in issue whether the imputations are conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(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
(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

[52] The plaintiffs do not rely on any extrinsic fact of previous broadcasts in submitting that
the Second Matter carried the two pleaded imputations.

[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.

[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).

[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.

59
Plaintiffs’ Submissions, [120].
60
Plaintiffs’ Submissions, [121].
61
Plaintiffs’ Submissions, [138].
62
SFASC, paragraph 15.
29

[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.”

[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.”

[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”.

[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
30

Commission because some of Rickuss’ best mates may well have been
involved in the cover up.”

[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.”

[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.

[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.

[63] I determine that the imputations conveyed by the Second Matter are that each of the first,
second, third and fourth plaintiffs:

63
Defendants’ Outline of Argument – Part 2, [19].
64
Defendants’ Outline of Argument – Part 2, [20].
31

(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;
(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.

[64] There is no issue that the imputations conveyed are defamatory.

Third Matter

[65] It is in issue whether the Third Matter is of and concerning the plaintiffs.

[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.

[67] It is in issue whether the imputations are conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:

(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

(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

65
SFASC, paragraph 18.
32

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.

[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
time-worn 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

[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.”

[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.”

[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.

66
Plaintiffs’ Submissions, [151].
33

[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

[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.

[74] I therefore find that imputation (a) rather than the alternative imputation (bb) was
conveyed.

[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.

67
Plaintiffs’ Submissions, [157].
68
Defendants’ Outline of Argument – Part 2, [35].
34

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.”

[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.

[77] I therefore find that the Third Matter conveyed imputation (a).

[78] There is no issue that, if conveyed, imputation (a) is defamatory of each of the plaintiffs.

Fifth Matter

[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.

[80] It is not in dispute that the matter is of and concerning each of the plaintiffs.

[81] It is in issue whether the imputations are conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(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
(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.69

[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

69
SFASC, paragraph 24(a) and (b).
35

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
(a) the town of Grantham experienced a flood disaster which resulted in the deaths of
many people;
(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;
(c) Mr Jones’ previous allegations were made:
(i) in the First, Second and Third Matters complained of; and
(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
(d) a further inquiry into the Grantham flood disaster had been announced by the
Queensland Government.

[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.”

[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.

70
SFASC, paragraph 24, Particulars of extrinsic facts.
36

[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.

[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 am73 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

[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.

[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:

71
Plaintiffs’ Submissions, [179].
72
Plaintiffs’ Submissions, [180].
73
Exhibit 20, TB Vol 5, Tab 212 at pages 7-11; SFASC, paragraph 24(b)(iv)(B).
74
Exhibit 20, TB Vol 5, Tab 213 at page 3; SFASC, paragraph 24(b)(iv)(C).
75
Nixon v Slater & Gordon (2000) 175 ALR 15 at [42].
76
Plaintiffs’ Submissions, [86] citing Wright v Caan [2011] EWHC 1978 (QB) at [26]; Grapelli v Derek Block
(Holdings) Ltd [1981] 1 WLR 822 and McAlpine v Bercow [2013] EWHC 1342 (QB) at [54].
77
[1940] 2 KB 507 at 515; Defendants’ Outline of Argument – Part 2, [53].
37

“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.

[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.

[90] Both imputations are conveyed.

[91] There is no issue that, if conveyed, the imputations are defamatory of each of the
plaintiffs.

[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.

78
Wright v Caan [2011] EWHC 1978 (QB) at [26] referring to Grapelli v Derek Block (Holdings) [1981] 1 WLR
822 at page 830A-C per Lord Dunn.
38

Sixth Matter

[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.

[94] There is no issue that the matter is of and concerning each of the plaintiffs.

[95] It is in issue whether the imputations are conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(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;
(b) had constructed an airport in Toowoomba and had broken all the rules in the
construction of the airport.79

[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”.

[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

[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”

79
SFASC, paragraph 28.
80
Defendants’ Outline of Argument – Part 2, [58].
81
Defendants’ Outline of Argument – Part 2, [59].
82
Lewis v Daily Telegraph Ltd [1964] AC 234 at 260, 281 and 285.
39

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.

[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.

[100] The second imputation is conveyed by the actual words used by Mr Jones.

[101] Both imputations are conveyed.

[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

[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

[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.

83
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [11].
84
Defendants’ Outline of Argument – Part 2, [64].
85
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 473 and 484.
86
Plaintiffs’ Submissions, [90].
40

[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

[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.

[107] 2GB and Mr Jones admit that the Seventh Matter is of and concerning the plaintiffs.

[108] It is in issue whether the imputations are conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(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;
(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;
(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
(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

[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

87
SFASC, paragraph 31.
41

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.”

[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.

[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

88
Plaintiffs’ Submissions, [199].
89
Plaintiffs’ Submissions, [209].
90
Defendants’ Outline of Argument – Part 2, [34].
42

such conjecture and is liable for conclusions that an ordinary reasonable listener may
reach as a result of that invitation.91

[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.

[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

[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.

[115] I determine that the imputations carried by the Seventh Matter are that each of the first,
second, third and fourth plaintiffs:

91
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [11].
92
Plaintiffs’ Submissions, [211].
93
Defendants’ Outline of Argument – Part 2, [74].
94
Plaintiffs’ Submissions, [212] and [213].
43

(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;
(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
(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.

[116] 2GB and Mr Jones admit that if these imputations are conveyed they are defamatory.

Eighth Matter

[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.

[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

[119] For the reasons stated in [47] to [50] above, the Eighth Matter was of and concerning each
of the plaintiffs.

[120] It is in issue whether the imputations are conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(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
(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

[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:

95
Plaintiffs’ Submissions, [220]-[221].
96
SFASC, paragraph 34.
44

“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.”

[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.

[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.

[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
97
Defendants’ Outline of Argument – Part 2, [88].
45

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.

[125] Imputation (b) is not conveyed.

[126] I therefore determine that the following imputation was conveyed by the Eighth Matter
complained of:
(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.

[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.

[128] In respect of imputation (a) (and similar imputations conveyed by earlier broadcasts), the
defendants accept100 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

[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.

98
Defendants’ Outline of Argument – Part 2, [90(b)].
99
Defendants’ Outline of Argument – Part 2, [42].
100
T 22-20, line 35 to T 22-22 line 15; T 22-63, lines 15-26.
101
Exceptions to this are the Twelfth Matter and the Twenty-Fourth Matter discussed below.
46

[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”.

[131] It is in issue whether the imputations are conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(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;
(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;
(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;
(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
(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

[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.”

[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.”

[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

102
SFASC, paragraph 37.
47

know the quarry was man-made.” 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”.

[135] I accept the plaintiffs’ submission that Mr Jones’ tone is determined, indignant and
accusing. When mentioning the plaintiffs his tone is contemptuous.103

[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.

103
Plaintiffs’ Submissions, [241].
104
Plaintiffs’ Submissions, [246].
48

[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”.

[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.

[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.

[140] I determine that each of the five pleaded imputations are conveyed.

[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

[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.

[143] There is no issue that the Tenth Matter is of and concerning each of the plaintiffs.

[144] It is in issue whether the imputations are conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(a) built an airport without seeking proper approvals which he knew were required with
disgraceful disregard for the interests of the community;
(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;
(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
49

(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

[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.”

[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?”

[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.

[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

105
SFASC, paragraph 40.
50

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

[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”.

[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.

[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.

[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 –
106
Defendants’ Outline of Argument – Part 2, [117].
51

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.

[153] I determine that each of the four pleaded imputations are conveyed.

[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

[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.

[156] It is not in issue that the Eleventh Matter is of and concerning the plaintiffs.

[157] It is in issue whether the imputations were conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(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;
(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;
(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;
(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
(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

107
Defendants’ Outline of Argument – Part 2, [119].
108
SFASC, paragraph 43.
52

[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.

[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.”

[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.”

[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.”

[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.
53

[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.

[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.

[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).

109
Defendants’ Outline of Argument – Part 2, [133].
110
Plaintiffs’ Submissions, [278].
111
Defendants’ Outline of Argument – Part 2, [134].
54

[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.”

[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.

[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.”

[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.”

[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

112
The equivalent imputations for the Tenth Matter are imputations (b), (c) and (d); see [150]-[152] above.
55

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.

[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

[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.

[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

[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”.

[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 Bloch117
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.’”

113
SFASC, Particulars to paragraph 43.
114
Plaintiffs’ Submissions, [270].
115
FFAD, paragraph 4(b)(iv).
116
Plaintiffs’ Submissions, [288]-[289] and [303].
117
(1928) 41 CLR 331 at 363-364 (emphasis in original).
56

[176] The plaintiffs identify five matters by which it is alleged that Mr Cater conduced to the
publication of the Eleventh Matter.

[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.”

[178] Second, Mr Cater sent Mr Jones a six page letter dated 14 October 2014120 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.

118
Exhibit 20, TB Vol 8, Tab 382.
119
Plaintiffs’ Submissions, [291].
120
Exhibit 20, TB Vol 8, Tab 383.
57

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.”

[179] Third, Mr Cater appeared as a guest on Mr Jones’ program on 15 October 2014.

[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.”

121
Exhibit 20, TB Vol 8, Tab 384.
58

[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.”

[182] The plaintiffs submit that these communications demonstrate that Mr Cater was a
long-time 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

[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.

122
Exhibit 20, TB Vol 8, Tab 383.
123
Plaintiffs’ Submissions, [296]-[297].
59

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)

[184] From this passage the plaintiffs make the following submissions:
(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;
(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;
(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.

[185] I have set out the plaintiffs’ submissions in some detail because I have difficulty in
accepting them.

[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).

[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

124
Plaintiffs’ Submissions, [303].
60

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.

[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.

[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.

[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:

125
Plaintiffs’ Submissions, [300].
126
Defendants’ Outline of Argument – Part 2, [136(c)].
127
Exhibit 20, TB Vol 8, Tab 383.
61

“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

[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.”

[192] I find that Mr Cater:


(a) neither expressly nor impliedly agreed with or adopted Mr Jones’ words which
conveyed imputation (c);
(b) did not conduce to the publication of the words spoken by Mr Jones which
conveyed imputation (c).

[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

[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.

[195] 2GB and Mr Jones concede that the Twelfth Matter is of and concerning each of the
plaintiffs.

[196] It is in issue whether the imputations were conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(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
(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

128
Attachment 3 to these Reasons, transcript of the broadcast by radio 2GB on 29 October 2014 at approximately
7.22 am.
129
All further references in these Reasons to ‘the defendants’ are to be read as meaning only the first, second and
third defendants.
130
SFASC, paragraph 46.
62

[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.”

[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.

131
Plaintiffs’ Submissions, [311].
132
Plaintiffs’ Submissions, [311].
133
(1982) 149 CLR 293 at 300.
134
Defendants’ Outline of Argument – Part 2, [148].
63

Fourteenth Matter

[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.

[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”.

[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?”

[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.

[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”.

[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.”

[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.”
64

 “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.”

[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”.

[207] It is in issue whether the imputations are conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(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;
(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
(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

[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

135
Plaintiffs’ Submissions, [320].
136
Plaintiffs’ Submissions, [323].
137
SFASC, paragraph 52.
138
Defendants’ Outline of Argument – Part 2, [159].
65

[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?”

[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 “man-made 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:
(a) that there has been a cover-up in relation to the Grantham floods;
(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
(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
“eye-witness accounts were dealt with”.139

[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”.

[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.

[213] Imputation (a) is conveyed.

[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
139
Plaintiffs’ Submissions, [334].
66

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.

[215] Imputation (b) is conveyed.

[216] As to imputation (c), for reasons previously given, this imputation is also conveyed.141

[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:
(a) caused the deaths of 12 people by constructing a dam wall in a designated
watercourse which collapsed, causing the 2011 Grantham flood;
(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
(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.

[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

[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.

[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.

140
Defendants’ Outline of Argument – Part 2, [161].
141
See [60]-[62] above.
67

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.”

[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

[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.

[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

142
Plaintiffs’ Submissions, [350]; see also Lee v Wilson & Mackinnon (1934) 51 CLR 276 per Dixon J at 292.
143
SFASC, paragraph 55.
144
Defendants’ Outline of Argument – Part 2, [174].
145
Plaintiffs’ Submissions, [354].
68

[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.

[225] 2GB and Mr Jones admit that, if conveyed, the imputation is defamatory of each of the
plaintiffs.

[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

[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.

[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.

[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

[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

146
Defendants’ Outline of Argument – Part 2, [175].
147
SFASC, paragraph 57.
69

Wagner. For the reasons given in respect of the Fifteenth Matter, I determine that the
imputation was conveyed.

[231] 2GB and Mr Jones admit that, if conveyed, the imputation is defamatory.

[232] The defendants do not seek to defend this defamatory imputation. As I have already
observed, this imputation is very serious.

Seventeenth Matter

[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.

[234] 2GB and Mr Jones admit that the Seventeenth Matter is of and concerning each of the
plaintiffs.

[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

[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.

[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

148
SFASC, paragraph 60.
70

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?”

[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.”
71

[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
cover-up by two governments and that the plaintiffs are somehow involved.149

[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 cover-up
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 cover-up.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.

[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.”

[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.”

[243] Imputation (a) was conveyed.

[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

149
Defendants’ Outline of Argument – Part 2, [181]; Plaintiffs’ Submissions, [375].
150
Plaintiffs’ Submissions, [381]-[382].
72

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

[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.

[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.

[247] Imputation (b) was conveyed.

[248] I determine that the Seventeenth Matter conveyed 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.

[249] 2GB and Mr Jones admit that, if conveyed, the imputations are defamatory of each of the
plaintiffs.

[250] The defendants do not seek to defend these defamatory imputations. I consider these
imputations to be very serious.

Eighteenth Matter

[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.

[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:

151
Defendants’ Outline of Argument – Part 2, [182].
73

“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:
(a) is a person who knows only two things: self-interest and bullying;
(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
(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.
64. 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:
(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
(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
(i) 12 people were killed in the Grantham flood disaster; this fact was
notorious;
(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
(iii) the second defendant made the allegation to the effect of that
described in particular (ii):
(A) in the first, second, third, seventh, eighth, ninth, tenth,
eleventh, fourteenth, fifteenth, sixteen and seventeen
matters;
(B) on the Jones Program on 13 October 2014 (commencing at
about 7.16 am); and
(C) on the ‘Alan Jones Comments of the Day Program’ on radio
station 4GR on 16 October 2014 (commencing at 1.51 pm);
and
74

(iv) a further inquiry into the Grantham flood disaster had been
announced by the Queensland Government; this fact was
notorious.”152

[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.

[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.”

[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.

[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.

152
SFASC, paragraphs 63 and 64.
153
Defendants’ Outline of Argument – Part 2, [189].
154
Defendants’ Outline of Argument – Part 2, [190].
75

[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.”

[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.

[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
self-interested 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.

[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

[261] The Nineteenth Matter consists of words spoken by Mr Jones in a television program
co-hosted 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

155
Defendants’ Outline of Argument – Part 2, [192].
76

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.”

[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.

[263] 2GB and Mr Jones admit that, if conveyed, the imputation is defamatory of each of the
plaintiffs.

[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

[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

156
SFASC, paragraph 68.
157
Plaintiffs’ Submissions, [414].
158
Plaintiffs’ Submissions, [419].
77

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
over-burden 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.”

[266] 2GB and Mr Jones admit that the broadcast was of and concerning the plaintiffs.

[267] It is in issue whether the imputations were conveyed. The pleaded imputations are that
each of the plaintiffs:
(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
(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

[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.

[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.

[270] 2GB and Mr Jones admit that, if conveyed, the imputations are defamatory of each of the
plaintiffs.

159
SFASC, paragraph 71.
160
Defendants’ Outline of Argument – Part 2, [214].
161
Plaintiffs’ Submissions, [430].
78

[271] I determine that the Twentieth Matter conveyed imputations that each of the first, second,
third and fourth plaintiffs:
(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
(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.

[272] Each of these imputations is defamatory of the plaintiffs.

Twenty-First Matter

[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.

[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?”

[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.

[276] I find that the Twenty-First Matter is of and concerning each of the plaintiffs.

[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:
(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;
(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

162
Plaintiffs’ Submissions, [437].
79

(c) illegally obtained a national asset, the airspace over the Oakey military base, for
use at his private airport.

[278] The plaintiffs rely on the following extrinsic facts:


(i) 12 people were killed in the Grantham flood disaster; and
(ii) a further inquiry into the Grantham flood disaster had been announced by the
Queensland Government.163

[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.

[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.”

[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

163
SFASC, paragraph 73.
164
Plaintiffs’ Submissions, [444].
80

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.

[282] Imputation (b) is conveyed.

[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.

[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:
(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;
(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
(c) illegally obtained a national asset, the airspace over Oakey Military Base, for use
at his private airport.

[285] 2GB and Mr Jones admit that if the imputations are conveyed, they are defamatory.

Twenty-Second Matter

[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.

[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

165
Plaintiffs’ Submissions, [446].
81

investigation has the full cooperation of Boral to whom Wagner sold the quarry in
a hurry after the flood, so it will be interesting. …”

[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.

[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
(i) The town of Grantham experienced a flood disaster which resulted in
the deaths of many people; this fact was notorious;
(ii) the second defendant had made frequent and repeated allegations that
the plaintiffs:
(A) were responsible for the Grantham flood disaster and the deaths
of many people as a result of the disaster; and
(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
(iii) the second defendant made the allegation to the effect of that described
in particular (ii)(A):
(A) in the Third, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth,
Fourteenth and Nineteenth Matters;
(B) on the Jones Program on 13 October 2014 (commencing at about
7.16 am); and
(C) on the ‘Alan Jones Comments of the Day Program’ on radio
station 4GR on 16 October 2014 (commencing at 1.51 pm);
(iv) The second defendant made the allegation to the effect of that described
in particular (ii)(B):
(A) in the First, Second, Third, Seventh, Eighth, Ninth, Tenth,
Eleventh, Fourteenth, Fifteenth, Sixteen and Seventeenth,
Twentieth and Twenty-First Matters;

166
Plaintiffs’ submissions, [462].
82

(B) on the Jones Program on 13 October 2014 (commencing at about


7.16 am); and
(C) on the ‘Alan Jones Comments of the Day Program’ on radio
station 4GR on 16 October 2014 (commencing at 1.51 pm); and
(v) a further inquiry into the Grantham flood disaster had been announced
by the Queensland Government; this fact was notorious.”167

[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

[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”.

[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.

[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

167
SFASC, paragraph 76.
168
Plaintiffs’ Submissions, [469].
169
Defendants’ Outline of Argument – Part 2, [231].
83

tragedy of 2011 by failing to cooperate with geotechnical work at his quarry and
withholding relevant engineering evidence.

Twenty-Third Matter

[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.

[295] There is no issue that the Twenty-Third Matter is of and concerning each of the plaintiffs.

[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:
(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;
(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;
(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
(d) sold his quarry to Boral, in an effort to cover up his culpability for killing 12 people
in the Grantham flood disaster.170

[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

170
SFASC, paragraph 80.
171
Defendants’ Outline of Argument – Part 2, [234].
84

being gifted for nothing. This is in the context that it is the Wagners who built the airport.
Imputation (a) is conveyed.

[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.”

[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.

[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”.

[301] Imputations (b), (c) and (d) are conveyed.

[302] There is no issue that, if conveyed, each of the imputations are defamatory.

[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:

172
Plaintiffs’ Submissions, [480]-[482].
173
Defendants’ Outline of Argument – Part 2, [237].
85

(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;
(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;
(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
(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

[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 Twenty-Fourth 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.

[305] There is no issue that the Twenty-Fourth Matter is of and concerning each of the plaintiffs.

[306] It is in issue whether the imputations were conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(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;
(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
(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

174
SFASC, paragraph 83.
86

[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
eye-witnesses 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.”

[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.”

[309] Mr Jones then outlines the evidence of the first witness called at the Inquiry, Lisa
Spierling.

[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.”

[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.”

[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,

175
Plaintiffs’ Submissions, [500].
87

“… 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

[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.

[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”.

176
Plaintiffs’ Submissions, [502] (emphasis in original).
177
T 22-37, lines 44-45.
88

[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”.

[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”.

[317] I determine that the Twenty-Fourth Matter does not convey the pleaded imputations.

Twenty-Fifth Matter

[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.

[319] 2GB and Mr Jones admit that the Twenty-Fifth Matter is of and concerning each of the
plaintiffs.178

[320] It is in issue whether the imputations are conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(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;
(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;

178
SFASC, paragraph 86.
89

(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.

[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 man-made 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.”

[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.”
90

 “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.”

[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.”

[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.

[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.

[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.

179
Defendants’ Outline of Argument – Part 2, [259].
180
Defendants’ Outline of Argument – Part 2, [259].
91

[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

[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
man-made.

[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.

[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:
(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;
(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;
(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.

[331] Each of these imputations is defamatory of each of the plaintiffs.

Twenty-Sixth Matter

[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.

181
Plaintiffs’ Submissions, [521].
182
Plaintiffs’ Submissions, [521].
92

[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

[334] The Twenty-Sixth Matter is similar in content to the Fifteenth, Sixteenth and
Twenty-First 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.”

[335] For reasons already given in relation to the Fifteenth, Sixteenth and Twenty-First Matters,
the imputation is conveyed.

[336] 2GB and Mr Jones do not dispute that, if conveyed, the imputation is defamatory of John
Wagner.

[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

[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.

183
SFASC, paragraph 88.
93

[339] 2GB and Mr Jones admit that the Twenty-Seventh Matter is of and concerning each of
the plaintiffs.

[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:
(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;
(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;
(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;
(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;
(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;
(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
(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.
92. 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

184
SFASC, paragraphs 91 and 92.
94

[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
Toowoomba-based 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 cross-examination isn’t it?”
 “You were convinced, of course, that this was the result of the manmade
construction.”
95

 “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.”

[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.

[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.

[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.

[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.

[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

185
Defendants’ Outline of Argument – Part 2, [280].
186
Plaintiffs’ Submissions, [554].
96

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.

[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.”

[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

[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

[350] The Twenty-Eighth Matter was broadcast on radio 2GB on 28 July 2015 commencing at
approximately 6.45 am.

[351] 2GB and Mr Jones admit that the Twenty-Eighth Matter is of and concerning the
plaintiffs.

[352] It is in issue whether the imputations were conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(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
(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

187
Plaintiffs’ Submissions, [566].
188
SFASC, paragraph 93B.
97

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

[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.”

[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.”

[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

189
SFASC, paragraph 94.
98

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”.

[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.

[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

[358] There is no issue that, if conveyed, the imputations are defamatory.

[359] I determine that the Twenty-Eighth Matter conveyed the imputations that each of the first,
second, third and fourth plaintiffs:
(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
(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.

[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

190
Plaintiffs’ Submissions, [579].
99

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

[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.

[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
Twenty-Ninth 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

[363] It is in issue whether the Twenty-Ninth Matter conveyed the pleaded imputations that
each of the first, second, third and fourth plaintiffs:
(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
(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

[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.”

191
SFASC, paragraph 96; Amended Attachment A to the Defendants’ Outline of Argument – Part 1, page 7.
192
SFASC, paragraph 95B.
100

 “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.”

[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”.

[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”.

[367] Imputations (a) and (b) are conveyed.

[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.

[369] I determine that the Twenty-Ninth Matter conveyed that each of the first, second, third
and fourth plaintiffs:
(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
(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.

[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.

[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.
101

Thirtieth Matter

[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.

[373] 2GB and Mr Jones admit that the Thirtieth Matter is of and concerning each of the
plaintiffs.

[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:
(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;
(b) is a selfish, insensitive grub who falsely claimed to have suffered in the Grantham
floods in which 12 people died; and
(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

[375] Two further imputations are said to be conveyed in respect of the first plaintiff, Denis
Wagner, namely that he:
(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
(e) disgracefully claimed that victims of the Grantham flood had told false stories under
oath at the flood inquiry.194

[376] The plaintiffs also plead that the Thirtieth Matter conveyed an imputation in respect of
the second plaintiff, John Wagner, namely that he:
(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.

[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:

193
SFASC, paragraph 99.
194
SFASC, paragraph 100.
195
SFASC, paragraph 100A.
196
Plaintiffs’ Submissions, [602].
102

 “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.”

[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.

[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?”

197
Plaintiffs’ Submissions, [608].
103

[380] Imputation (a) is conveyed.

[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.

[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.”

[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.

[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.

[385] 2GB and Mr Jones admit that if the imputations are conveyed, each is defamatory of the
relevant plaintiff.198

Thirty-First Matter

[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.

[387] 2GB and Mr Jones admit that the Thirty-First Matter is of and concerning each of the
plaintiffs.

[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:

198
Defendants’ Outline of Argument – Part 1, Amended Attachment A, page 7.
104

(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
(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:
(i) the first plaintiff gave evidence before the Commission of Inquiry on the
occasion referred to; and
(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

[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.”

[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?”

199
SFASC, paragraph 102.
200
SFASC, paragraph 102A.
105

 “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.”

[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”.

[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

[393] Imputation (a) is conveyed.

[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.

[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.

201
Defendants’ Outline of Argument – Part 2, [355].
202
Plaintiffs' Submissions, [629]-[630].
106

[396] 2GB and Mr Jones admit that, if conveyed, each of these imputations is defamatory of
the relevant plaintiff.

Thirty-Second Matter

[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.

[398] 2GB and Mr Jones admit that the Thirty-Second Matter is of and concerning each of the
plaintiffs.

[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:
(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;
(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
(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

[400] The imputation in respect of the first plaintiff is that he:


(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

[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.”

[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

203
SFASC, paragraph 105.
204
SFASC, paragraph 105A.
107

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”.

[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

[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

205
Plaintiffs’ Submissions, [640].
206
Plaintiffs' Submissions, [642]-[643].
108

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.

[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.

[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.

207
Defendants’ Outline of Argument – Part 2, [369].
109

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?”

[407] From this exchange the plaintiffs submit that the ordinary reasonable listener was given
several distinct messages:
(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;
(b) second, that it is the Wagners who should be held responsible; and
(c) third, that Denis Wagner had in fact lied about the landscape at the quarry.208

[408] The defendants submit that if imputations (a), (b) and (c) are conveyed by the
Thirty-Second 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.”

[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

208
Plaintiffs' Submissions, [645].
110

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

[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.

[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.

[412] I determine that the Thirty-Second Matter conveyed imputations that each of the first,
second, third and fourth plaintiffs:
(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;
(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;
(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.

[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.

209
Plaintiffs’ Submissions, [648].
111

Thirty-Third Matter

[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.

[415] 2GB and Mr Jones admit that the Thirty-Third Matter is of and concerning each of the
plaintiffs.

[416] It is in issue whether the imputations are conveyed. The pleaded imputations are that
each of the first, second, third and fourth plaintiffs:
(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
(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

[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”.

[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.

[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

210
SFASC, paragraph 108.
112

famous Profumo affair, when she said oh Profumo, well he would say that,
wouldn’t he. And they would say that.”

[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.

[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
Rice-Davies, 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).

[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.

[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.

[424] 2GB and Mr Jones admit that, if conveyed, imputation (a) is defamatory of each of the
plaintiffs.

Thirty-Fourth Matter

[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.

[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,
113

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.

[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:
(a) illegally constructed a massive levee bank at his quarry; and
(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

[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.”

[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.

[430] I find that the Thirty-Fourth Matter is of and concerning each of the plaintiffs and
conveyed imputations (a) and (b).

211
SFASC, paragraph 111.
114

[431] 2GB and Mr Jones admit that, if conveyed, both imputations are defamatory of each of
the plaintiffs.

Conclusion – Imputations Conveyed

[432] Of the 32 matters complained of, I have determined 76 of the pleaded imputations are
conveyed.212

[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.

[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

[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:

(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

(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

212
SFASC, paragraphs 12(a), 12(b), 18(a), 24(a), 24(b), 28(a), 28(b), 31(a), 31(c), 34(a), 37(a), 37(b), 37(c), 37(d),
37(e), 40(a), 40(b), 40(c), 40(d), 43(a), 43(b), 43(c), 43(d), 43(e), 52(a), 52(b), 52(c), 55, 57, 60(a), 60(b),
63(a), 63(b), 63(c), 68, 71(a),71(b), 73(a), 73(b), 73(c), 80(a), 80(b), 80(c), 80(d), 86(a), 86(b), 86(c), 88, 91(a),
91(b), 91(c), 91(d), 91(e), 91(f), 91(g), 92, 93B(a), 93B(b), 94, 95B(a), 95B(b), 96, 99(a), 99(b), 99(c), 100(a),
100(b), 100A, 102, 102A, 105(a), 105(c), 105A, 108(a), 111(a), 111(b).
213
SFASC, paragraphs 15(a), 15(b), 31(d), 105(b).
214
SFSAC, paragraph 43(c).
215
SFASC, paragraph 24(a) and (b).
216
SFSASC, paragraph 28(a).
217
SFASC, paragraph 55.
115

 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:

(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.219

 In respect of the Twenty-First Matter, that each of the first, second, third and fourth
plaintiffs:

(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;

(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

(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

[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.

218
SFASC, paragraph 57.
219
SFASC, paragraph 60(a) and (b).
220
SFASC, paragraph 73(a)-(c).
221
SFASC, paragraph 88.
222
Bristow v Adams [2012] NSWCA 166 at [20]-[31].
116

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

[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.

[438] It is convenient to deal with the truth defence by reference to these five categories.

[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.

[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

[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

[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).

[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:

223
Plaintiffs’ Submissions on Defences, [4], citing Howden v Truth & Sportsman Ltd (1937) 58 CLR 416 at 420;
Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [274] and [306]; Fairfax Media Publications Pty Ltd
v Kermode (2011) 81 NSWLR 157 at [59]; Sutherland v Stopes [1925] AC 47 at 79; Defendants’ Outline –
Part 1, [156].
117

(1) the plaintiffs caused the loss of lives in Grantham because:


(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);
(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;
(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

[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.”

[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.

224
FFAD, paragraph 141(a)(i)1 and paragraph 141(a)(v).
225
In Exhibit 15, the Joint Expert Report, at page 1, “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.
226
TFAR, paragraph 4(a).
227
TFAR, paragraph 4(b).
118

[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).

[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

[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.

[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.

[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

[451] All four experts gave oral evidence.

[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

228
Exhibit 15, Joint Expert Report. Neither Dr Smart nor Dr Maroulis provided individual reports.
229
Exhibit 17, Report of Dr David Newton, dated 16 March 2018.
230
MFI-31, 35 and 36.
231
Wagner & Ors v Harbour Radio Pty Ltd & Ors [2017] QSC 177.
119

[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) 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) what scenario(s) most likely would have eventuated at around and shortly following
4.00 pm on 10 January 2011 had:
(a) to the extent you find the breaching to have occurred, that breaching did not
occur;
(b) to the extent you find the existence of a man-made bund, that bund had not
existed; and
(c) to the extent you find the existence of a natural embankment, that
embankment had not existed.232

[454] The experts were instructed to specify the factual assumptions or matters of fact upon
which their opinions were based.

[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.

[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
232
Exhibit 15, Joint Expert Report, Attachment 1, Issues for expert opinion, hydrology, 7 November 2017,
paragraphs 1 and 2.
233
Exhibit 15, Joint Expert Report, Table 1, Summary of responses to issues for expert opinion, A.1.
234
Exhibit 15, Joint Expert Report, paragraph 17.
235
Exhibit 16, paragraph 181.
236
Exhibit 16, paragraph 181.
120

descriptions at upstream locations were similar to those of Grantham


residents.”237

(a) Dr Smart

[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.

[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

[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:

237
Exhibit 15, Joint Expert Report, table 1, summary of responses to issues for expert opinion, A.1.
238
T 7-13, line 43 to T 7-14, line 2.
239
T 7-16, lines 36-37.
240
Exhibit 15, Joint Expert Report, paragraph 153.
241
Exhibit 15, Joint Expert Report, paragraph 77.
242
Exhibit 15, Joint Expert Report, paragraph 80.
243
Exhibit 15, Joint Expert Report, paragraph 83.
244
Exhibit 15, Joint Expert Report, paragraphs 85-115.
245
Exhibit 15, Joint Expert Report, paragraphs 91-93.
246
Exhibit 15, Joint Expert Report, paragraph 88.
121

“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

[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);
2. distributed roughness (conventional friction based on ground cover
classification); and
3. distributed roughness with partial blockage of the Lockyer Creek bend
around the quarry.”248

[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

[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

247
Exhibit 15, Joint Expert Report, paragraph 93.
248
Exhibit 15, Joint Expert Report, paragraph 86.
249
Exhibit 15, Joint Expert Report, paragraph 116.
250
Exhibit 15, Joint Expert Report, paragraph 125.
122

[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.

[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 damage253 together with accounts from
eyewitnesses and photographic and video evidence.254

[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:
(a) the 12 Grantham flood victims died along a 1.4 kilometre swath between
Gatton Helidon Road and the railway line;
(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;
(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
(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;
(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;
(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

251
Exhibit 15, Joint Expert Report, paragraph 139.
252
Exhibit 15, Joint Expert Report, paragraphs 141-147.
253
Exhibit 15, Joint Expert Report, paragraph 153.
254
Exhibit 15, Joint Expert Report, paragraphs 151-184.
255
Exhibit 15, Joint Expert Report, paragraph 155.
256
Exhibit 15, Joint Expert Report, paragraph 158.
123

give a very good description of what happens when a surge is reflected by a break
water”;257
(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;
(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
(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;
(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
(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

[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

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

257
Exhibit 15, Joint Expert Report, paragraph 163.
258
Exhibit 15, Joint Expert Report, paragraph 167.
259
Exhibit 15, Joint Expert Report, paragraph 169.
260
Exhibit 15, Joint Expert Report, paragraph 170.
261
Exhibit 15, Joint Expert Report, paragraph 184.
124

“… 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

[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

[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.

[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.

[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:

262
Exhibit 15, Joint Expert Report, paragraphs 439-442.
263
Exhibit 17, Report of Dr David Newton, dated 16 March 2018, page 29, [40]
264
Exhibit 15, Joint Expert Report, Attachment 11.
265
T 7-31, lines 43-46.
125

“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

[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

[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

[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

[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

266
T 7-33, lines 25-44.
267
T 7-39, lines 11-20.
268
T 7-40, lines 3-7.
269
T 7-40, lines 16-17.
270
T 7-41, lines 20-44.
271
T 7-44, lines 10-16.
126

reliable evidence of the existence of a surge, let alone one which emanated from the
quarry.

[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

[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.

[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.

272
Plaintiffs’ Submissions on Defences, [173]-[174].
273
T 7-33, lines 45-47.
274
T 7-34, lines 9-10.
275
T 7-34, lines 33-34.
276
T 8-9, lines 1-5.
277
T 8-9, lines 7-10.
278
T 8-9, lines 14-25.
127

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

[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

[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.

279
T 8-9, line 40 to T 8-10, line 4.
280
Exhibit 15, Joint Expert Report, paragraph 167.
281
T 8-20, lines 5-11.
282
Exhibit 15, Joint Expert Report, paragraphs 33-38.
283
T 8-23, lines 11-21.
128

[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.”

[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.

[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

[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.

284
Exhibit 15, Joint Expert Report, paragraph 368.
285
Exhibit 20, TB Vol 5, Tab 251.
286
T 8-18, lines 34-43.
287
Exhibit 15, Joint Expert Report, paragraph 40.
129


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

[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.

[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.

[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

[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

288
T 7-17, line 28 to T 7-18, line 8.
289
Exhibit 20, TB Vol 6, Tabs 298 and 299.
290
Plaintiffs’ Submissions on Defences, [160].
130

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

[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 post-disaster 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

[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.

[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

291
Exhibit 15, Joint Expert Report, page 51.
292
Exhibit 15, Joint Expert Report, paragraph 171.
293
T 8-30, lines 21-26.
294
T 8-30, lines 28-47.
131

structural damage indicates that flood depth and velocity were large enough
to displace structures. It does not provide evidence of a surge.”295

[492] Figure DN-3296 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 DN-3
with Figure GS-13 to identify any significantly different type of damage.

[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 DN-6301 is a photograph of damage to railway ballast by flooding which
was not associated with a surge.

[494] I do not accept that the matters identified by Dr Smart constitute reliable evidence of a
devastating surge.

[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

[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

295
Exhibit 15, Joint Expert Report, paragraphs 48-49.
296
Exhibit 15, Joint Expert Report, page 20.
297
Exhibit 15, Joint Expert Report, paragraphs 157-159.
298
T 8-31, lines 20-31.
299
T 8-31, lines 40-47.
300
Exhibit 15, Joint Expert Report, paragraph 51.
301
Exhibit 15, Joint Expert Report, page 22.
302
Exhibit 15, Joint Expert Report, paragraphs 185-190.
303
T 8-31, lines 11-19.
304
Exhibit 15, Joint Expert Report, paragraph 190.
132

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

[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.

[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

[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

[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

[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

[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

305
Exhibit 17, Report of Dr David Newton, dated 16 March 2018, page 75, [142]-[144].
306
T 8-8, lines 26-38.
307
Plaintiffs’ Submissions on Defences, [272].
308
T 8-38, lines 6-13.
309
Exhibit 15, Joint Expert Report, page 54 and page 55, paragraphs 196 and 197.
310
Exhibit 15, Joint Expert Report, paragraphs 216-240.
311
Exhibit 17, Report of Dr David Newton, dated 16 March 2018, page 99, [178].
312
Exhibit 15, Joint Expert Report, paragraphs 191 and 243.
133

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.”

[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

313
Plaintiffs’ Submissions on Defences, [273].
314
T 8-48, lines 1-22.
134

[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

[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).

[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.

[507] Rule 428 states the requirements for an expert report:


“Requirements for report
(1) An expert’s report must be addressed to the court and signed by the
expert.
(2) The report must include the following information—
(a) the expert’s qualifications;
(b) all material facts, whether written or oral, on which the report is
based;
(c) references to any literature or other material relied on by the
expert to prepare the report;
(d) for any inspection, examination or experiment conducted,
initiated, or relied on by the expert to prepare the report—
(i) a description of what was done; and
(ii) whether the inspection, examination or experiment was
done by the expert or under the expert’s supervision; and
(iii) the name and qualifications of any other person involved;
and
(iv) the result;
(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;
(f) a summary of the conclusions reached by the expert;
135

(g) a statement about whether access to any readily ascertainable


additional facts would assist the expert in reaching a more reliable
conclusion.
(3) The expert must confirm, at the end of the report—
(a) the factual matters stated in the report are, as far as the expert
knows, true; and
(b) the expert has made all enquiries considered appropriate; and
(c) the opinions stated in the report are genuinely held by the expert;
and
(d) the report contains reference to all matters the expert considers
significant; and
(e) the expert understands the expert’s duty to the court and has
complied with the duty.”

[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.

[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.

[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.

[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.

315
(2001) 52 NSWLR 705 at [64], [69] and [79] per Heydon JA.
316
MFI-31, Third Report of Mr Gerard Dam, page 7, “Final statement”.
136

[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.

[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
north-western 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

[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

317
MFI-35, First Report of Mr Gerard Dam, page 4.
318
MFI-35, First Report of Mr Gerard Dam, page 5.
137

[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.

[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:
(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;
(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;
(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

[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.

[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
319
Plaintiffs’ Submissions on Defences, [116]-[117].
320
Defendants’ Submissions regarding admissibility of Mr Dam’s reports, [23].
138

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.”

[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.

[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.

[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

321
Defendants’ Submissions regarding admissibility of Mr Dam’s reports, [26].
322
MFI-35, First Report of Mr Gerard Dam, page 30, second dot point.
323
Defendants’ submissions regarding admissibility of Mr Dam’s reports, [26].
324
MFI-35, First Report of Mr Gerard Dam, section 4, page 11.
139

[522] In evidence-in-chief Dr Smart stated that the post-flood 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

[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

[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

[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

325
T 7-25, lines 26-28.
326
Exhibit 15, Joint Expert Report, page 28.
327
T 7-26, lines 44-47 and T 7-27, lines 41-42.
328
Plaintiffs’ Submissions on Defences, [139(a)].
329
Plaintiffs’ Submissions on Defences, [139(d) and (e)].
330
T 8-10, lines 34-42.
331
T 8-11, line 1 to T 8-12, line 16.
332
T 21-51, line 38; Plaintiffs’ Submissions on Defences, [139(g)].
333
T 21-51, line 38; Plaintiffs’ Submissions on Defences, [139(g)].
140

[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

[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

[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.

334
Plaintiffs’ Submissions on Defences, [139(i)].
335
T 21-51, line 37.
336
T 21-51, line 41.
337
Exhibit 15, Joint Expert Report, paragraphs 385 and 386.
141

[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

[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

[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

[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

[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.

338
Plaintiffs’ Submissions on Defences, [148]-[151].
339
T 23-12, lines 11-26.
340
Defendants’ Outline of Argument – Part 1, [160].
142

[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.

[535] Before addressing the criticisms made by Dr Smart of Dr Newton’s modelling, it is first
important to understand this modelling.

[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

[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

[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

[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.

[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

341
Exhibit 15, Joint Expert Report, paragraph 16.
342
Plaintiffs’ Submissions on Defences, [17]; T 8-51, lines 30 - 31; Exhibit 15, Joint Expert Report, paragraph 18.
343
Exhibit 15, Joint Expert Report, paragraph 18.
143

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.

[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

[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

[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.

[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
affidavit348 of James Micallef, a solicitor with the solicitors for the plaintiffs. In a more
recent affidavit filed by the defendants349 however it is affirmed that Mr Eichler is
presently living at an address at Broken Hill and is registered on the New South Wales
344
Exhibit 15, Joint Expert Report, paragraphs 23-25.
345
Exhibit 17, Report of Dr David Newton, dated 16 March 2018, page 31, [44]-[46].
346
Exhibit 17, Report of Dr David Newton, dated 16 March 2018, pages 31, 32, 58-85.
347
Plaintiffs’ Submissions on Defences, [80].
348
Sworn 9 May 2018.
349
Affidavit of Mikah Pajaczkowska-Russell, affirmed 12 June 2018.
144

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

[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.”

[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

[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
350
Exhibit 15, Joint Expert Report, paragraph 46.
351
Exhibit 18, page 7-99.
352
Exhibit 15, Joint Expert Report, paragraph 47.
353
T 9-5, line 15; T 9-23, line 40; Defendants’ Outline of Argument – Part 1, [162].
354
T 8-52, lines 38-40.
145

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

[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.

355
T 8-77, lines 20-46.
356
T 8-56, lines 14-17.
146

[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.

[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.

[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

357
Exhibit 17, Report of Dr David Newton, dated 16 March 2018, section 7.2, pages 54-56.
358
Defendants’ Outline of Argument – Part 1, [206]-[208].
359
T 9-32, lines 8-10.
360
Defendants’ Outline of Argument – Part 1, [206].
361
T 7-71, line 22.
362
Plaintiffs’ Submissions on Defences, [50].
363
Exhibit 17, Report of Dr David Newton, dated 16 March 2018, figure 7.1, page 55.
147

[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,
time-stamped 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

[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

[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

364
T 8-54, lines 3-11.
365
Exhibit 15, Joint Expert Report, paragraph 108.
366
Defendants’ Outline of Argument – Part 1, [199].
367
T 8-70, lines 16-24.
148

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

[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.

[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.

[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

[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

368
Plaintiffs’ Submissions on Defences, [84]-[85]; Exhibit 17, Report of Dr David Newton, dated 16 March 2018,
page 99, [181].
369
T 15-77, line 44 to T 15-78, line 5.
149

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 south-western 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

[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.

[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.

[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.

[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

[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:

370
T 15-79, lines 37-38.
371
T 15-80, line 21.
372
T 15-82, lines 13-16.
373
Exhibit 15, Joint Expert Report, paragraph 366.
374
T 18-55, lines 1-3.
375
T 18-55, lines 35-41.
150

“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

[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.

[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.

[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.

[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

376
T 18-56, lines 34-44.
377
Defendants’ Outline of Argument – Part 1, [85].
378
T 17-104, line 21.
379
T 17-107, line 4.
151

[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.

[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

[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.

[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”.

380
T 17-106, lines 14-16.
381
T 17-110, line 2.
382
T 19-26, lines 28-35.
383
T 16-37, line 12.
384
T 16-40, lines 35-43.
385
T 16-41, lines 20-21.
386
T 16-41, line 32-33.
387
T 17-69, line 2-47.
388
T 17-70, line 2.
389
T 17-70, line 39.
152

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.

[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.

[573] Ms Baukema’s description of what she observed is consistent with a rapid rise in
floodwater.

[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

[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

390
T 17-74, lines 1-4.
391
T 17-75, lines 40-46.
392
Exhibit 15, Joint Expert Report, Appendix GS-6, paragraph 15.
393
Exhibit 14, Railway Street, videos 8.1-8.4.
394
T 17-78, lines 30-35.
395
T 17-80, lines 3-13.
153

[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.

[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

[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

[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.

[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

396
T 17-82, line 8.
397
T 17-85, lines 27-41.
398
T 17-91, line 47 to T 17-92, line 10.
399
T 17-93, line 17.
400
T 17-93, lines 15-41.
401
T 17-94, lines 23-36.
154

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.

[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 …”

[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.”

[583] Their evidence at trial was to similar effect.

[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

402
T 17-98, lines 23-32.
403
T 17-102, line 11.
404
Exhibit 15, Joint Expert Report, Appendix GS-6, paragraph 20.
405
Exhibit 15, Joint Expert Report, paragraphs 165 and 449.
406
T 17-56, lines 1-2.
407
Plaintiffs’ Submissions on Defences, [186].
408
T 17-60, line 42 to T 17-62, line 28.
155

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.

[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.”

[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

[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.

[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.

[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

409
Exhibit 15, Joint Expert Report, Appendix GS-6, paragraph 22.
410
T 18-19, lines 19-30.
411
Exhibit 14, 1347 Gatton Helidon Road, videos 12.1-12.8.
412
Exhibit 15, Joint Expert Report, paragraph 447; T 7-33, line 35.
413
T 15-89, lines 29- 30.
156

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.

[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

[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.

[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.

[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

[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.

414
T 15-90, line 10.
415
T 15-91, lines 35-36.
416
T 15-92, lines 1-2.
417
T 16-19, line 37 to T 16-20, line 12.
418
T 16-23, line 37; T 16-24, line 31 and T 16-31, line 17.
419
T 16-24, line 31 to T 16-27, line 34.
157

[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

[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

[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

[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.

[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

[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

[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),

420
T 16-31, line 40 to T 16-32, line 5.
421
Exhibit 15, Joint Expert Report, Appendix GS-6, paragraph 18.
422
T 16-31, line 24-25.
423
Plaintiffs’ Submissions on Defences, [220].
424
Plaintiffs’ Submissions on Defences, [180].
158

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.

[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

425
Paragraph references are to the SFASC.
426
Defendants’ Outline of Argument – Part 1, [213].
427
SFASC 18(b), 31(b), 34(b), 64(b), 76, 83(b), 83(c), and 108(b).
428
SFASC, 24(a), 24(b), 55, 57, 60(a), 73(a), 88, 91(f), 99(c), 105(b) and 105(c).
159

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.

[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

[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

[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;
(ii) took part in attempts to cover up, by denying, the involvement of the
levee in creating the torrent;
(iii) intended or were prepared to take part in any attempt to cover up the
involvement of the levee in creating the torrent;
(iv) intended or were prepared to benefit from any attempt to cover up the
involvement of the levee in creating the torrent;
(v) benefitted in that there was an avoidance of, or an attempt to avoid, by
virtue of the matters set out herein:

429
FFAD, paragraph 141(a)(i)2.
430
FFAD, Attachment A, paragraphs 1(lc) and 1(ld).
160

1. claims for compensation by relatives of deceased flood victims


and damages to those whose property was damaged or destroyed
by the torrent;
2. claims for criminal responsibility;
3. reputational damage that would have occurred had their
involvement in the flood been revealed;
4. closer scrutiny of their various business operations.”

[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.

[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.

[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.

[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

431
Plaintiffs’ Submissions on Defences, [294].
432
Exhibit 15, Joint Expert Report, paragraph 10.
161

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.

[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.’”

[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

433
Exhibit 15, Joint Expert Report, pages 1-2.
434
Exhibit 17, Report of Dr David Newton, dated 16 March 2018, page 17, [27].
435
Exhibit 9.
436
Exhibit 20, TB Vol 7, Tab 337.
162

“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.”

[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

[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

[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

437
Exhibit 10.
438
Exhibit 8.
439
Exhibit 20, TB Vol 8, Tab 398.
163

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

[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;
(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;
(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;
(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

[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.

440
Exhibit 20, TB Vol 9, Tabs 422 and 437.
441
T 3-48, lines 45-47; T 3-49, lines 1-4; T 3-59, lines 11-18.
442
Defendants’ Outline of Argument – Part 1, [221].
443
T 3-40 to T 4-36.
444
T 3-40, lines 12-15.
164

[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

[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.

[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

[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”.

445
T 3-42, lines 5-6.
446
T 3-43, lines 17-19.
447
T 3-45, lines 19-24.
448
T 3-48, line 45 to T 3-49, line 4.
449
T 3-58, line 30.
450
T 3-59, lines 14-24.
165

[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

[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

[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

[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

451
T 3-59, lines 30-36.
452
T 3-72, line 23 to T 3-73, line 6.
453
T 3-73, line 42 to T 3-74, line 19.
166

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

[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

[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.

[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

[628] I accept this evidence.

[629] 2GB and Mr Jones have failed to establish the substantial truth of the Category 2
imputations.

454
T 3-61, lines 32-33.
455
Plaintiffs’ Submissions on Defences, [326].
456
T 4-10, lines 5-15.
457
T 4-12, lines 30-37.
167

Category 3 – the plaintiffs were involved in bullying and intimidation

[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

[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
low-flying 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”;

458
SFASC, [63(a)].
459
FFAD, paragraph 141(a)(iv)2.
460
FFAD, paragraph 141(a)(x).
168

 “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

[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

[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.

[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.

[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.

461
Annexure A to FFAD, paragraph 2(b), (c), (e), (f) and (g).
462
Annexure A to FFAD, paragraph 2(h).
463
T 20-23, lines 1-2.
169

[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

[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

[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.

[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
464
T 16-67, lines 41-44.
465
T 16-107, lines 4-8.
466
T 16-107, lines 35-36.
467
T 17-35, lines 3-4.
468
T 20-20, lines 41-45.
170

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

[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

[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

[642] I accept Mr Wagner’s adamant denial that he sought to bully or intimidate Ms Brown or
Dr Pascoe.

469
T 16-69, line 44 to T 16-70, line 34; Exhibit 3.
470
T 16-69, lines 34-42.
471
T 16-71, lines 5-18.
472
T 2-9, lines 41-44.
473
T 2-13, lines 15-16.
474
T 2-8, lines 45-47.
475
T 17-34, lines 33-34.
476
T 17-34, line 43.
477
T 17-34, line 44 to T 17-35, line 4.
171

[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.

[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.

[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.

[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

478
T 16-72, line 30; Exhibit 3.
479
T 2-11, line 17.
480
T 16-70, line 36 to T 16-71, line 3; T 16-75, line 29 to T 16-76, line 46.
481
T 2-6, line 28.
482
T 5-46, lines 6-29.
483
T 18-24, lines 42-45.
484
T 18-25, lines 10-15.
172

[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.

[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.

[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

[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).

[651] The seven imputations which the defendants no longer seek to justify conveyed the
following meanings:

485
T 4-38, lines 1-40.
486
Defendants’ Outline of Argument – Part 1, [244].
487
Plaintiffs’ Submissions on Defences, [382]-[384].
488
Paragraph references are to the SFASC.
489
Defendants’ Outline of Argument – Part 1, [245].
490
Amended Attachment A to the Defendants’ Outline of Argument – Part 1; the seven additional paragraphs of
the SFASC no longer sought to be justified are 28(a), 40(a), 43(a), 43(b), 73(c), 91(a) and 91(b).
173

 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.

[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.

[653] The defendants plead that these meanings are substantially true because the airport had
been able to be, or was, constructed and operated:491

491
FFAD, paragraph 141(a)(vi) 1, 1A, 1B, 1C, 1D, 2, 3, 4, 6, 9, 10 and 11.
174

(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;

(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;

(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;

(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;

(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;

(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;

(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;

(h) despite the loss of approximately 40% of the controlled airspace above or adjacent
to the Oakey defence base;

(i) without approval first having been sought as required by ss 18 and 19 of the
Environmental Protection and Biodiversity Conservations Act 1999 (Cth);

(j) in breach of the approved use of the airport, where there is no approval to operate
as a function centre;
175

(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;

(l) was thereby undertaken in breach of the community’s rules.

[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”).

[655] The defendants submit that in proceeding with the development of the Wellcamp Airport,
the plaintiffs breached s 18 of the EPBC.493 Section 18(4) provides:
“(4) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened species
included in the vulnerable category; or
(b) is likely to have a significant impact on a listed threatened species
included in the vulnerable category.”

[656] The breach of s 18 is alleged on the basis that the development of Wellcamp Airport “had
an obvious and significant impact on the koala species”. Section 18 is a civil penalty
provision, a breach of which has serious consequences. A breach of s 18 will only occur,
however, if the relevant action “has or will have a significant impact on a listed threatened
species included in the vulnerable category”. The only evidence identified by the
defendants in support of this alleged breach is that of Dr Pascoe and Ms Brown.
Ms Brown gave evidence that she observed koalas in the trees on Plaintree Farms.
According to Ms Brown the koalas used to come across from Wellcamp Downs. On a
few occasions she conducted rescues of koalas crossing the road. 494 Her evidence was
that there were koalas up until the point of the development of the airport: “… and then
we saw a lot of koalas crossing the road frantically when the bulldozers went in and
moving out, which was incredibly sad.”495 Dr Pascoe’s evidence was that he and
Ms Brown saw a koala once a month.496 This changed around 2011 and 2012 when the
Wellcamp Airport was being constructed. Dr Pascoe noted that the koalas fluctuated
“depending on the weather and the drought and the quality of the tree foliage”.497

492
Plaintiffs’ Submissions on Defences, [393].
493
Defendants’ Outline of Argument – Part 1, [247].
494
T 16-63, line 42 to T 16-64, line 6.
495
T 16-64, lines 10-15.
496
T 16-48, lines 2-3.
497
T 16-48, lines 41-44.
176

[657] None of the plaintiffs were cross-examined in relation to any alleged breach of s 18 of the
EPBC.

[658] The evidence of Ms Brown and Dr Pascoe does not establish a breach of s 18 of the EPBC.
The defendants did not call any expert evidence to establish that the airport development
had an impact, let alone a significant impact upon the koala population within the
development area. As correctly submitted by the plaintiffs, one might have expected
expert evidence to address such topics as:
(a) whether the area in which the airport was to be developed had a koala population;
(b) assuming it did, what impact the development would likely have on that population;
and
(c) whether the development did in fact have an impact on the koala population.498

[659] The defendants have failed to establish either that the plaintiffs, in constructing the
Wellcamp Airport, required approval under the EPBC or that by not doing so they
breached s 18.

(b) Public criticism and formal objections

[660] The defendants identify a number of objections lodged with the Toowoomba Regional
Council in respect of the proposed airport development. These include responses dated
19 November 2012 from the Civil Aviation Safety Authority (CASA), the Department of
Infrastructure and Transport, and the Department of Defence, as well as a response dated
9 November 2012 from the Department of Sustainability, Environment, Water,
Population and Communities.499

[661] It is not apparent from the defendants’ written submissions500 how these objections and
any public criticism establishes the substantial truth of the three imputations. I accept the
plaintiffs’ submission that on no view can the fact that these objections, which were made
before the first development application was approved in January 2013, prove as
substantially true imputations that the airport was constructed having broken “all the
rules”, or that the plaintiffs were “callous and selfish” people because they built an airport
without various impact statements and without payment of compensation to people, or
that the plaintiffs built an airport “without seeking proper legal approvals and then taking
a national asset, the airspace over Oakey, without making any payment for it.”501

(c) Expert town planning evidence

[662] The parties called town planning experts. The plaintiffs called Mr Chris Schomburgk.
The defendants called Mr Greg Ovenden. As well as individual reports, the experts
produced a joint report, dated 17 April 2018. The expert town planning evidence was
limited.

498
Plaintiffs’ Submissions on Defences, [403].
499
Exhibit 20, TB Vol 14, Tabs 647 to 651.
500
Defendants’ Outline of Argument – Part 1, [251]-[255].
501
Plaintiffs’ Submissions on Defences, [413].
177

[663] In all, there were 10 development applications lodged in respect of the Wellcamp Airport.
In their joint report, the town planners accept that the relevant application history is
accurately set out in section 1.3 of Mr Ovenden’s report dated 29 November 2017. The
first development application was lodged on 6 October 2011, with the final and tenth
development application being lodged on 27 March 2015. There is no suggestion in
Mr Ovenden’s reports that the plaintiffs, in seeking and obtaining approval, in any way
acted illegally. Generally, the town planning matters considered by the experts were
technical.

[664] At the date of the lodgement of the first development application on 6 October 2011, the
Jondaryan Shire Planning Scheme was in force, with the Toowoomba Regional Planning
Scheme commencing on 1 July 2012. The relevant provisions of each planning scheme
are set out in Mr Ovenden’s report, dated 29 November 2017.502

[665] There are three areas of disagreement between the town planning experts:
(a) whether the Toowoomba Regional Council should have accepted the proposed use
for “utilities public – public airport” under the Jondaryan Shire Planning Scheme;
(b) whether there were restrictions on aircraft type or seating; and
(c) whether the applications made were “piecemeal”.

[666] An additional issue addressed by the experts is whether one of the present uses of the
airport as a function centre is in breach of the development approval.

[667] As to the first matter of disagreement, the defined land use proposed by the plaintiffs and
accepted by the Toowoomba Regional Council as part of the third development
application was “utilities public”. This is defined in the Jondaryan Shire Planning
Scheme as follows:
“Any premises used or intended for use for any of the following undertakings,
namely:
(a) a railway, tramway, road or air transport, wharf, harbour, sea or river
undertaking; or
(b) major undertakings for the supply of water, hydraulic power, electricity
or gas, or the provision of radio broadcasting, television, sewerage, or
drainage services.
The term includes works conducted by or for a local government, the Chief
Executive Officer of the Department of Main Roads or Queensland Rail or,
that are ancillary to or associated with works on or adjacent to a road or rail
corridor where works are being carried out.”

[668] Both experts agree that whether the land use under the third development application fell
within this definition is a question of law for the Court.

502
Exhibit 40, Report of Reel Planning Pty Ltd, dated 29 November 2017, pages 11-13.
178

[669] Mr Ovenden is of the opinion that the definition did not adequately or correctly describe
and encompass the extent of development being applied for. In his experience the
definition typically envisages the supply of infrastructure needed to facilitate urban
development, generally carried out by or on behalf of local or state government. The
definition according to Mr Ovenden does not contemplate an entrepreneurial proposal by
a private company on private land to make a private commercial profit. His opinion is
that the ability to serve the public, does not mean that the airport will derive a public
character. The effect of the land use being categorised under this definition of “utilities
public” was that the development application was code assessable rather than impact
assessable. Mr Schomburgk’s view is that the definition expressly contemplates air
transport. In his opinion, the definition includes utilities that are intended for the general
public, such as transport facilities, which include an airport, because public airports (as
Wellcamp Airport is) also provide an essential public service/facility.503 Mr Schomburgk
further states:
“While it is true that a code assessment does not provide the assessment
manager with the full range of criteria against which to assess an application
(as distinct from an impact assessment application, where the whole of the
planning scheme is able to be considered), the IDAS process nevertheless
allows an assessment manager to seek whatever information it may require to
properly assess the potential impacts of any specific proposal.”504

[670] I accept Mr Schomburgk’s construction of the definition of “utilities – public”. The


relevant definition not only expressly refers to “air transport”, it also contemplates other
major infrastructure, such as a harbour. Mr Ovenden accepted a harbour was a major
undertaking and one that is high impact.505 He also accepted that it is immaterial whether
a harbour was public or private. The definition therefore contemplates large scale
undertakings such as a harbour, which also would be only code, rather than impact
assessable.

[671] The second area of disagreement between the experts is whether there were restrictions
pursuant to the approvals on aircraft type or seating. The experts disagree that the use of
the airport remained restricted by Condition 9 in the Toowoomba Regional Council’s
decision notice, dated 25 January 2013, relating to the third development application.
Condition 9 stated:
“The approved use is to be generally in accordance with the proposed ‘Stage
1 – Start Up’ description outlined in the TRC Information Request Response
Volume 1 prepared by Precinct Planning and received by Council on
22 October 2012 unless modified by the conditions of this approval and must
not include any of the following uses:
(a) Aircraft hangars;
(b) Warehouse (as defined in the Jondaryan Shire Council Planning
Scheme 2005 (amended 2009));

503
Exhibit 42, Report of Schomburgk Planning Pty Ltd, dated 21 March 2018, page 4.
504
Exhibit 42, Report of Schomburgk Planning Pty Ltd, dated 21 March 2018, page 5; IDAS stands for Integrated
Development Assessment System.
505
T 21-23, lines 37-39 and T 21-25, lines 3-7.
179

(c) Overnight storing of trucks, buses, taxis or other road transport vehicles,
or aircraft; and
(d) Fuel storage.”

[672] It is not in dispute that the eighth development application lodged in February 2014
sought approval to expand the operational parameters to accommodate all aircraft types
and aircraft having varying seating capacity, thereby precluding any restrictions on
aircraft type or seating capacity. Both experts agree that for a period, the applicant was
locked into the Stage 1 limitations. According to Mr Schomburgk, the limitations lapsed
after two years because it was a sunset provision. Mr Ovenden opines, however, that
there is nothing in the condition or in the decision notice which states that the condition
lapses after two years, and thus the airport operations remained limited to 50-seater
aircraft until the eighth development application, which was lodged on 19 February 2014.

[673] The issue is, in my view, a technical one. To the extent that any restrictions as to aircraft
type and seating required clarification, such clarification was obtained by the approval of
the eighth development application. In any event, as correctly submitted by the plaintiffs,
there is no evidence of what type of aircraft was flying in and out of Wellcamp Airport
between the third and eighth development applications. The defendants did not seek to
adduce any evidence that there was aircraft of a size greater than that nominated in the
third application and the plaintiffs were not cross-examined about this issue.506

[674] The third matter of disagreement between the experts concerns whether the development
application process was performed in a piecemeal way, that disguised the final intended
scope of the development. The concept of a “piecemeal” application has its genesis in
the decision of the High Court in Pioneer Concrete (Qld) Pty Ltd v Brisbane City
Council.507 Stephen J identified the relevant issue as “whether an applicant for consent
to use land for a particular purpose may make application piecemeal, or must he, on the
contrary, apply at the outset for the entirety of the use in question and, consequently, in
respect of the whole of the land devoted to that use.”508 By a majority of three to two,509
the High Court decided that an applicant under the relevant legislation for consent to use
land for a particular purpose must apply at the outset for the entire proposed use. Where
a change of use is contemplated, the proposed use must be stated in appropriate detail in
one application and all the land involved in the use must be the subject of the application.

[675] Mr Ovenden, in his report, did not identify any legislative provision which prevents the
staggering of applications. He opines, however, that the fifth development application
introduced what may be regarded as a piecemeal development. The basis for his opinion
is that the plaintiffs responded to an information request from the Toowoomba Regional
Council, which requested the applicant to “demonstrate the purpose and function of the
proposed mezzanine … areas” as follows:
“I refer to the response provided for information request item 1 above. At the
direction of Toowoomba Regional Council, certain component uses were
removed from the SPS Development Application for the airport terminal as
506
Plaintiffs’ Submissions on Defences, [431].
507
(1980) 145 CLR 485.
508
(1980) 145 CLR 485 at 500.
509
Stephen, Murphy and Wilson JJ; Gibbs and Aickin JJ dissenting.
180

they were deemed to be not necessarily associated with the use of ‘Utilities
Public’ (Airport Terminal). As previously outlined these uses will be subject
of a future development application(s). The mezzanine areas referred to will
be occupied by a yet to be determined use, however any separately defined
use ultimately proposed in this area of the building will be the subject of a
future application(s) for development approval.”

[676] In cross-examination, Mr Ovenden accepted that prior to the fifth development


application the area of the mezzanine was able to be used for airport terminal activities.510
That is, in the absence of any future development applications, the mezzanine area could
lawfully be used for airport terminal activities. As opined by Mr Schomburgk:
“That approach is not uncommon or, in this case, unexpected. We had a new
airport being established, and the range of terminal activities for each and
every space may well not have been known or foreseen at that time, but it was
prudent to build the main terminal building in anticipation of future uses.
In the interim, those spaces can be used for anything that fell within
the term airport terminal. I do not consider that this represents piecemeal
development, as I understand that term.”511

[677] I accept Mr Schomburgk’s opinion in this respect. The fifth development application
does not, in my view, offend the principle identified in Pioneer Concrete. Even if it did,
such contravention is merely a technical town planning consideration which does not
assist the defendants in justifying the three imputations.

[678] The final area considered by the experts is whether the present use of the airport as a
function centre is in breach of the development approval. Between 13 October 2014 and
15 August 2017 the airport hosted approximately 13 events, including the Trade and
Investment Queensland Commissioners’ dinner for Toowoomba and Surat Basin
Enterprises, as well as events for QantasLink. The plaintiffs admit that these functions
were held at the airport but contend that they were charitable events. As an initial
observation, it is difficult to appreciate how any such breach of the development approval,
even if established, is relevant to the defendants seeking to justify the three imputations.

[679] Both town planning experts agree that, irrespective of whether the function is charitable
or not, the airport is not approved as a function centre and even charitable events held
there would be in breach of the approval.512 Both experts, however, agree that the airport
holds an approval for a “Food and Drink Outlet”. This approval would permit functions
that were related to the airport.513

[680] The defendants did not lead any evidence as to the nature of the functions held at the
Wellcamp Airport. Nor did they cross-examine John Wagner or the other plaintiffs as to
the nature of these functions. The cross-examination did not go beyond the fact that there
are functions hosted at the airport.514 The paucity of evidence does not permit the Court

510
T 21-28, lines 19-26.
511
Exhibit 42, Report of Schomburgk Planning Pty Ltd, dated 21 March 2018, page 6.
512
T 21-32, lines 19-22.
513
T 21-32, lines 22-36.
514
Plaintiffs’ Submissions on Defences, [417]; T 2-25, lines 33-47.
181

to make a positive finding that the plaintiffs, by conducting the particularised functions
at the airport, are in breach of the relevant approval. Accepting that these are charitable
functions, however, it is difficult to comprehend how any such contravention assists the
defendants in justifying the three imputations. Those imputations concern the
construction rather than the operation of the airport. To the extent one of the imputations
conveyed the meaning that the plaintiffs are “callous and selfish”, such an imputation
could hardly be justified by reference to the plaintiffs permitting the airport to be used for
charitable functions.

[681] The defendants have failed to establish the substantial truth of the Category 4 imputations.

Category 5 – the plaintiffs are self-interested and greedy

[682] The only imputation sought to be justified in this category is paragraph 63(a), namely that
each of the first, second, third and fourth plaintiffs is a person who knows only two things:
self-interest and bullying. This is the same imputation I have already dealt with in relation
to Category 3. In their written submissions, the defendants identified two additional
imputations, namely paragraphs 63(b) and 63(c), with the same common sting as the one
falling within Categories 3 and 5.515 The defendants no longer seek to justify imputations
63(b) and 63(c), although both are defended on the basis of contextual truth.516

[683] The two imputations which the defendants no longer seek to justify convey the following
meanings:
 each of the plaintiffs, for his own selfish and greedy purposes, stole airspace above
the Oakey Army Base, which will destroy the Oakey Army Base, which trains
helicopter pilots, and harm the national defence interest; and
 each plaintiff 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.

[684] In relation to imputation 63(a), the defendants seek to justify the “bullying” aspect of this
imputation by reference to the same true facts that I have already dealt with under
Category 3. As the defendants have failed to establish the substantial truth of the
“bullying” aspect of this imputation, it follows that they have failed to justify a material
aspect of the imputation.

[685] The defendants seek to justify the “self-interest” aspect of the imputation not by reference
to the conduct of each of the four plaintiffs, but only by identifying certain conduct on
the part of the second plaintiff, John Wagner, and the third plaintiff, Neill Wagner. The
relevant conduct upon which the defendants rely to justify the imputation is:
(a) John Wagner’s “public speech boasting of environmental destruction”; and

515
Defendants’ Outline of Argument – Part 1, [274].
516
The defendants abandoned the substantial truth defence in respect of paragraph 63(b) in amended Annexure A
to the defendants’ written submissions. The defence of substantial truth was abandoned in respect of
imputation 63(c) in an amended version of the defence filed on 28 February 2017.
182

(b) Neill Wagner’s “unlawful landing of a helicopter”.

[686] As to the matter concerning John Wagner, the defendants submit:


“Following the construction of the airport, the second plaintiff spoke in
boasting terms during a session at the 2015 Sir Thomas McIlwraith Lecture
about the destruction of the environment during the course of construction of
the airport.”517
“During a question and answer session, the second plaintiff was asked about
the development of the airport and said, using words to the effect that when
advised by the Commonwealth Government’s Department of Environment
that an environmental impact statement would be required, he told them that
the wildlife was all gone, that everything on the property had been knocked
down and that there was nothing left. In doing so, the second defendant
evidenced his acts of self-interest and greed in a public demonstration of
satisfaction in the destructive process adopted.”518

[687] Exhibit 4 is a short extract of a video entitled “Australian Institute for Progress –
Wellcamp Airport – Handling the last minute environmental hurdles”. In the video John
Wagner appears to be responding to a question. He refers to the person he was dealing
with in CASA as being away for a period of 10 months. Upon this person’s return and
approximately three weeks before the opening of the Wellcamp Airport, the CASA
representative informed John Wagner that the matter had been referred to the Federal
Department of Environment under the EPBC Act. Mr Wagner travelled to Canberra
where he met with the CASA representative and the “environmental people”. He recounts
that at this meeting the government representatives raised matters such as the Barrier
Reef, snails, fish and birds. Mr Wagner informed the representatives that Wagners had
already knocked down everything for the purpose of constructing the airport and that the
airport was nowhere near the Great Barrier Reef.

[688] In my view, Mr Wagner’s statement does not evidence “self-interest”. Mr Wagner is


conveying to the audience how he dealt with government representatives in relation to a
suggested last minute referral under the EPBC Act. The fact that the construction of the
Wellcamp Airport had largely been completed without any previous suggestion of a
reference under the EPBC Act does not, within that context, support the defendants’
submission that Mr Wagner’s statement evidences self-interest. Mr Wagner denied that
it did:
“No, I don’t think that’s actually the case because what actually happened in
relation to this is that the airport was just about built, from memory, and the
site had been totally cleared when CASA referred it to the Department of
Environment and Heritage, so it was an absolute nonsense. So you couldn’t
help but be amused by the fact that you sit with bureaucrats and they want to
talk about the Barrier Reef and what effect it’s having on the Barrier Reef
when you’re sitting up at 2,000 feet on the western side of the Great Divide.
So that’s how ridiculous it was and it was, actually, a laughable situation,

517
Exhibit 4.
518
Defendants’ Outline of Argument – Part 1, [276].
183

which they ultimately agreed with, 10 months after construction had


started.”519

[689] Mr Wagner in the passage quoted above places his statement into its proper context.
Within that context his statement does not evidence self-interest.

[690] The allegation in relation to Neill Wagner is that he unlawfully landed a helicopter at
Downey Park in Brisbane on 22 March 2015. Mr Wagner explained the circumstances
of this event. He was flying five passengers including his son from Toowoomba to
Ballymore. His son had a training session at Ballymore. Mr Wagner had obtained
permission to land at Ballymore. Ordinarily the flight would take 30 to 35 minutes. As
he was entering controlled airspace he lodged his flight plan and sought clearance to enter
the controlled airspace around Brisbane International Airport. He encountered some
weather, including cloud. This required him to remain outside controlled airspace.
Mr Wagner then went into a holding pattern, which required him to perform circles at
150 kilometres an hour for approximately 10 minutes. He again sought permission to
enter controlled airspace and was informed that he needed to continue to hold. Once he
was granted permission to land at Ballymore, he observed that there were children on the
field which prevented him from landing. Mr Wagner was starting to feel fatigued so he
landed at Downey Park, which is approximately 150 metres away from Ballymore.520
Downey Park was controlled by the Brisbane City Council. Mr Wagner did not have
permission from the Council to land the helicopter at Downey Park. Mr Wagner left one
of the passengers with the helicopter and proceeded to Ballymore where he watched his
son train.

[691] Approximately 12 months later, in February 2016, Mr Wagner received a summons to


appear in the Magistrates Court at Brisbane on a charge of undertaking a prohibited
activity contrary to s 71 of the Public Land and Council Assets Local Law 2014 (made
under the City of Brisbane Act 2010 (Qld)). A further charge was made under the same
local law for Mr Wagner taking off in the helicopter without permission. This second
charge was discontinued. Mr Wagner initially pleaded not guilty to the first charge but
subsequently changed this plea to guilty and was fined $1,000.

[692] Just prior to landing at Downey Park, Mr Wagner gave evidence of the following
exchange with Air Services:
“When air services said, ‘You’re right to enter into the controlled airspace’,
and – and the tone of the conversation was, ‘Report on the ground’, and I took
it, ‘Get on the ground as quick as you can, because we’ve got other traffic in
the – in the area.’”521

[693] In cross-examination Mr Wagner was very frank that he used the helicopter because he
personally wanted to see his son train:
“MR ANDERSON: So you could – okay. So if you weren’t interested in
going, they would have driven themselves?

519
T 2-50, lines 7-16.
520
T 4-89 to T 4-91.
521
T 5-5, lines 40-44.
184

NEILL WAGNER: Yeah, well, you – well---


MR ANDERSON: Well, made their own way?
NEILL WAGNER: I may have driven, I may have flown. It was my choice
on the day.
MR ANDERSON: Right. In any event, that’s a – you know, that was your
personal self---?
NEILL WAGNER: Yeah, yeah, it was a – it was a private – private flight.
MR ANDERSON: Yeah. It was just a personal, self-interested decision to do
it that way?
NEILL WAGNER: Yes.
MR ANDERSON: Similarly, to land it in the park on the other side of – to
land in Downey Park on the other side of the creek – the other side of
Breakfast Creek, that was your choice?
NEILL WAGNER: Yes, it was my choice.
MR ANDERSON: And your decision to leave the helicopter there so that you
could watch your son train was your choice?
NEILL WAGNER: Yes.”522

[694] The defendants submit that the illegal landing by Neill Wagner at Downey Park was a
choice he made which displayed “self-interestedness”. Further, his decisions to land in
Downey Park and to initially plead not guilty to the charges “are a demonstration of the
selfishness or self-interestedness that the second defendant referred to in his
broadcast.”523

[695] The difficulty with the defendants’ submission is that even if these actions of Neill
Wagner evidence self-interest, the pleaded imputation which the defendants must
establish as substantially true is that each of the plaintiffs is a person who knows only two
things: self-interest and bullying. Such a meaning cannot be justified merely by a
reference to an isolated act even if that act is thought to be motivated by self-interest.

[696] In any event, it is not the use of a helicopter to take his son to a training session at
Ballymore that is the alleged self-interested act. It is the illegal act of landing on Brisbane
City Council property that is said to demonstrate self-interest. In my view, it does not.
Mr Wagner had permission to land at Ballymore. He gave a full explanation as to why
he landed at Downey Park rather than at Ballymore. His decision to land at Downey Park
rather than Ballymore involved a number of considerations including weather, having
been placed in a holding pattern, fatigue, communications with Air Services, and his
observation that there were children on the field at Ballymore where he had permission
to land. While his actions were illegal, they are explicable by factors which have nothing
to do with Mr Wagner acting out of self-interest. There is no suggestion that Mr Wagner

522
T 5-22, lines 27-45.
523
Defendants’ Outline of Argument – Part 1, [281]-[283].
185

breached any aviation regulations or compromised aviation safety. He had clearance to


enter a controlled airspace.524

[697] The defendants have failed to establish the substantial truth of the Category 5 imputation.

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

[698] The defendants rely on the defence of fair report of proceedings of public concern
contained in s 29 of the Act in respect of the Twenty-Third, Twenty-Fourth, Twenty-Fifth,
Twenty-Seventh, Twenty-Eighth, Twenty-Ninth, Thirtieth, Thirty-First, Thirty-Second,
Thirty-Third and Thirty-Fourth Matters. As I have found that the Twenty-Fourth Matter
did not convey the pleaded imputations525 the defence is only relevant to 10 of the matters
complained of.

[699] Section 29 relevantly provides:


“29 Defences of fair report of proceedings of public concern
(1) It is a defence to the publication of defamatory matter if the defendant
proves that the matter was, or was contained in, a fair report of any
proceedings of public concern.
(2) It is a defence to the publication of defamatory matter if the defendant
proves that –
(a) the matter was, or was contained in, an earlier published report of
proceedings of public concern; and
(b) the matter was, or was contained in, a fair copy of, a fair summary
of, or a fair extract from, the earlier published report; and
(c) the defendant had no knowledge that would reasonably make the
defendant aware that the earlier published report was not fair.
(3) A defence established under subsection (1) or (2) is defeated if, and
only if, the plaintiff proves that the defamatory matter was not
published honestly for the information of the public or for the
advancement of education.
(4) In this section –
proceedings of public concern means –

(f) any proceedings in public of an inquiry held under the law of any
country or under the authority of the government of any country
…”

524
Plaintiffs’ Submissions on Defences, [449].
525
See [304]-[317] above.
186

[700] The parties accept that the Grantham Floods Inquiry was a proceeding of public concern.
The defence in relation to the 10 matters complained of raise for consideration the
following two issues:
(a) Were each of the matters a fair report of the Grantham Floods Inquiry?
(b) If so, were the matters published honestly for the information of the public?

[701] There is no dispute as to the relevant legal principles:


(a) fairness, in the context of the defence reflects upon the accuracy of the report, and
not on the manner in which it speaks of the plaintiffs. It must be substantially
accurate and convey to the recipient an impression of the event not substantially
different from the impression the recipient would have received had he or she been
present during the proceeding;526
(b) errors are permitted. However, they should not substantially alter the impression
that the listener would have received had that person been present in the
proceeding;527
(c) a matter does not constitute a fair report merely because it repeats information
obtained from the proceeding of public concern. There must be a requirement of
attribution, that is, the matter must appear to bear the character of a report of the
proceedings in question;528
(d) it is also essential that the matter said to constitute a fair report be substantially
accurate and not contain omissions or inaccuracies that result in the impression or
effect that the actual proceedings are being substantially misrepresented in a manner
that defames the plaintiff;529 and
(e) the intermingling of extraneous material may detract from an assessment that a
report of proceedings is a fair and accurate report. The quality of fairness in a report
may be lost by an excessive intermingling of extraneous material. Whether the
extraneous material is sufficient to do this is a question of fact and degree. If the
extraneous material is excessive and cannot be distinguished from the report of the
proceedings, the report will not be privileged.530

[702] In my view, the defence fails at the threshold as the relevant 10 matters complained of
are not fair reports of the Grantham Floods Inquiry.

[703] The defendants’ written submissions in respect of this defence generally assert that each
of the relevant 10 matters contained a fair report of the progress of the Grantham Floods
Inquiry, including a summary of the evidence. For example, the defendants submit:

526
Defendants’ Outline of Argument – Part 1, [311].
527
Plaintiffs’ Submissions on Defences, [576]; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at
526; Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380.
528
Plaintiffs’ Submissions on Defences, [577]; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at
336-337, [18]-[19].
529
Plaintiffs’ Submissions on Defences, [578]; Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263 at
[30].
530
Plaintiffs’ Submissions on Defences, [579]; Curistan v Times Newspapers Ltd [2008] EWCA Civ 432 at [36],
[51].
187

“(a) The Twenty-Fifth Matter contained a fair report on the progress of the
GFCI including a summary of evidence given by several of the
Grantham residents;
(b) The Twenty-Seventh Matter contained a fair report of the fact that the
GFCI, called by the Premier, had begun, and summarised the evidence
given by several Grantham residents;
(c) The Thirtieth Matter contained a fair report of the first plaintiffs’
evidence at the GFCI public hearings.”531

[704] These submissions merely assert conclusions and do not assist the Court in determining
whether the defendants have discharged their onus of establishing that each of the 10
matters complained of was or was contained in a fair report.532

[705] The Court cannot overcome the conclusory nature of the defendants’ submissions by
comparing the broadcasts of the relevant matters complained of with a transcript of what
is said to be reported. No such comparison can be made in the present case because the
defendants have failed to tender into evidence the transcripts of the Grantham Floods
Inquiry apart from the evidence of the first plaintiff, Denis Wagner. As correctly
submitted by the plaintiffs, this failure means that there is no evidentiary basis for the
Court to engage in the task of assessing whether the relevant matters are truly fair
reports.533

[706] Even without being able to undertake such an assessment, I am of the view that each of
the 10 relevant matters was not a fair report of the Grantham Floods Inquiry proceedings.

[707] I have already analysed each of these broadcasts above in determining whether the
pleaded imputations were conveyed. Without repeating this analysis, the following points
may be made in respect of each of the 10 matters:
(a) I deal with the Twenty-Third Matter in [294] to [303] above. The Twenty-Third
Matter was a broadcast made on 20 July 2015 prior to the commencement of public
hearings of the Inquiry. Mr Jones commences the broadcast with the words “all
hell will break loose in Queensland today”. He 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 asserts that the Wagners were “gifted Oakey airspace.
Gifted. A national asset handed to a private company for nothing.” The reference
to the airport is wholly extraneous to any fair report of what is expected to occur at
the Inquiry. In the course of the broadcast Mr Jones makes the following three
statements:
● “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

531
Defendants’ Outline of Argument – Part 1, [313(c), (d) and (g)].
532
Section 29(1) of the Act.
533
Plaintiffs’ Submissions on Defences, [583].
188

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.”
Although Mr Jones describes the assertion that overburden created the 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 is asserting
these statements as matters of fact. As observed above, in listening to the broadcast
it becomes apparent that Mr Jones conveys to the listener that what will be argued
is true and what the Wagners say is false.534
(b) As is evident from my discussion of the Twenty-Fifth Matter in [318] to [331]
above, Mr Jones conveys to the ordinary reasonable listener the impression that the
outcome of the Grantham Floods Inquiry is a foregone conclusion. That conclusion
is that a man-made wall built by the Wagners at the quarry had burst creating a
surging wall of water which resulted in the Grantham Flood event. Additionally,
Mr Jones makes an extraneous derogatory remark that “Rumour has it of course
that they [the Wagners] have problems with their airport, unable to make a quid.”
(c) I deal with the Twenty-Seventh Matter in [338] to [349] above. In the
Twenty-Seventh Matter Mr Jones makes references to the Wagners as being “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.” These
statements are extraneous to any reporting of the proceedings of the Grantham
Floods Inquiry. Far from being a fair report of the proceedings, the delivery of this
broadcast by Mr Jones conveys to the ordinary reasonable listener that the
Grantham Floods Inquiry will find as a foregone conclusion that the Wagners are
culpable.
(d) I deal with the Twenty-Eighth Matter in [350] to [360] above. In the Twenty-Eighth
Matter, 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”. Having summarised what Mr Gillespie
and another witness Patrick Gallagher will say, Mr Jones states: “So much for the
natural features of the landscape rubbish that Wagner goes on about. Word is out
that the inquiry’s going to call Denis Wagner up as early as Wednesday”. Mr Jones
then raises the topic of bullying of potential witnesses in the context of the
allegation that Denis Wagner had been observed outside Mr Pinkerton’s house in
Grantham. 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
534
[299].
189

– it’s just appalling and the cover-up is being uncovered. And there will be no
escape for some. None.”
(e) I deal with the Twenty-Ninth Matter in paragraphs [361] to [371] above. 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. After informing the listener that someone is
not telling the truth, Mr Jones proceeds to inform 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. One of these matters is the allegation, which Mr Jones repeats,
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. Mr Jones makes
a factual assertion that “This is the Wagner tactic”. In the same broadcast Mr Jones
makes references to Denis Wagner being “in the dock” and the previous witness,
Mr McIntosh, becoming “the executioner”.
(f) I deal with the Thirtieth Matter in [372] to [385] above. Unlike the nine other
relevant matters the Court is able to compare the evidence given by Denis Wagner
before the Inquiry with the broadcast constituting the Thirtieth Matter. In the course
of his evidence before the Inquiry, Denis Wagner had the following exchange with
Mr Sofronoff QC:535
“MR SOFRONOFF: Over the course of the last four years since the
flood, as everybody knows, there have been allegations made that I’m
to investigate in this Commission concerning the significance of the
quarry to the flood, and it’s been publicly stated that a lot of people
believed that the quarry had something to do with, or had a lot to do
with the consequences to Grantham. How has that affected you?
DENIS WAGNER: We, as a family, suffered somewhat by the flood,
being part of this community, so it had an impact on us. It certainly had
an impact on our business.
MR SOFRONOFF: Well, it washed away your quarry?
DENIS WAGNER: Yes.
MR SOFRONOFF: When I say ‘washed away’, it certainly filled it and
no doubt – what about the machinery, was it---?
DENIS WAGNER: Yes, there was a lot of machinery that was rendered
inoperable after that, several trucks end loaders. However, I would say
that after sitting through these hearings for the last week, I have heard
some very inspirational stories.
MR SOFRONOFF: You’re quite right, and property is nothing in that
context?
DENIS WAGNER: Yes, that’s right. I’ve probably sort of heard some
stories that don’t ring true as well in the last week, but there is some
inspirational stories from the people of this region. I, and the family,
our family, have sympathy, you know, for those people that were

535
Exhibit 20, TB Vol 12, Tab 513, page 645, line 32 to page 646, line 10.
190

affected, and particularly those that lost relatives and friends, so, you
know, it’s harrowing stuff.”
The day after this evidence was given, Mr Jones broadcast the following statement:
“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?”
These statements made by Mr Jones in the course of the broadcast constituting the
Thirtieth Matter do not accurately express or summarise the evidence given by
Denis Wagner to the Inquiry. By his statements Mr Jones has substantially altered
the impression that the listener would have received had that person been present at
the Inquiry. In my view, not only is the impression substantially altered, Mr Jones
by his statements creates a false impression. Mr Jones’ statements ignore the effect
of Mr Wagner’s evidence accurately summarised by Mr Sofronoff QC: “You’re
quite right, and property is nothing in that context”. The omission of this
clarification by Mr Jones renders the Thirtieth Matter a wholly inaccurate report of
Mr Wagner’s evidence.
(g) I deal with the Thirty-First Matter in [386] to [396] above. This is not a fair report
of the proceedings before the Inquiry. Although some of the words used by
Mr Jones suggest that the outcome of the Inquiry is unknown, when listened to as
a whole, including the delivery and content of the broadcast, what is conveyed is
that the Wagners’ culpability, which has been the subject of a cover-up, will be
exposed. In the course of the broadcast Mr Jones asks 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 Nine video 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”.
(h) I deal with the Thirty-Second Matter in [397] to [413] above. The Thirty-Second
Matter is an interview between Mr Jones and Ms Gearing. While some aspects of
the proceedings before the Inquiry are touched upon, the broadcast is not a report
of those proceedings. The topics covered in the course of the interview include
Ms Gearing entering the quarry with Mr Koch and a photographer in May 2011 for
the purposes of taking photographs because large sections of the remaining
embankment at the quarry were being removed. Mr Jones also refers to there being
a cover-up: “… 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 impression created by Mr Jones is
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.
191

(i) I deal with the Thirty-Third Matter in [414] to [424] above. The 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”. Mr Jones follows this by
summarising the opening statements of the legal representatives for the victims to
the 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. The
statements made by Mr Jones in the course of this broadcast create the impression
that the leaked hydrology report cannot be believed.
(j) I deal with the Thirty-Fourth Matter in [425] to [431] above. The primary topic of
the broadcast is the hydrologist report in evidence given by Dr John Macintosh to
the Grantham Floods Inquiry. Mr Jones’ tone and delivery of this broadcast creates
a 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 the 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.”

[708] The defendants have failed to establish that any of the 10 matters complained of was a
fair report of the proceedings of the Grantham Floods Inquiry. Apart from the fact that a
number of the broadcasts intermingled extraneous material, the broadcasts conveyed
Mr Jones’ opinion as to what the Inquiry would ultimately conclude. This conclusion
was that the Wagners had illegally constructed a levee which collapsed, resulting in the
deaths of 12 people at Grantham. That is, the Inquiry would conclude that the Wagners
were culpable and sought to cover up their culpability. This defence fails.

Defence of contextual truth – section 26

[709] Section 26 of the Act provides:


“It is a defence to the publication of defamatory matter if the defendant proves
that –
(a) the matter carried, in addition to the defamatory imputations of which
the plaintiff complains, one or more other imputations (contextual
imputations) that are substantial; and
(b) the defamatory imputations do not further harm the reputation of the
plaintiff because of the substantial truth of the contextual imputations.”
192

[710] In Nationwide News Pty Ltd v Weatherup536 Applegarth J (with whom Fraser JA and
Douglas J agreed), explained the purpose of the defence:
“[44] Section 26 creates a defence which allows a defendant to rely upon
imputations arising from the matter which are additional to, and differ in
substance from, the defamatory imputations of which the plaintiff complains.
The defence is established if those additional contextual imputations are
substantially true, and if the defamatory imputations of which the plaintiff
complains ‘do not further harm the reputation of the plaintiff because of the
substantial truth of the contextual imputations’.
[45] The defence of contextual truth exists to permit a defendant to prove that
the substantial truth of more serious contextual imputations resulted in no
further harm being done to the plaintiff’s reputation by the imputations upon
which the plaintiff succeeds. It addresses a defect in the common law. The
rationale for the section is to deny a plaintiff an entitlement to recover
damages where the plaintiff has selected, and succeeded in establishing, a less
serious imputation than the more serious imputation which the defendant
selects and is able to prove are substantially true. In such a case, the
defendant’s justification of the more serious imputation may establish that the
plaintiff’s reputation was not actually harmed, as the plaintiff alleges, by the
less serious imputation.”

[711] The defendants seek to establish this defence in relation to the Ninth, Tenth, Eleventh and
Twenty-Seventh Matters to the extent that these four matters conveyed the following
imputations:
(a) Ninth Matter: that the 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;
(b) Tenth Matter: the plaintiff built an airport without seeking approvals which he knew
were required with disgraceful disregard for the interests of the community;
(c) Eleventh Matter: that the 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;
(d) Twenty-Seventh Matter: that the plaintiff 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.

[712] The defendants plead that in addition to the imputations relied upon by the plaintiffs, each
matter carries the following contextual imputations:
(a) the plaintiffs conduct business on their own terms, with disregard for the laws that
regulate them;

536
[2018] 1 Qd R 19 at [44]-[45].
193

(b) the plaintiffs conduct business on their own terms, with disregard for the impact
operations have on the broader community.537

[713] The defendants plead that the contextual meanings are substantially true on the basis of
the true facts pleaded in Attachment A to the defence.538 For the reasons articulated above
in [650] to [681], the defendants have failed to establish the substantial truth of the two
pleaded contextual imputations. Further, I am of the view that the contextual imputations
do not differ in substance from the plaintiffs’ defamatory imputations. The sting is
identical.539 As correctly submitted by the plaintiffs, the fact that the defendants seek to
justify the contextual imputations by reference to the same pleaded true facts as the
plaintiffs’ defamatory imputations demonstrates that the contextual imputations do not
differ in substance.540

[714] The defence of contextual truth fails.

Failure to accept reasonable offer to make amends – section 18

[715] Section 18 of the Act provides:


“Effect of failure to accept reasonable offer to make amends
(1) If an offer to make amends is made in relation to the matter in question
but is not accepted, it is a defence to an action for defamation against
the publisher in relation to the matter if—
(a) the publisher made the offer as soon as practicable after becoming
aware that the matter is or may be defamatory; and
(b) at any time before the trial the publisher was ready and willing,
on acceptance of the offer by the aggrieved person, to carry out
the terms of the offer; and
(c) in all the circumstances the offer was reasonable.
(2) In determining whether an offer to make amends is reasonable, a
court—
(a) must have regard to any correction or apology published before
any trial arising out of the matter in question, including the extent
to which the correction or apology is brought to the attention of
the audience of the matter in question taking into account—
(i) the prominence given to the correction or apology as
published in comparison to the prominence given to the
matter in question as published; and

537
FFAD, paragraph 140C(a)(i) and (ii).
538
FFAD, paragraph 140C(b).
539
Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77, [97]; Fairfax Media Publications
Pty Ltd v Zeccola (2015) 91 NSWLR 341 at [42], [46]-[47]; John Fairfax Publications Pty Ltd v Jones [2004]
NSWCA 205.
540
Plaintiffs’ Submissions on Defences, [605] citing John Fairfax Publications Pty Ltd v Hitchcock (2007) 70
NSWLR 484, [188].
194

(ii) the period that elapses between publication of the matter in


question and publication of the correction or apology; and
(b) may have regard to—
(i) whether the aggrieved person refused to accept an offer that
was limited to any particular defamatory imputations
because the aggrieved person did not agree with the
publisher about the imputations that the matter in question
carried; and
(ii) any other matter that the court considers relevant.”

[716] The defendants made an offer to make amends on 27 November 2015. The offer was
made within 28 days of receipt of service of these proceedings and was made on behalf
of all of the defendants. There is no issue therefore that the defendants made an offer to
make amends as soon as practicable after becoming aware that the matters were or may
be defamatory. The issue is whether, in all the circumstances, the offer was reasonable.541

[717] The letter of 27 November 2015 relevantly states:


“Our clients’ position is that at all times Mr Jones was concerned that there
were unanswered questions in relation to Grantham and an inquiry was
needed. When that report was handed down, our clients accepted, reported
on and commented on those findings without adverse comment to your
clients. To the extent that any of the broadcasts go beyond expressing that
concern and are defamatory of your clients, please pass on to your clients our
clients’ apology and regret.
If this offer is accepted, our clients will comply with section 15(1)(e) of the
Defamation Act and take reasonable steps to inform any person, to whom any
particular material containing the matters complained of has been given, that
the matter may be defamatory of the Wagners.
In accordance with Division 1 of Part 3 of the Defamation Act, our clients
offer to resolve your clients’ complaint on the following basis:
1. They will broadcast an apology to your clients, should they desire it, in
the terms of annexure ‘A’ hereto, or such amended wording as is
agreed.
2. They will pay the expenses reasonably incurred by your clients in this
matter as required by the Act, including in considering this offer to
make amends.
3. They will pay to each of Messrs Denis, John, Joe and Neill Wagner, or
to any charity which they each might prefer to nominate, the sum of
$50,000.
This letter is made without prejudice in accordance with Section 13 of the
Defamation Act. We note as a matter of courtesy to you and your clients that
should your clients decline to accept this offer to make amends and continue

541
Section 18(1)(c) of the Act.
195

proceedings, our clients will rely on this offer to make amends as a defence
to the claim and, in the alternative, by way of offer to make amends as a
defence to the claim and, in the alternative by way of mitigation. We draw
your attention to Section 18 of the Defamation Act 2005 in that regard.”542

[718] Attachment “A” to the letter is the draft retraction/apology. It states:


“I have spoken to you many times concerning the plight of the people of
Grantham following the severe flooding of 11 January 2011 which caused
vast property damage but, more importantly, the deaths by drowning of 12
people. I was at the forefront of calls for an inquiry into the cause of the flood
and why it had had such a devastating effect and caused an unprecedented
loss of life.
There are some things we will never know about the flooding but we now
have a detailed report as to many matters that previously had been uncertain
or unknown. Commissioner Sofronoff in the Grantham Floods Commission
of Inquiry report found that the Wagner quarry on the outskirts of Grantham,
and in particular a quarry wall he found was built by Wagners, did not
contribute significantly to the tragic deaths that occurred on that day, but were
rather the result of the weather event that caused the floods.
It is fair to say that I was extremely concerned by the building of the quarry
wall and the role local residents believed it had played in exacerbating the
flooding when it collapsed under the vast weight of water that built up behind
it. In fact, locals reported to me that they had heard a huge bang and reported
a wall of water surging down into the township of Grantham and they
believed that the quarry wall had been a significant factor. These locals wrote
to me and others begging for the matter to be reopened after only one and a
half pages were dedicated to Grantham in the Queensland Floods
Commission of Inquiry report.
I had been critical of the failure, of that earlier Inquiry, to investigate this
matter. I had also been critical of the conduct of the Wagner family. They
have asserted that some of my broadcasts amounted to defamation of them.
While I spoke out on these issues regularly, I did so due to my genuine
concern as to the treatment of the victims and survivors of Grantham and the
fact that, prior to the Sofronoff report, they had not received the answers they
deserved. My comments were made in good faith but I accept that I was
highly critical of the Wagners.
I was also highly critical of the Wagners in relation to an airport they built in
Toowoomba. The Wagners have claimed that I alleged the airport was illegal.
Of course, those of you who listen to me regularly know that my concern was
not the legality of the airport. My concern was about the government
processes which allowed it to be built. To the extent that any of my broadcasts
suggested that the airport was illegal I am fully prepared to retract that
suggestion. It was approved by the local council and given approval by all
the necessary regulatory bodies and is now fully operating.

542
Exhibit 21.
196

To the extent that the Wagners believe I have defamed them in relation to any
of these issues, then I apologise to each of them for that.”543

[719] In Zoef v Nationwide News Pty Ltd544 Gleeson JA (with whom Ward and Payne JJA
agreed) considered this defence. His Honour noted that the reasonableness of an offer of
amends is determined objectively.545 His Honour agreed with the observation of
McCallum J in Pedavoli v Fairfax Media Publications Pty Ltd:546
“The reasonableness of any monetary offer is necessarily informed by the
reasonableness of the correction, including the extent of its reach. To adopt
any different approach would subvert the object of the Act of encouraging the
non-litigious resolution of defamation disputes.”547

[720] Gleeson JA continued:


“Nonetheless, as McCallum J also noted, this is not to deny that ‘the
seriousness of the defamation undoubtedly remains a relevant factor in
assessing the reasonableness of the monetary component of an offer.’
It should be accepted that the assessment of the adequacy of the sum offered
is informed by the seriousness of the defamation and the other components of
the offer, including any proposed apology, and the fact that acceptance of it
would have made amends and obviated the need for a trial. In addition, the
adequacy of the monetary offer is informed by the risk of the proceedings
being successful, taking into account the defences raised by the defendant.”548

[721] In my view, determined objectively, the offer of amends was not, in all the circumstances,
reasonable. The 32 matters complained of were broadcast over the period 28 October
2014 to 20 August 2015. The matters conveyed very serious defamatory imputations.
These imputations included that the plaintiffs were culpable for the deaths of 12 people
in Grantham and were involved in a cover-up of their culpability for these deaths. This
cover-up included the plaintiffs conspiring with high level politicians. The imputations
also conveyed defamatory meanings that the plaintiffs engaged in conduct that was
corrupt, bullying and intimidatory. In this context, the offer of $50,000 for each plaintiff
was grossly inadequate. This assessment remains unchanged when one considers the
inadequacy of the suggested apology. The defendants submit that the monetary
compensation offered was adequate when one has regard to the other components of the
offer which included a “fulsome and very public apology”.549 I do not accept that the
suggested apology was “fulsome”. The plaintiffs submit that the proposed apology was

543
Exhibit 21.
544
[2016] NSWCA 283.
545
[2016] NSWCA 283 at [62].
546
[2014] NSWSC 1674 at [100], quoted in Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [72].
547
This is a reference to section 3(d) of the Act which identifies one of the objects of the Act as being to promote
speedy and non-litigious methods of resolving disputes about the publication of defamatory matter. Section
18 falls within Part 3 Division 1 of the Act which deals with resolution of civil disputes without litigation.
548
[2016] NSWCA 283 at [73]-[74].
549
Defendants’ Outline of Argument – Part 2, [445].
197

“woefully inadequate; indeed it was not an apology at all”.550 The plaintiffs refer to the
following passage from Spencer Bower, A Code of the Law of Actionable Defamation:551
“The terms of the apology must obviously be a factor in determining the
question whether it is full and frank, or reserved and dubious; whether it
covers the whole of the libel, or leaves behind any suggestion of insinuation.
The terms may not only be thought inadequate, but so disingenuous or
insulting, as to amount, if not to a repetition of the offence, at least to
something which would justify an enhancement of the damage.”

[722] The plaintiffs submit and I accept that while this passage is not precedent, its contentions
are compelling.552

[723] The draft apology commences by identifying Mr Jones’ role in calling for an inquiry into
the cause of the Grantham Flood event. In the second paragraph reference is made to the
finding of Mr Sofronoff QC, namely “that the Wagner Quarry on the outskirts of
Grantham, and in particular a quarry wall he found was built by the Wagners, did not
contribute significantly to the tragic deaths that occurred on that day, but were rather the
result of the weather event that caused the floods”. In introducing this finding, however,
the words proposed to be broadcast are:
“There are some things we will never know about the flooding but we now
have a detailed report as to many matters that previously had been uncertain
or unknown.”

[724] The apology then refers to locals reporting to Mr Jones that they had heard a huge bang
and reported a wall of water surging down to the township of Grantham, and that they
believed that the quarry wall had been a significant factor. Nowhere in the apology does
Mr Jones acknowledge that the broadcasts were defamatory of the Wagners. The apology
refers to the Wagners in these terms:
 “They have asserted that some of my broadcasts amounted to defamation of them.”
 “My comments were made in good faith but I accept that I was highly critical of
the Wagners.”
 “The Wagners have claimed that I alleged the airport was illegal. Of course, those
of you who listen to me regularly know that my concern was not the legality of the
airport.”
 “To the extent that any of my broadcasts suggests that the airport was illegal I am
fully prepared to retract that suggestion.”
 “To the extent that the Wagners believed I have defamed them in relation to any of
these issues, then I apologise to each of them for that.”

[725] I accept the plaintiffs’ submission that the apology does not contain an expression of
regret by the defendants for the publications, nor does it contain an unqualified
acknowledgment of the falsity of the defamations and a withdrawal of them. As

550
Plaintiffs’ Supplementary Submissions, [33].
551
Sweet & Maxwell, 2nd ed, 1923, at page 199.
552
Plaintiffs’ Supplementary Submissions, [34].
198

submitted by the plaintiffs, the apology “sought to subordinate the gross defamation of
the Wagner family to mere matters that the family have ‘asserted’ and ‘believe’.”553

[726] Given the very serious nature of the defamatory imputations, viewed objectively, the
defendants faced considerable difficulties in establishing any of the pleaded defences.
This is to be contrasted with the position of the plaintiffs 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.

[727] The defendants submit that in respect of the assessment of the adequacy of the monetary
amount offered, the aggravating factors now relied upon by the plaintiffs are much more
extensive than what had been pleaded at the time the offer to make amends was made.554
While this may be accepted, the offer of $50,000 for each plaintiff in the context of the
draft apology was, in my view, wholly inadequate irrespective of any consideration of the
additional aggravating factors.

[728] This defence fails.

Damages

A single sum – section 39

[729] As the defendants have failed to establish any defence to the publication of defamatory
matter and as damage to reputation is presumed, there must be an award of damages in
favour of each plaintiff.

[730] I have determined that in relation to the 32 matters complained of, the Twelfth,
Twenty-Second and Twenty-Fourth Matters did not convey the pleaded imputations. Of
the remaining 29 matters complained of, I have determined that 76 of the pleaded
imputations are conveyed and a further four imputations not substantially different from
the plaintiffs’ pleaded meanings were also conveyed.

[731] As to the Eleventh Matter complained of, I have determined that imputation (c) is
conveyed only by 2GB and Mr Jones, and in the result the plaintiffs’ claim against the
fourth defendant, Mr Cater, is dismissed.

[732] As to the remaining 29 matters complained of, 2GB and Mr Jones admit responsibility
for the publication of 27 of the matters, and 4BC and Mr Jones admit responsibility for
the publication of the Fifth and Sixth Matters.

[733] Section 39 of the Act provides that if the court in defamation proceedings finds for the
plaintiff as to more than one cause of action, the court may assess damages in a single
sum. Pursuant to s 8, a person has a single cause of action for defamation in relation to
the publication of defamatory matter about the person even if more than one defamatory
imputation about the person is carried by the matter. In the present case each plaintiff has
553
Plaintiffs’ Supplementary Submissions, [36].
554
Defendants’ Outline of Argument – Part 2, [445(c)].
199

27 separate causes of action against 2GB and Mr Jones and two separate causes of action
against 4BC and Mr Jones. Damages may therefore be assessed as a single sum for each
plaintiff in respect of the publication by 2GB and Mr Jones of the 27 matters complained
of (apart from the Fifth and Sixth Matters) and as a single sum for each plaintiff in respect
of the publication by 4BC and Mr Jones of the Fifth and Sixth Matters.

[734] Although some imputations conveyed are only of and concerning the first or second
plaintiffs, none of the parties submitted that in assessing damages the Court should seek
to distinguish between individual plaintiffs on this basis.

The plaintiffs’ claim for damages

(a) General damages – principles

[735] Each plaintiff claims compensatory damages for defamation to:


(a) vindicate his reputation;
(b) compensate him for the distress and embarrassment caused by the publication of
the imputations conveyed by the matters complained of;
(c) reflect the extent of publication including the ordinary grapevine effect;
(d) be sufficient to convince a person to whom the imputations were published or
republished of the baselessness of them; and
(e) provide reparation for the damage to his reputation.555

[736] These claims as pleaded, recognise that an award of damages in a defamation case serves
three purposes, namely to provide consolation for hurt to feelings, compensation for
damage to reputation, and vindication of the plaintiff’s reputation.556 John Dixon J in
Wilson v Bauer Media Pty Ltd557 conveniently summarised the principles relevant to the
assessment of general damages:
“(a) … The assessment of general damages is necessarily imprecise and,
accordingly, damages are ‘at large’ in the sense that they cannot be
arrived at through calculation or the application of a formula.558
(b) The sum awarded must demonstrate vindication of the plaintiff’s
reputation. The level of damages ought to reflect ‘the high value which
the law places upon reputation and, in particular, upon the reputation of
those whose work and life depends upon their honesty, integrity and
judgment’.559

555
SFASC, paragraph 113.
556
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60 per Mason CJ, Deane, Dawson and Gaudron JJ;
Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 at [25] per Applegarth J.
557
[2017] VSC 521 at [59](a)-(g).
558
Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9 at [89]-[91] per McClellan CJ at CL; Rogers v
Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327; Cassell & Co Ltd v Broome [1972] UKHL 3;
[1972] AC 1027 at 1071 per Lord Hailsham of St Marylebone LC.
559
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at 113, [446]; Crampton v Nugawela [1996]
NSWSC 651; (1996) 41 NSWLR 176 at 195 per Mahoney A-CJ, applied in John Fairfax Publications Pty Ltd
v O’Shane (No 2) [2005] NSWCA 291 at [3] per Giles JA.
200

(c) The gravity of the libel and the social standing of the parties are relevant
to assessing the quantum of damages necessary to vindicate the
plaintiff.560 The award must be sufficient to convince a bystander of the
baselessness of the charge.561 At common law, it was legitimate to take
into account not only what the plaintiff should receive but also what the
defendant ought to pay.
(d) Section 34 of the Act requires that the court in determining the amount
of damages to be awarded in any defamation proceedings is to ensure
that there is an appropriate and rational relationship between the harm
sustained by the plaintiff and the amount of damages awarded.562
(e) The extent of publication and the seriousness of the defamatory sting
are pertinent considerations.
(f) In determining the damage done to a plaintiff’s reputation, the court
should also take into account the ‘grapevine’ effect arising from the
publication of the defamatory material.563 This phenomenon is no more
than the realistic recognition by the law that, by the ordinary function
of human nature, the dissemination of defamatory material is rarely
confined to those to whom the matter is immediately published.564 It is
precisely because the ‘real’ damage cannot be ascertained and
established that damages are at large. It is often impossible to track the
scandal and to know what quarters the poison may reach.565 The award
of damages must be sufficient to ensure that, the damage having spread
along the ‘grapevine’, and being apt to emerge ‘from its lurking place
at some future date’, a bystander will be convinced ‘of the baselessness
of the charge’.566
(g) It is well accepted that injury to feelings may constitute a significant
part of the harm sustained by a plaintiff, and for which a plaintiff is to
be compensated by damages.567 Injured feelings include the hurt,
anxiety, loss of self-esteem, sense of indignity and the sense of outrage
felt by the plaintiff.568”

560
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 61 per Mason CJ, Deane, Dawson
and Gaudron JJ.
561
Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 at 194 per Mahoney A-CJ.
562
The reference to “the harm sustained by the plaintiff” in s 34 of the Act comprehends the range of harms to the
plaintiff which, at common law, the three purposes seek to compensate: Cerutti v Crestside Pty Ltd [2014]
QCA 33 at [27]; Robert v Prendergast [2014] 1 Qd R 357 at [23].
563
Ley v Hamilton (1935) 153 LT 384 at 386 per Lord Atkin; Crampton v Nugawela [1996] NSWSC 651; (1996)
41 NSWLR 176 at 193–5 per Mahoney A-CJ, and at 198 per Handley JA; Cassell & Co Ltd v Broome [1972]
UKHL 3; [1972] AC 1027 at 1071 per Lord Hailsham of St Marylebone LC; Palmer Bruyn & Parker Pty Ltd
v Parsons [2001] HCA 69; (2001) 208 CLR 388 at 416 [88] per Gummow J; Prendergast v Roberts [2012]
QSC 144 at [31] per Mullins J.
564
Belbin v Lower Murray Urban & Rural Water Corporation [2012] VSC 535 at [217] per Kaye J.
565
Ley v Hamilton (1935) 153 LT 384 at 386 per Lord Atkin.
566
Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 at 194–5 per Mahoney A-CJ.
567
Belbin v Lower Murray Urban & Rural Water Corporation [2012] VSC 535 at [242] per Kaye J.
568
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71.
201

(b) Aggravated damages – principles

[737] The plaintiffs plead that the hurt suffered by each of them has been aggravated by the
following matters:
(a) each plaintiff’s knowledge that the imputations conveyed are untrue;
(b) each plaintiff’s knowledge of the refusal of the defendants to retract the imputations
or any of them, or to apologise “for their relentless campaign of vilification of each
of the plaintiffs”.569

The plaintiffs further plead570 that in making the publications complained of the
defendants were actuated by malice in that the predominant and improper motive for their
publication was to harm the plaintiffs. This allegation is particularised by reference to
the matters set out in (c) to (f) below. The plaintiffs rely on these matters in further
support of their claim for aggravated damages on the basis that the matters particularised
constitute conduct which is improper, unjustifiable or lacks bona fides:571
(c) Mr Jones was motivated by a desire to injure the plaintiffs’ reputation. Such
motivation to injure is to be inferred from the following matters:
(i) the publication of the matters complained of between 28 October 2014 and
20 August 2015 “as part of a campaign of vilification” against each of the
plaintiffs;572
(ii) the publication, prior to the matters complained of, of a further 53 broadcasts
of and concerning the plaintiffs or one or more of them;
(iii) the intrinsically vicious and spiteful wording used in the matters complained
of;
(iv) the fact that Mr Jones failed to make any or any adequate enquiry of the
plaintiffs or any persons who could have informed Mr Jones, and therefore
2GB and 4BC, of the falsity of the imputations;
(v) the failure of Mr Jones to make contact with the plaintiffs to ascertain their
responses to the allegations made in the matters complained of;
(vi) the failure by Mr Jones to inform the plaintiffs of his intention to publish the
matters complained of, or to allow the plaintiffs any opportunity or adequate
opportunity to challenge the allegations contained in them;
(vii) Mr Jones’ reliance on Heather Brown for information, a person who he knew
or ought to have known was hostile towards the plaintiffs.
(d) the unjustifiable plea in the Defence filed on behalf of the defendants that the
imputations as pleaded in the statement of claim are substantially true in
circumstances where the defendants have no proper basis to advance a defence of
truth or contextual truth;
(e) when publishing the matters complained of (apart from the Fifth and Sixth Matters)
2GB and Mr Jones:

569
SFASC, paragraph 114(a) and (b).
570
TFAR, paragraph 74(a), (b), (d), (e), (f) and (g).
571
TFAR, paragraph 74.
572
TFAR, paragraph 74(b)(i)(A).
202

(i) to their knowledge had no or no sufficient factual basis to publish the


imputations conveyed;
(ii) further or alternatively, knew or had reason to believe that the imputations
particularised in the proceedings were false or were and are recklessly
indifferent to the truth or falsity of the imputations conveyed such that 2GB
and Mr Jones were and are wilfully blind to the truth or falsity of those
imputations;
(f) when publishing the Fifth and Sixth Matters complained of, Mr Jones and 4BC:
(i) to their knowledge had no or no sufficient factual basis to publish the
imputations conveyed;
(ii) further or alternatively, knew or had reason to believe that the imputations
were false or were and are recklessly indifferent to the truth or falsity of the
imputations such that Mr Jones and 4BC were and are wilfully blind to the
truth or falsity of those imputations.

[738] In addition to the pleaded matters (a)-(f) above, the plaintiffs in their written submissions
further allege that throughout the proceeding, the defendants have acted in an improper
and unjustifiable manner that is lacking in bona fides and which has increased the harm
suffered by each plaintiff. This conduct includes the following:
(g) each of the defendants have failed, or refused to apologise to the plaintiffs despite
being unable to justify the allegations they have made about the plaintiffs and in
circumstances where the defences are clearly hopeless. That an apology is called
for is, according to the plaintiffs, self-evident;
(h) the defendants have pleaded and persisted with a variety of justification defences
even though it must have been clear that they would fail, even on the very scant
particulars provided. None of these defences should have been pleaded, let alone
maintained. It must have been obvious to the defendants at all times that none of
their defences in this proceeding was of any merit whatsoever;
(i) in Mr Jones’ evidence he gratuitously attacked the plaintiffs’ reputations and
repeated many defamatory assertions, often in answers that bore no connection with
the questions he was asked;
(j) the conduct of Mr Jones discovered during the proceeding whereby he had an email
exchange with the Chief Executive Officer of Qantas, Mr Alan Joyce. The plaintiffs
submit that the inference to be drawn from this email exchange is that Mr Jones was
motivated by a desire to injure the plaintiffs and their business by ensuring that
Qantas did not fly into the Wellcamp Airport.573

[739] The plaintiffs’ pleaded claim for aggravated damages reflects the principles identified by
the High Court in Triggell v Pheeney574 and Carson v John Fairfax & Sons Ltd.575 In
Carson Brennan J stated:
“Damages may be aggravated or mitigated by the manner in which the
defamatory matter was published and by the subsequent conduct of the

573
Plaintiffs’ Submissions, [852]-[862] and [880]-[888].
574
(1951) 82 CLR 497 at 514
575
(1993) 178 CLR 44 at 71.
203

defendant. Conduct of the defendant from the time of publication until


verdict (including conduct at the trial …) is relevant. In Broome v Cassell &
Co Lord Reid, speaking of the bracket within which any sum could be
regarded as not unreasonable compensation, said:
‘It has long been recognised that in determining what sum within
that bracket should be awarded, a jury, or other tribunal, is entitled
to have regard to the conduct of the defendant. He may have
behaved in a high-handed, malicious, insulting or oppressive
manner in committing the tort or he or his counsel may at the trial
have aggravated the injury by what they there said. That would
justify going to the top of the bracket and awarding as damages
the largest sum that could fairly be regarded as compensation.’
Evidence of the defendant’s conduct is admissible also in proof of malice.”

[740] Brennan J’s reference to conduct being admissible in proof of malice must be understood
in the context of s 36 of the Act which provides:
“State of mind of defendant generally not relevant to awarding damages
In awarding damages for defamation, the court is to disregard the malice or
other state of mind of the defendant at the time of the publication of the
defamatory matter to which the proceedings relate or at any other time except
to the extent that the malice or other state of mind affects the harm sustained
by the plaintiff.”

[741] In Carson, Brennan J considered a similar provision, being s 46(3)(b) of the Defamation
Act 1974 (NSW). His Honour observed:
“Evidence of the defendant's conduct is therefore relevant and admissible on
the issue of compensatory damages, whether or not it tends to prove malice,
but only so far as that conduct exacerbates or ameliorates the consequences
of the original publication or the plaintiff's injured feelings.”576

[742] Conduct of a defendant which is improper, unjustifiable or lacking in bona fides is a basis
upon which aggravated damages are awarded. Such conduct does not have to be
malicious.577 The relevant conduct, however, must affect the harm sustained by the
plaintiff either by increasing the injury to the plaintiff’s feelings or the injury to the
plaintiff’s reputation. As observed by Applegarth J in Cerutti:
“Thus malice or a reckless indifference to the truth or falsity of the publication
does not warrant, of itself, an award of aggravated damages. However, if the
plaintiff is aware of the defendant’s state of mind and this aggravates the
plaintiff’s hurt feelings, then damages may be increased in order to
appropriately compensate.”578

576
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 72.
577
Plaintiffs’ Further Supplementary Submissions, [7].
578
Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 at [40].
204

[743] Where conduct of a defendant which is improper, unjustifiable or lacking in bona fides is
established, an increase to a plaintiff’s sense of hurt may be presumed from all the
evidence.579

[744] The failure to publish a retraction or an apology may make an award of aggravated
damages appropriate if it amounts to a continuing assertion of the defamatory
imputations.580

[745] A damages award is not usually broken down into components for pure compensatory
damages and aggravated compensatory damages.581

(c) The plaintiffs’ reliance on 53 prior broadcasts

[746] As is evident from the plaintiffs’ pleaded claim for aggravated damages, the plaintiffs
seek to rely on the publication, prior to the matters complained of, of a further 53
broadcasts. These 53 broadcasts are one of a number of matters from which the plaintiffs
allege an inference may be drawn that Mr Jones, in broadcasting the matters complained
of, was motivated by a desire to injure the plaintiffs’ reputation.582

[747] The First Matter complained of was broadcast on 28 October 2014. The 53 broadcasts
pre-date 28 October 2014. They span a period from 23 September 2013 to 16 October
2014.583

[748] The issue is whether the plaintiffs may rely on these 53 broadcasts in respect of their
claim for aggravated damages.

[749] Ordinarily for aggravated damages, it is the defendants’ conduct from the commission of
the tort up until the day of judgment that can be considered.584 As correctly submitted by
the defendants:
“The important aspect about aggravated damages is that it focusses on the
additional hurt suffered. … and it cannot have been aggravated merely by, for
example, the fact that there were defamatory publications made before the
publications that are sued upon.”585

579
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at 114, [446(g)] where White J refers to
Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653 for the proposition that “conduct with those
characteristics will be such as to increase the harm which the defamation has caused or may be supposed to
have caused”.
580
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at 114 [446(h)].
581
Wilson v Bauer Media Pty Ltd [2017] VSC 521 at [59(h)] citing Lower Murray Urban and Rural Water
Corporation v Di Masi (2014) 43 VR 348 at 392, [116].
582
See [737(c)] above.
583
The transcripts of the 53 broadcasts are Exhibit 20, TB Vol 3, Tab 156 to Vol 4, Tab 213, and Exhibits 24-28.
A summary of the 53 broadcasts are an attachment to the Plaintiffs’ Submissions.
584
See [739] above and the reference to Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71.
585
Defendants’ Outline of Argument – Part 2, [440].
205

[750] The plaintiffs could not rely on the 53 previous broadcasts as additional defamations. In
John Fairfax Publications Pty Ltd v Jones586 the plaintiff’s pleaded claim for aggravated
damages relied on the publication of articles, prior to the publication of the matters
complained of. Hodgson JA (with whom Spigelman CJ and Ipp JA on this aspect agreed),
in refusing to interfere with the decision at first instance not to strike out the plaintiff’s
claim for aggravated damages, observed:
“In my opinion, the plaintiff is not relying on the additional material as
additional defamations, and indeed could not do so; and there is no need to
proceed as if additional defamations were alleged and no need to comply with
the requirements for claiming damages for defamation. Thus there is no need
for the plaintiff to specify imputations. I would add to this that, in my opinion,
the plaintiff cannot seek to increase damages by reference to injury to
reputation caused by the content of this additional material: although
aggravating conduct may increase damages by a way of increasing injury to
reputation, in my opinion this will only be through adding to the effect of the
defamation actually sued on.”587

[751] The danger of relying on subsequent publications for the purposes of increasing damages
was identified by Gray J in Collins Stewart Ltd & Anor v The Financial Times Ltd (No
2):588
“The starting point for any discussion of the legitimacy of the use to which
Collins Stewart wish to put the subsequent articles is that they could, if they
had chosen to do so, have complained of them as separate causes of action.
Issues of meaning and any defences could then have been debated at trial in
the usual way. In the event that Collins Stewart failed to establish that any of
the subsequent articles was defamatory of them or The Financial Times
established a defence to it, no question of additional damages would arise. If
on the other hand liability were to be established against the newspaper,
Collins Stewart would be entitled to further separate awards after the judge
had directed the jury (or himself) to take care to avoid double-counting. This
is a familiar and workable scenario.

My starting point is therefore that there are sound reasons both of principle
and of practice why a claimant, whether an individual or a corporation, should
not be permitted to seek to recover increased damages in respect of the
publication by the defendant of article A by reason of the publication by that
defendant of subsequent articles B and C which are not themselves the subject
of complaint.”589

586
[2004] NSWCA 205.
587
[2004] NSWCA 205 at [94].
588
[2005] EWHC 262 (QB).
589
[2005] EWHC 262 (QB) at [24] and [27]. These statements of Gray J are equally applicable to previous
publications as they are to subsequent publications.
206

[752] As is evident from the plaintiffs’ pleaded case, the 53 publications are relied on for a
limited purpose. The plaintiffs refer to the following statement in Gatley on Libel and
Slander:590
“Evidence has been held to be admissible which shows that the defendant has
published other defamatory words about the claimant, whether such words
were or were not connected with the subject-matter of the action, and whether
publication took place before or after the publication giving rise to the action.
The reason was explained by Tindal CJ:
‘Either party may with a view to damages, give evidence to prove
or disprove the existence of a malicious motive in the mind of a
publisher of defamatory matter.’591
But subsequent publications which shed light on the defendant’s motive or
state of mind, and thus go to prove malice and consequent injury to the
claimant’s feelings, should not be confused with publications relied on to
increase damages for injury to reputation. …
Nonetheless, evidence of matters tending to establish malice on the part of
the defendant is, as a general rule, admissible to support a claim for
aggravated damages. As the damages are compensation for the additional
injury to the claimant’s feelings, it is submitted that the conduct of the
defendant from which malice is to be inferred must have been known to or
have come to the knowledge of the claimant.”

[753] McGregor on Damages592 deals with “other derogatory statements about the claimant” in
the following terms:
“Any other derogatory statements made of the claimant by the defendant may
be given in evidence to show malice. At one time there was a conflict of
authority as to whether a derogatory statement which was itself defamatory
was admissible, particularly if subsequent to the statement sued upon; the
courts clearly feared that the jury would give damages for the other
defamation as a separate cause of action, and tended to allow such evidence
only if given to explain the meaning of the statement sued upon where that
was ambiguous or, sometimes, if the other defamatory statement was in
substance the same as or related to that sued upon. Such limitations were
swept away by the decision in Pearson v Lemaitre, which in 1843 established
the modern law.”

[754] The defendants accept that a defendant’s conduct prior to publication may be relevant to
aggravated damages. Such pre-publication conduct must, however, demonstrate improper
or unjustifiable conduct, or “a malicious attitude”.593 As pleaded, the plaintiffs do not
seek to rely on the 53 previous broadcasts for a purpose other than inferring that Mr Jones
was motivated by a desire to injure the plaintiffs’ reputations. Any consideration of the
53 broadcasts in respect of aggravated damages is limited to the plaintiffs’ pleaded case.
590
Gatley on Libel and Slander, 12th ed, at 32.57.
591
Pearson v Lemaitre (1843) 5 M. & Gr. 700 at 719-720.
592
James Edelman, a Justice of the High Court of Australia, McGregor on Damages, Sweet & Maxwell, 20th ed,
at 46-048 and 46-049.
593
Defendants’ Outline of Argument – Part 2, [440].
207

(d) Section 35 – statutory cap

[755] Section 35 of the Act relevantly provides:


“(1) Unless the court orders otherwise under subsection (2), the maximum
amount of damages for non-economic loss that may be awarded in
defamation proceedings is $250000 or any other amount adjusted in
accordance with this section from time to time (the maximum damages
amount) that is applicable at the time damages are awarded.
(2) A court may order a defendant in defamation proceedings to pay
damages for non-economic loss that exceed the maximum damages
amount applicable at the time the order is made if, and only if, the court
is satisfied that the circumstances of the publication of the defamatory
matter to which the proceedings relate are such as to warrant an award
of aggravated damages.”

[756] Section 35(3) permits the Minister, on or before 1 July of each year, to declare the amount
that is to apply from that date. The maximum amount applies as at the date the damages
are awarded. On 25 May 2018, the Queensland Attorney-General declared that on and
from 1 July 2018 the maximum amount of damages that may be awarded for
non-economic loss in defamation proceedings is $398,500.594 Pursuant to s 35(2), this
cap may be exceeded “if, and only if, the court is satisfied that the circumstances of the
publication of the defamatory matter to which the proceedings relate are such as to
warrant an award of aggravated damages”. For reasons which are developed below, I am
satisfied that the circumstances of the publication of the matters complained of are such
as to warrant an award of aggravated damages.

[757] The defendants in their written submissions assert that the cap retains relevance for the
setting (even if only nominally) of the amount prior to the determination of any
component for aggravated damages:
“The defendants accept that, as the terms of s 35 made plain, the cap may be
exceeded by an award of damages for non-economic loss, however the
starting point must be what would be awarded but for the aggravating
conduct. Were it otherwise, the cap would be meaningless. It is clear that
this is the case, for two reasons. First, the statutory mandate is that the cap
only be exceeded if the circumstances of the publication are such as to mean
aggravated damages ought to be brought to account. Secondly, it would mean
that the non-aggravated component of an award of damages could be different
in cases where an award of aggravated damages were available, and where it
were not. Comparability between cases where there was and was not an
aggravated component would become impossible.”595

[758] At the time of making that submission, there were decisions at first instance that had
rejected the defendants’ construction of s 35. These decisions include those of John

594
Attorney-General (Qld), “Defamation Act 2005 – declaration under section 35(3)” in Queensland Government
Gazette, No 19, 25 May 2018 at page 202.
595
Defendants’ Outline of Argument – Part 2, [438].
208

Dixon J in Wilson v Bauer Media Pty Ltd,596 and Chaney J in Rayney v The State of
Western Australia [No 9].597 John Dixon J considered the statutory text of s 35(2) to be
unambiguous:
“Section 35(2) postulates a condition for its application, being that the court
be satisfied that the circumstances of the publication of the defamatory matter
to which the proceedings relate are such as to warrant an award of aggravated
damages. If and only if such circumstances are found, the court is no longer
constrained by the statutory cap under s 35(1) and may order a defendant in
defamation proceedings to pay damages for non-economic loss that exceed
the maximum damages amount applicable at the time the order is made.
The expression ‘damages for non-economic loss’, like the expression
‘maximum damages amount’, does not refer to ‘an award of aggravated
damages’. That expression refers to general damages that, as I have noted,
are compensatory damages for non-economic loss that provide consolation
for hurt to feelings, compensation for damage to reputation, and vindication
of the plaintiff’s reputation and that may, in appropriate circumstances, be
assessed to reflect aggravation caused to a plaintiff’s hurt or injury by reason
of some conduct of the defendant.”598

[759] Chaney J in Rayney followed the decision of John Dixon J in Wilson, finding that once
the court determines that aggravated damages are justified on the application of the
normal common law test, the cap has no application.599

[760] On the last day of the trial, 14 June 2018, the Victorian Court of Appeal published its
reasons in Bauer Media Pty Ltd v Wilson (No 2).600 The parties were given the
opportunity to file further written submissions as to the effect of this decision.

[761] The Court of Appeal upheld John Dixon J’s construction of s 35(2):
“The judge was correct to construe s 35(2) as empowering a court to lift both
pure compensatory damages and aggravated compensatory damages above
the cap when the condition for the exercise of the discretionary power is
enlivened. That condition is identified in the second limb of s 35(2), namely,
if, and only if, an award of aggravated damages is warranted. The reference
to ‘aggravated damages’ is singled out from the collective expression
‘damages for non-economic loss’ only as a means of specifying under what
conditions the discretionary power can be exercised.
We further consider that the judge was correct to acknowledge that the
direction under s 34, to ensure there is an appropriate and rational relationship
between the harm sustained and the damages awarded, continues to apply
even where the discretionary power is used to exceed the cap. Section 34 thus
operates as an ever-present guide to ensure remedies are fair and effective in
the context of achieving the objects of the Act with the aim of ensuring

596
[2017] VSC 521.
597
[2017] WASC 367.
598
Wilson v Bauer Media Pty Ltd [2017] VSC 521 at [76]-[77].
599
Rayney v The State of Western Australia [No 9] [2017] WASC 367 at [848 – [855].
600
[2018] VSCA 154 per Tate, Beach and Ashley JJA.
209

consistency of awards in defamation proceedings across jurisdictions and to


correct any imbalance with awards of damages for personal injuries.”601

The Court of Appeal continued:


“We accept that when a court is satisfied that an award of aggravated damages
is appropriate the court is entitled to make an order for damages for non-
economic loss that exceeds the statutory cap in respect of both pure
compensatory damages and aggravated compensatory damages. In other
words, the statutory cap does not then constrain the court’s assessment of
damages for non-economic loss; when an award of aggravated damages is
warranted, the statutory cap is inapplicable.
We consider that if the Legislature seeks to confine the extent to which the
maximum damages amount can be exceeded to the award of aggravated
damages alone, it ought consider re-drafting s 35(2) to insert as the closing
words of s 35(2) ‘but only to the extent that an award of aggravated damages
is warranted’ or some other appropriate express qualification.”602

[762] The defendants have invited the Court not to follow the reasoning of the Victorian Court
of Appeal on the basis that the decision, which is not binding on this Court, was
incorrectly decided. No submission has been made by the defendants that the decision of
the Victorian Court of Appeal was plainly wrong.603 This Court should not depart from
a decision of an intermediate appellate court in another jurisdiction on the interpretation
of uniform national legislation unless convinced the decision is “plainly wrong”. 604 For
my part, I respectfully agree with the Victorian Court of Appeal’s construction of s 35(2).

General Damages

(a) The plaintiffs’ reputations

[763] Good reputation is presumed in favour of each of the plaintiffs.605 The plaintiffs also led
evidence of their good reputations generally. They called six reputational witnesses, each
of whom knew one or more of the plaintiffs. None of these witnesses were
cross-examined. Irene Myers served with Denis Wagner on the Jondaryan Council and
remained in contact with him. Ms Myers described Denis Wagner’s reputation as
follows:
“… he is a very honest young man. And he has certain principles of his own
which he makes decisions with that are usually spot on. He mixes well with

601
Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 at [243]-[244].
602
[2018] VSCA 154 at [249]-[250].
603
Defendants’ Supplementary Outline, [27].
604
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151-152, [135] per Gleeson CJ,
Gummow, Callinan, Heydon and Crennan JJ; Australian Securities Commission v Marlborough Gold Mines
Ltd (1993) 177 CLR 485 at 492 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ.
605
Hallam v Ross (No 2) [2012] QSC 407 at [15] and Toben v Nationwide News Pty Ltd; Toben v Mathieson
[2015] NSWSC 1784 at [29].
210

everybody. He’s got compassion for his fellow man. And he does not at any
one time cut you short.”606

[764] William Baskett is a transport operator and had dealings in this role with Denis Wagner.
Mr Baskett’s evidence was that Denis Wagner had a very good reputation “both as a
businessman, a family man, a man who worked for the community”. 607 He referred to
Denis Wagner as being “well respected” in the transport industry but also in the
community around Toowoomba. He was also respected for his involvement with junior
hockey. Mr Baskett also knew John and Neill Wagner. He considered that Neill Wagner
had a good reputation around the town and in the transport industry. 608 He described
Neill Wagner as having “an excellent reputation”609 and John Wagner having “a very
good reputation”.610

[765] Michael Ezzy worked for Wagners for 27 years. He knows each of the plaintiffs.
Mr Ezzy described Denis Wagner’s reputation as “hard working, reliable, approachable,
honest, a man of integrity, compassionate, sympathetic and generous”.611 Mr Izzy stated
that John, Neill and Joe Wagner had the same reputations.612

[766] David McDonald has known Neill Wagner since 2003 both as a friend and a business
acquaintance. He described Neill Wagner’s reputation as “one of integrity, extremely
strong family man, very community minded and would do anything for you”.613

[767] Melissa Taylor first met John Wagner in 2004-2005 through the Toowoomba Chamber
of Commerce. She described John Wagner’s reputation as follows:
“John’s reputation is very much of a strong businessman with great vision, a
tough businessman but very fair with great integrity and honesty.”614

[768] Michael Doohan has known John Wagner for approximately 20 years. He referred to
John Wagner founding the charity “It’s A Bloke’s Thing”.615 Mr Doohan stated that John
Wagner was held in high regard within the community, especially within the business
community.616

[769] The defendants criticise the evidence of the reputational witnesses (apart from Ms Myers)
on the basis that their evidence was restricted to the plaintiffs’ reputations as at September
2013, which pre-dates the First Matter complained of by approximately one year.617
There is, however, no suggestion that each of the plaintiffs had anything other than an

606
T 11-7, lines 5-9.
607
T 11-9, lines 43-44.
608
T 11-11, lines 7-9.
609
T 11-11, line 10.
610
T 11-11, line 15.
611
T 11-14, lines 7-9.
612
T 11-14, lines 10-22.
613
T 11-15, lines 35-36.
614
T 11-17, lines 9-11.
615
T 11-27, lines 4-11.
616
T 11-27, lines 23-24.
617
Defendants’ Outline of Argument – Part 2, [415].
211

excellent reputation for honesty and integrity both in business and community circles
prior to the publication of the First Matter complained of.

(b) Extent of publication

[770] The extent of publication of the relevant matters complained of cannot be precisely
ascertained. From the following factors, however, I find that the publication of the
matters complained of was very extensive.

[771] An examination of the relevant correspondence between the solicitors for the plaintiffs
and the solicitors for the defendants618 reveals that the defendants provided only audience
figures for the Brisbane and Sydney metropolitan areas. These figures are as follows:

First Matter – 148,000 (Sydney metro)


Second Matter – 146,000 (Sydney metro)
Third Matter – 142,000 (Sydney metro)
Fifth Matter – 14,000 (Sydney metro)
Sixth Matter – 8,000 (Sydney metro)
Seventh Matter – 198,000 (Sydney metro)
Eighth Matter – 138,000 (Sydney metro)
Ninth Matter – 176,000 (Sydney metro)
Tenth Matter – 179,000 (Sydney metro)
Eleventh Matter – 196,000 (Sydney metro)
Fourteenth Matter – 129,000 (6.45 am)
129,000 (6.49 am) (Sydney and Brisbane metro)
Fifteenth Matter – 149,000 (Sydney and Brisbane metro)
Sixteenth Matter – 149,000 (Sydney and Brisbane metro)
Seventeenth Matter – 201,000 (Sydney and Brisbane metro)
Eighteenth Matter – 200,000 (Sydney and Brisbane metro)
Nineteenth Matter – 188,000 (Sydney and Brisbane metro)
Twentieth Matter – 167,000 (Sydney and Brisbane metro)
Twenty-First Matter – 205,000 (Sydney and Brisbane metro)
Twenty-Third Matter – 186,000 (Sydney and Brisbane metro)
Twenty-Fifth Matter – 213,000 (8.10 am)
206,000 (8.19 am) (Sydney and Brisbane metro)
Twenty-Sixth Matter – 194,000 (Sydney and Brisbane metro)
Twenty-Seventh Matter – 201,000 (7.14 am)
200,000 (7.21 am) (Sydney and Brisbane metro)
Twenty-Eighth Matter – 177,000 (Sydney and Brisbane metro)
Twenty-Ninth Matter – 180,000 (Sydney and Brisbane metro)
Thirtieth Matter – 159,000 (Sydney and Brisbane metro)
Thirty-First Matter – 200,000 (Sydney and Brisbane metro)
Thirty-Second Matter – 198,000 (7.19 am)
189,000 (7.40 am) (Sydney and Brisbane metro)
Thirty-Third Matter – 179,000 (Sydney and Brisbane metro)
Thirty-Fourth Matter – 158,000 (Sydney and Brisbane metro)

618
Exhibit 44.
212

[772] These figures considerably underestimate the extent of publication for the following
reasons correctly identified by the plaintiffs:619
(a) The figures exclude broadcasts by regional stations. The defendants accept that
each of the matters was broadcast beyond radio stations 2GB and 4BC to at least
44 regional radio stations. Mr Jones in evidence, for example, accepted the fact of
broadcasts on 77 stations around Australia.620 The defendants did not provide
(despite repeated requests) audience figures for regional stations. This was because
the defendants are not in possession of regional audience data and do not subscribe
to any such service;621
(b) The figures also exclude those who listened to the matters on-line either as a
livestream or who subsequently downloaded the audio from 2GB or 4BC’s website.
The defendants have failed (despite knowing of these proceedings) to retain these
figures. This failure was not explained;
(c) It may be inferred that the broadcasts would have been heard by many people who
did not deliberately tune in to either 2GB or 4BC, for example, by people hearing a
broadcast while travelling in a taxi; and
(d) The figures supplied by the defendants do not take into account the grapevine effect.

[773] Each plaintiff gave evidence that in the course of building the Wagner business he
established a wide circle of acquaintances. Denis Wagner, for example, estimated that he
had dealt with thousands of people in the course of the business.622 John Wagner
estimated that he interacted with tens of thousands of people, across a very wide range.623
Neill Wagner stated that he encountered thousands of people in the course of building the
business.624 Joe Wagner estimated that he dealt with hundreds, perhaps a thousand
acquaintances in the course of the business.625 These acquaintances included
suppliers, accountants, lawyers, government officials, clients, bankers, engineers, large
corporations and politicians.

[774] Quite apart from each plaintiff having an extensive circle of business acquaintances, each
was also involved in their community. I have already referred to Denis Wagner’s
involvement in junior hockey. John Wagner was well known in the community. He was
on the board of Downlands College for a number of years.626 Similarly, Neill Wagner
has been involved in the community in relation to sporting events and school activities.
The Wagner business is also well known in the community having sponsored the
Queensland Ballet, sporting clubs and donated to charitable organisations both publicly
and anonymously. Joe Wagner has also been heavily involved in the community, having
attended what he described as hundreds of social and community functions.627

619
Plaintiffs’ Submissions, [711]-[715].
620
T 14-18, line 9.
621
Exhibit 44, Tab 2(d), email dated 23 April 2018, 4.15 pm.
622
T 2-70, line 27.
623
T 1-30, line 42.
624
T 4-69, lines 1-2.
625
T 10-11, lines 3-31.
626
T 1-44, lines 10-11.
627
T 10-22, lines 29-30.
213

[775] It is unsurprising given each plaintiff’s extensive circle of both business and community
acquaintances that the grapevine effect of the defamatory broadcasts was considerable.

[776] Denis Wagner gave evidence that people would regularly say to him by reference to Alan
Jones, “What have you done to him?” People would also ask him questions such as
“What’s going on?” “What are you sort of hiding?” Mr Wagner stated that these
questions were commonplace.628 Denis Wagner was also asked questions by “a lot of
different circles by a lot of different people over a long period of time” about the things
that Mr Jones was broadcasting. These included references to the Wellcamp Airport.
People would ask Denis Wagner, “Have you got approval for it?”629 Denis Wagner gave
the following evidence:
“MR BLACKBURN: How many times do you think – and, obviously, you
won’t be able to put any kind of exact figure on this. How many times, do
you think, over the years have people said things to you or asked you
questions or said things to you about Alan Jones’ comments about the
Wagners?
DENIS WAGNER: I would say it would be in the tens of thousands. Tens of
thousands.”630

[777] When challenged that the reference to “tens of thousands” must be an exaggeration
(because this would be three people every day for 10 years), Denis Wagner maintained
that this figure was not an exaggeration.631 The defendants submit that this reflects on
Mr Wagner’s credit.632 I have previously observed that I found Denis Wagner to be a
truthful witness. In the exchange that occurred with Mr Blackburn SC, Mr Wagner was
asked to estimate the number of persons who had made comments to him about the
matters complained of. While I accept that the actual number of people who commented
to him about the matters complained of is an exaggeration, I otherwise accept the import
of Mr Wagner’s evidence that numerous people would regularly comment to him about
the broadcasts.

[778] Denis Wagner also recalls that it was not uncommon for people to say to him “Well,
you’ve caused the flood at Grantham. People are saying you’ve caused the flood at
Grantham.”633 People would make similar comments to him at school functions. He also
recalls attending a conference in Adelaide in March 2016, when a senior person from
Hitachi recounted many of the things Mr Jones had said in the course of his broadcasts
concerning Grantham and the Wellcamp Airport.634 Denis Wagner also recalled an
incident in a taxi in Sydney where the taxi driver, having been told Denis Wagner (who
was accompanied by John Wagner) was from Toowoomba (but otherwise not knowing
who he was), said to Denis Wagner that he had been listening to Alan Jones, and the taxi

628
T 3-15, lines 5-9.
629
T 3-15, lines 20-24.
630
T 3-18, lines 5-9.
631
T 3-37, lines 1-39.
632
Defendants’ Outline of Argument – Part 2, [422].
633
T 3-16, lines 17-19.
634
T 3-17, lines 1-38.
214

driver said with conviction statements suggesting that “those Wagner guys” had not done
the right thing.635

[779] Elizabeth Wagner is the wife of John Wagner. She gave the following evidence:
“It was not unusual, to go anywhere, to a friend’s house, a – you know – a
school function, a business function – wherever you seemed to go, people
would say to you, ‘How are you getting on with all this Alan Jones stuff?
Like, how are you getting on? Like – you know – what’s happening?’ And
you sort of – you were unsure whether you were immediately being judged
or – yeah; it was difficult. It was really difficult. It seemed to cross every
path that you took; people seemed to be asking.”636

[780] Neill Wagner was also asked about the broadcasts when he was interacting with people
both socially and in business. According to Neill Wagner this occurred “hundreds of
times” and involved “many hundreds” of people.637 He recalls people asking questions
such as, “Did you guys really cause that?” and one person asked whether he was going to
go to jail.638 Neill Wagner recalls that at school functions people would come up to him
and ask him, “Did you actually murder those people?”639 People would also say to him,
“You’ve obviously got the ear of the government.”640

[781] Joe Wagner had similar experiences. His recollection was that people would make
comments about the broadcasts to him almost on a daily basis and he felt it was endless.
He recalls people asking him, “What have you done to Jones?” “What happened at the
quarry? Whose fault’s that?” “Who’s responsible for Grantham?”641 In relation to the
airport, Joe Wagner would be questioned by people to the effect, “How did you get that
through council so quickly?”642 Such comments would also come up in the business
context. According to Joe Wagner, “Alan Jones was always mentioned” at the
commencement of meetings.643 In cross-examination it was suggested to Joe Wagner that
it could not be right that at hundreds and hundreds of business meetings he attended over
the years, the broadcasts would be mentioned. Mr Wagner’s response was emphatic:
“When Mr Jones’ name is mentioned to you at the start of most meetings, let me tell you,
I can remember it. It sits very clearly in my mind.”644 I accept this evidence. In my view,
Joe Wagner, and indeed all the plaintiffs, were witnesses of truth. To the extent that their
estimates of the number of people who commented about the defamatory broadcasts or
the number of occasions upon which those comments were made are exaggerated, this
may be readily explained by the profound effect both the defamatory broadcasts and
people commenting to the plaintiffs about those broadcasts had on them.

635
T 3-19, lines 16-43.
636
T 7-3, lines 20-26.
637
T 4-77, line 34 to T 4-78, line 36.
638
T 4-77, lines 4-17.
639
T 4-73, lines 29-33.
640
T 4-76, lines 20-47.
641
T 10-34, lines 6-11.
642
T 10-34, lines 17-18.
643
T 10-36, lines 13-16.
644
T 10-54, line 44 to T 10-55, line 2.
215

[782] Helen Wagner is the wife of Joe Wagner. She recalls people who did not even know
them say words to the effect, “So are you one of those Wagners that they have been
talking about on the radio?” Mrs Wagner stated that this occurred almost on a daily
basis.645 Mrs Wagner had to defend herself so often that there were times when she
pretended not to be one of the Wagners so that no-one would know who she was.646

[783] The plaintiffs submit that the grapevine effect of the defamatory broadcasts is continuing.
On 30 April 2018, which was the first day of the trial, the plaintiffs received a
communication about the broadcasts. The message was received via the Wagners’
website. The message reads as follows:
“You people killed those people in the Floods at Grantham, You pigs are
now suing Alan Jones 2GB to cover up and feel good, Only to get more cash.
‘wake up you piss poor person for a businessman oxygen starved pigs.
Campbell Newman got his Ass kicked out, watch your backs ‘WAGNERS-
SCRABS’. GO TO CHINA.”647

[784] By reference to this message the plaintiffs submit, correctly in my view, that “it is
practically impossible to track the scandal and to know what quarters the poison of the
broadcasts has in fact reached”.648

[785] Finally, in relation to the grapevine effect of the defamatory broadcasts, John Wagner
gave evidence of Wagners being involved in major overseas projects and the importance
of reputation in this context:
“So the way our industry works is, particularly for the major – major projects
they’re not a price-sensitive project. It’s about having the reputation and the
ability to be able to execute on what the project is, but over and above that,
we have to sign up, particularly with the US companies. Even as the ultimate
owner, you may have a Japanese contractor in the middle of the US company.
So Exxon down to Chiyoda down to us. We have to sign up with those
people, and they have to have absolute assurance in our integrity to a point
where they can satisfy themselves that we won’t be part of any corruption,
bribery, or underhandedness, and without that reputation, you don’t even get
a look in.”649

[786] No part of the plaintiffs’ case includes a claim for special damages. Both John and Denis
Wagner acknowledged in evidence that the Wagner business was going from strength to
strength.650 It remains the case, however, that in determining the damage done to each
plaintiff’s reputation, which includes business reputation, the Court should take into

645
T 5-55, lines 5-11.
646
T 5-55, lines 28-30.
647
Exhibit 5.
648
Plaintiffs’ Submissions, [832] citing Ley v Hamilton (1935) 153 LT 384 at 386.
649
T 1-31, lines 19-27.
650
T 1-65, lines 14-15 and T 3-39, lines 38-46.
216

account the grapevine effect arising from the publication of the defamatory material.651
As observed by John Dixon J in Wilson v Bauer Media Pty Ltd:652
“The award of damages must be sufficient to ensure that, the damage having
spread along the ‘grapevine’, and being apt to emerge ‘from its lurking place
at some future date’, a bystander will be convinced ‘of the baselessness of the
charge’.”653

(c) Seriousness of the imputations

[787] Attachment 35 to these Reasons is a list of the imputations conveyed by the relevant
matters complained of. In all, 80 imputations are conveyed. They include accusations
that:
(a) the plaintiffs were responsible for the deaths of 12 people at Grantham, including
two children;
(b) knowing of their culpability, the plaintiffs were knowingly involved in a massive
cover-up. This cover-up involved the plaintiffs conspiring with prominent
members of government, including the then Deputy Prime Minister of Australia,
the Bligh and Newman Governments, and Barnaby Joyce. The cover-up involved
selling the quarry in order to evade legal liability for causing the deaths of 12
people. It also involved telling lies as to whether the quarry wall was part of the
natural landscape or man-made. This cover-up also involved the plaintiffs bullying
and intimidating persons who sought to expose the truth;
(c) the plaintiffs were selfish and greedy in that they had illegally built the Wellcamp
Airport which involved the stealing of airspace above the Oakey Army Base, thus
harming the national defence interests;
(d) the reason the plaintiffs were able to construct the Wellcamp Airport was because
of their corrupt relationship with the Coalition in Queensland and Canberra; and
(e) the plaintiffs are selfish and sensitive grubs who falsely claimed to have suffered in
the Grantham floods.

[788] The 80 imputations conveyed are, in my view, extremely serious and of the gravest kind.

[789] The seriousness of the defamatory imputations conveyed calls for a substantial award of
damages to signal to the public the vindication of the plaintiffs’ reputations. Further, as
correctly submitted by the plaintiffs, there is an additional feature of vindication in the
present case.654 Mr Jones in the course of the trial continued to assert the truth of a
number of the imputations conveyed, including some which were no longer sought to be
justified. I deal with Mr Jones’ conduct in this respect below in relation to aggravated
damages.

651
Ley v Hamilton (1935) 153 LT 384 at 386 per Lord Atkin; Cassell & Co Ltd v Broome [1972] AC 1027 at
1071; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 416, [88].
652
[2017] VSC 521 at [59(f)].
653
Citing Crampton v Nugawela (1996) 41 NSWLR 176 at 194-5 per Mahoney ACJ.
654
Plaintiffs’ Submissions, [681].
217

(d) Hurt to feelings

[790] Each plaintiff gave evidence as to their hurt feelings. This evidence was not challenged.

[791] At different stages of giving evidence each of the plaintiffs became visibly upset and
broke down. Having observed each plaintiff give evidence, I find that the defamatory
broadcasts have caused each of them to suffer profound personal hurt.

[792] To understand the depth of each plaintiff’s hurt feelings, it is necessary to understand the
personal pride each feels in having built the Wagner business and in the reputation the
plaintiffs have earned in both business and community circles for honesty and integrity.
This pride was best expressed by Neill Wagner:
“MR BLACKBURN: Are you proud of the business that you and your
brothers started in 1989?
NEILL WAGNER: Very. … to start with nothing, basically, and then, … to
build a business that … had 1100 employees working for it … I often sit back
and say, ‘Well, … we paid 1100 people this week … and we’re putting two
and a-half meals’ – for each employee, you put two and a-half meals a day
onto the table. You say to yourself, ‘Well, … you’re doing your bit for society
here.’ … do your bit for the local community and the state and the country.
MR BLACKBURN: Does the company have some principles or guiding
values that you try to adhere to?
NEILL WAGNER: Yeah. Many years ago, … the business managers of the
business and the four directors went away to a place called Couran Cove for
the weekend to do a bit of a strategy session, and out of that weekend came
our guiding principles. And the guiding principles – you know, ITSFAIR.
So if you use the acronyms of ITSFAIR – deal with integrity, work together
to overcome challenges, to work in a safe environment, be family conscious.
MR BLACKBURN: Look after your employees?
NEILL WAGNER: Yeah. Look after your employees. Family conscious.
You know, they’ve got to have … the right work-life balance. Acknowledge
success and innovation. We’re … very much an innovative … company and
require excellence. So you get the letter out of those guys and come up with
the acronym ITSFAIR. So at Wagners, … if you look after those guiding
principles – if you don’t know how to make a decision and you go back …
on the back of every one’s business card, and you quite often turn the business
card over and say to yourself, … ‘Is that fair?’ And if you go through those
points, if it’s fair, you make the decision and you move on. And we’ve never
had – never, ever had any come back to us if we’ve use[d] those guiding
principles.”655

[793] In the course of giving evidence a number of defamatory broadcasts were played to each
plaintiff. The sample of defamatory broadcasts generally covered the sting of all the

655
T 4-69, line 26 to T 4-70, line 7; see also the evidence of Denis Wagner, T 2-73, line 25; and Joe Wagner,
T 10-21, line 35 to T 10-22, line 11.
218

imputations conveyed. These included accusations in relation to Grantham, the


Wellcamp Airport, bullying and intimidation and the plaintiffs being self-interested and
greedy.

[794] Denis Wagner’s evidence was that the accusations in relation to Grantham, including him
being responsible for the deaths of 12 people, made him feel “gutted”:
“MR BLACKBURN: And how would that make you feel?
DENIS WAGNER: Oh, terrible. Terrible. Gutted, actually. It just – it’s hard
– again, it’s hard to describe, but you can’t – you just get deflated. You just
– it’s really hard to cop.

MR BLACKBURN: It’s pretty well-known, Mr Wagner, how those people
died. They drowned in horrible circumstances. Did that affect you when you
heard Mr Jones talking like this?
DENIS WAGNER: It certainly – certainly did. You really just sort of wonder
for yourself, you know, where is this thing going? You know, unfortunately
when he speaks with such authority on radio people believe him and the
impacts of that are sort of far and wide – far and wide. … and then hearing
these allegations that the thing collapsed and all these people died as a result
of it, very difficult.”656

Denis Wagner, in addressing the accusations of a cover-up, gave evidence of his feeling
of helplessness.657 He also spoke of feeling humiliated:
“At times you get angry, but you – it is really sort of – and I’ve used this word
before – but gut-wrenching stuff and, you know, you do actually feel
humiliated, you know, when those sort of accusations are made.”658

[795] Denis Wagner stated that the accusations made by Mr Jones were totally against the
principles by which the Wagner business was conducted.659

[796] Despite trying to control himself, Denis Wagner became very emotional when he
described the stress he observed that these accusations placed on his parents:
“Dad was gutted. He’d ring up daily and say, ‘What are we going to do about
him?’ And how do you tell an 80-year-old man – we have the resources to
build an airport. We could send concrete plants to Russia and batch concrete
in minus 60 degree temperature. We could build bridges in Toowoomba and
install them in North America. But we seemed powerless to stop this
slander.”660

656
T 2-82, lines 1-20.
657
T 2-83, line 20.
658
T 2-83, lines 43-46.
659
T 2-84, lines 1-7.
660
T 2-84, lines 12-17.
219

[797] The defamatory broadcasts also had an impact on Denis Wagner’s family and created
tension. It also affected his ability to work and operate his business.661 Denis Wagner
was played the Thirtieth Matter complained of in which Mr Jones purports to summarise
Denis Wagner’s evidence before the Grantham Floods Inquiry. This was the broadcast
in which Mr Jones posed the question, “What kind of selfish, insensitive grubs are these
people?” Denis Wagner described his feelings in relation to this defamatory broadcast as
“just absolutely humiliating”.662

[798] Similarly in relation to the accusations concerning Wellcamp Airport, these made Denis
Wagner feel “quite gutted” and “terrible”.663 A number of persons, including those in
business circles such as bankers and bureaucrats both within local and state government,
as well politicians, would raise with Denis Wagner accusations made by Mr Jones in
relation to the airport. Denis Wagner stated, “And then I found myself in a position where
we had to try and sort of defend our reputation, defend our position … just not a nice
feeling. A terrible feeling.”664

[799] Denis Wagner experienced anxiety because he could not properly assess what impact the
defamatory broadcasts were having on the Wagner business.665

[800] He found the accusations of bullying and intimidation to be “gut-wrenching” and felt
“humiliated”.666

[801] John Wagner’s evidence was to similar effect. He was asked how he felt about the
accusations that he was involved in a cover-up in respect of Grantham with the Premier
and the Deputy Prime Minister: “Well, it goes right to the heart of integrity, honesty and
reputation and, you [k]now, it was a terrible place to be.”667 He described his business
reputation as taking “a pretty serious battering”. He saw the Wagner business potentially
going down the drain:
“JOHN WAGNER: I was extremely worried about it. You know, the banks
were continually asking, you know, … when’s this Jones thing going to stop.
It was getting to a point where people were actually sort of saying, well, do
we really want to fund these people? Do we really want to be known to be
part of the Wagner story? And it’s a great story, but, you know, people were
sort of starting to doubt whether they actually wanted to be part of – part of
what we were doing.
MR BLACKBURN: Did that affect you at that time?
JOHN WAGNER: Absolutely. Absolutely.
MR BLACKBURN: In what way?

661
T 2-84, lines 23-25 and T 3-4, lines 11-14.
662
T 3-13, lines 40-41.
663
T 2-79, line 25 to T 2-80, line 26.
664
T 3-15, lines 25-35.
665
T 3-16, lines 1-10.
666
T 2-83, lines 44-46.
667
T 1-43, lines 29-33.
220

JOHN WAGNER: … it was just a point that we just didn’t know where it was
going to end or how it was going to end. And it put a lot of stress on
everything.”668

[802] John Wagner at the time of these broadcasts was battling prostate cancer. 669 He felt
helpless, angry and unable to defend himself.670 He also observed the impact it had on
his family, which he found very stressful.671 The defamatory broadcasts also affected his
home life. This included people making comments about the broadcasts to his wife and
his daughters. He noticed that people became standoffish and were keeping their distance.
He also observed the broadcasts having an effect on his elderly parents.672

[803] Elizabeth Wagner is the wife of John Wagner. Prior to the broadcasts she described John
Wagner as always being easy-going, fun-loving and committed to working hard. After
the broadcasts she noticed that he became teary and appeared troubled. He was also short
with her and the children, which was unlike him. She described him as still being stressed,
sleeping erratically and being quite teary. She stated that he is “a very different man these
days”.673

[804] Neill Wagner was devastated and hurt by the Grantham allegations. He described himself
as feeling “gutted”.674

[805] Neill Wagner’s reaction to the playing of the defamatory broadcasts was that the matters
made him feel angry, helpless and powerless. As to the accusation that the Wagners knew
only two things, namely self-interest and bullying, Neill Wagner stated: “You can’t –
you just can’t – can’t hold your head high any more. You know, you go out – you go out
in the community and you see people – you know they’re talking about you.”675 He
believes that he will have to live with these accusations for the rest of his life: “As I say,
this is going to live with me for the rest of my life and I don’t know how you get over this
kind of stuff, you know.”676

[806] The defamatory broadcasts had an impact on Neill Wagner’s family. He became very
emotional when he recounted an incident with his wife of 23 years, where she doubted
him asking, “What have you blokes done here?”677 This was a reference to the Grantham
accusations. He also observed that the defamatory broadcasts had a definite effect on his
children.678

668
T 1-45, lines 5-21.
669
T 7-3, lines 37-38.
670
T 1-50, lines 37-44.
671
T 1-53, lines 42-45.
672
T 1-47, lines 8-13.
673
T 7-4, lines 3-7.
674
T 4-84, line 43.
675
T 4-83, lines 23-27.
676
T 4-86, lines 18-19.
677
T 4-78, line 40.
678
T 4-78, line 45.
221

[807] The defamatory broadcasts caused Neill Wagner to experience anxiety and to withdraw
socially.679

[808] Joe Wagner described his feelings in relation to the defamatory broadcasts as follows:
“Well, it’s, you know, sort of very upsetting, knowing that you’ve worked so
hard to build a reputation for yourself and the business and your family, and
then someone on a national radio talking to you about – or talking about you
like that is very hurtful, very hurtful. And then that leads into many other,
you know, issues such as, you know, what’s – how do you handle this? What
do you do?”680

[809] More specifically, in relation to the accusation that the plaintiffs were responsible for the
deaths of 12 Grantham residents, Joe Wagner responded: “Just gut wrenched. Just –
devastated. I suppose I – I – I felt hurt and – and probably more guilt that I was – that I
had put my wife and children …”681 Joe Wagner in giving this evidence became so
visibly upset that an adjournment was required.682

[810] Joe Wagner gave emotional evidence concerning verbal and physical abuse his daughter
was subjected to at school because of the broadcasts. His son was also taunted with
accusations that his parents were responsible for killing people in Grantham.683

[811] The defamatory broadcasts had other impacts on Joe Wagner, including sleepless
nights.684 He stated that he was devastated by the impact the broadcasts had on his
parents.685 It also impacted one of his close friendships when a friend told him that
Mr Jones was right and the Wagners were wrong.686 The broadcasts had such an impact
on Joe Wagner that he sought to escape to a remote property outside Tenterfield. Even
there, he was unable to avoid comment about the broadcasts – his neighbours asked him,
“Which one of you boys is responsible for the Grantham disaster?” – and as a
consequence he felt “totally trapped”.687 He stated that he became paranoid about what
people were thinking and saying about him.688

[812] Joe Wagner’s wife, Helen Wagner, gave evidence that the broadcasts caused her husband
to be deeply upset. He became withdrawn, restless at night and would go into a room by
himself to listen to the broadcasts. While Helen Wagner has always been proud to be a
Wagner, there were times, because of the broadcasts, that she used her maiden name.
When she informed her husband of this he became very upset.689

679
T 4-79, lines 32-43.
680
T 10-24, lines 15-22.
681
T 10-24, lines 39-42.
682
T 10-24, lines 39-45.
683
T 10-36, lines 28-39.
684
T10-37, line 20.
685
T10-39, lines 8-11.
686
T 10-35, lines 1-14.
687
T 10-34, line 47.
688
T 10-36, lines 21-26.
689
T 5-55, lines 35-39.
222

[813] Although none of the plaintiffs’ evidence as to hurt feelings was challenged, the
defendants nevertheless submit that the plaintiffs did not seek to mitigate their hurt
feelings by commencing the present proceedings until after the Grantham Floods Inquiry
had concluded.690 The defendants also challenge the plaintiffs’ evidence that they felt
powerless and helpless in the face of the defamatory broadcasts on the basis that the
plaintiffs were able and did, in fact, take various steps. These included the plaintiffs
engaging The Punch Group as general media advisers.691 The plaintiffs made a business
decision to “promote good news rather than bad news”.692 The plaintiffs also pursued
their legal rights in respect of other publications by The Spectator, Heather Brown,
Channel 9 and 60 Minutes. After settling the claim against The Spectator, the plaintiffs
released a media statement which disclosed the settlement, classifying it as both a win
and vindication.693

[814] Denis Wagner further explained why the plaintiffs did not commence proceedings against
the defendants earlier. The plaintiffs sought legal advice in around 2013.694 Acting on
that advice the plaintiffs made a submission to the Australian Communications and Media
Authority (ACMA) in respect of Mr Jones.

[815] Any delay in commencing proceedings against 2GB, 4BC and Mr Jones is explicable by
reference to the alternative steps taken by the plaintiffs, and does not, in my view, impact
upon my finding that the defamatory broadcasts have caused each plaintiff to suffer
profound personal hurt.

Aggravated damages

[816] I have identified in [737] to [738] above the matters relied on by the plaintiffs in respect
of aggravated damages. I analyse the evidence in relation to these matters below. From
this analysis I make the following findings:
(1) Mr Jones, for whose conduct 2GB and 4BC are vicariously liable,695
(a) engaged in unjustifiable conduct; and
(b) was motivated by a desire to injure the plaintiffs’ reputations;
which conduct and motivation increased the harm to the plaintiffs’ feelings and to
their reputations.

[817] Some of the matters which constitute unjustifiable conduct also support the finding that
Mr Jones was motivated by a desire to injure the plaintiffs’ reputation.

690
Defendants’ Outline of Argument – Part 2, [417]-[418].
691
T 1-59, lines 16-35.
692
T 1-60, lines 22-27; Defendants’ Outline of Argument – Part 2, [419].
693
Exhibit 6, Wagners’ Media Release, 22 November 2017.
694
T 3-32, line 29.
695
T 23-19 lines 5-31; Plaintiffs’ Submissions in Reply, [456].
223

(a) Unjustifiable conduct

(i) Circumstances of the Publications


 Mr Jones was wilfully blind to the truth or falsity of the defamatory imputations

[818] While Mr Jones is contracted to the owner of 2GB, he is largely given free reign in what
he says on radio and is not subject to editorial control.696 For the period 2013 to 2015,
Mr Jones had five staff who assisted him. Some were employed by him and some by
Macquarie Media. He and his staff controlled production. The staff employed by
Macquarie Media would provide technical assistance to enable the program to go to air,
subject to Mr Jones’ direction.697 None of the five staff utilised by Mr Jones were either
journalists or researchers.698 Mr Jones generally received information from listeners or
members of the community, either by email, letter or phone call. He stated in evidence:
“I have always argued that my listeners are my best researchers.” 699 Mr Jones also
monitored various media applications for both local and international content.700 He
would utilise staff to ring listeners or members of the community to obtain their story
which the staff member would type up for him.701 His staff would also compile dot point
summaries of various news reports.702

[819] In relation to issues concerning Grantham and the Wellcamp Airport, Mr Jones views
himself both as a supporter of the local community and as being the “voice of the
voiceless”.703

[820] Mr Jones’ primary sources of information in relation to the Grantham Flood event were
eyewitnesses and journalists, including Mr Cater and Amanda Gearing. I accept that
Mr Jones, in his role as a national broadcaster, sought to ventilate the concerns expressed
to him by the victims of the Grantham Flood event. Mr Jones was entitled, of course, to
ventilate these concerns and agitate for a fresh inquiry.704 Mr Jones, however, went much
further in his broadcasts than merely ventilating these concerns and calling for an inquiry.
He accused the plaintiffs of being responsible for the deaths of 12 Grantham residents
and seeking to cover up their culpability by bullying, intimidation and political influence.
That is, prior to the Grantham Floods Inquiry being established and Mr Sofronoff QC
publishing his findings, Mr Jones was repeatedly asserting on national radio that the
plaintiffs were responsible for the 12 deaths and implicitly, that any inquiry established
would find accordingly.

[821] Mr Jones admitted that he had no hydrological or scientific evidence of any kind when
he commenced broadcasting these grave accusations.705 He relied on his understanding
of what he had been told by eyewitnesses:

696
T 12-5, lines 35-47.
697
T 12-6, lines 10-25.
698
T 13-39, lines 1-17.
699
T 12-4, line 31.
700
T 12-13, line 45 to T 12-14, line 6.
701
T 12-11, lines 15-17.
702
T 12-17, lines 29-41.
703
T 14-59, line 16; Defendants’ Supplementary Outline, [3].
704
T 14-59, lines 23-46.
705
T 14-59, lines 19-21.
224

“MR BLACKBURN: … Mr Jones, that is an exact description, power


without responsibility, of your attacks on the plaintiffs, isn’t it?
MR JONES: No, my – my attacks were based on my understanding of the
grievous circumstances facing the victims.”706

Mr Jones’ understanding, without further research, investigation or hydrological


evidence, constituted a wholly inadequate basis for the broadcasting of grave accusations
concerning the plaintiffs. The role played by the quarry in the Grantham Flood event is
a complex hydrological issue which arises in the context of a wider severe flood event.
As properly conceded by Senior Counsel for the defendants, the evidence of the
eyewitnesses, without interpretation by experts, is insufficient for the purposes of
establishing any causal link between the collapse of the bund and the deaths of 12
people.707

[822] Mr Jones had a copy of the DHI hydrology report commissioned by The Australian when
he interviewed Mr Cater on air on 17 March 2015, which is the Eleventh Matter
complained of. Mr Jones had not read this report.708 He believed, however, that he was
entitled to rely on those who had written “authoritatively” about the report.709 Mr Jones
agreed that the DHI report did not support “all the way” his own understanding of
events.710

[823] Another example of Mr Jones being wilfully blind to the truth or falsity of his accusations
is the Thirtieth Matter complained of. I have already dealt with this matter in [707(f)]
above. This broadcast concerned Denis Wagner’s evidence at the Grantham Floods
Inquiry. In the course of this broadcast Mr Jones states, “What kind of selfish, insensitive
grubs are these people?” As I have already observed, by his statements in this broadcast
Mr Jones substantially altered the impression that a listener would have received had that
person been present at the Inquiry and heard Denis Wagner’s evidence. Not only is the
impression substantially altered, Mr Jones creates a false impression. If Mr Jones was in
possession of the transcript of Denis Wagner’s evidence, he could not fairly have made
those statements. If he was not in possession of the transcript, he should not have made
those statements.

[824] Mr Jones sought to obtain the transcript of the evidence given at the Grantham Floods
Inquiry.711 He was not able to say whether or not he had the transcript of Mr Wagner’s
evidence.712 Mr Jones did, however, state that through orthodox methods he was
obtaining transcripts each day of the Inquiry and tried to read those transcripts.713 He
agreed that he had no way of knowing the evidence given by Denis Wagner, for the

706
T 14-74, lines 42-45.
707
See [498] and [530] above.
708
T 12-82, lines 37-40.
709
T 12-82, lines 38-40.
710
T 12-82, lines 41-43.
711
T 12-15, lines 45-47.
712
T 12-16, lines 5-9.
713
T 12-27, lines 45-46.
225

purposes of commenting upon it, other than by being made aware of it.714 He believed
that he would have received the transcript prior to commenting upon it.715

[825] When cross-examined in relation to the Thirtieth Matter complained of, Mr Jones was not
certain whether he had received a copy of the transcript.716 Having had the transcript read
to him, Mr Jones described the sentiments expressed by Denis Wagner as “most
laudable”.717 When it was suggested to Mr Jones that he had entirely misrepresented
Mr Wagner’s evidence at the Grantham Floods Inquiry, his response was, in my view,
disingenuous:
“MR BLACKBURN: Now, Mr Jones, I just have a few questions for you
about that. First of all, this: the transcript that you’ve read that I read to you,
on any fair reading – this is an accurate summary of it, I suggest to you – the
commissioner asked Mr Wagner whether he’d suffered any damage and he
replied they’d suffered some loss of equipment but that was nothing
compared to the damage that’d been suffered by others. That’s the effect of
his answer, wasn’t it?
MR JONES: Pardon me. That was his answer, yes.
MR BLACKBURN: Yeah. And you have entirely misrepresented that
answer in your broadcast, haven’t you?
MR JONES: Not at all.
MR BLACKBURN: You called him a selfish, insensitive grub, didn’t you?
MR JONES: I did.
MR BLACKBURN: Yes, and a few moments ago, you said they were
laudable sentiments?
MR JONES: Well, what kind of words would apply to someone who built a
bund contrary to the licence of 1989 and denied it over and over again?”718

[826] Irrespective of whether Mr Jones was in possession of the transcript of Mr Wagner’s


evidence, the defamatory accusations he made based on that evidence demonstrate a
wilful blindness to the truth or falsity of what was broadcast.

[827] As to the accusations made by Mr Jones that the plaintiffs had lied about a man-made
wall at the quarry, there is no evidence to support this accusation. According to Mr Jones,
“[T]he Wagners have argued for years that the bund was a feature of the natural landscape
and was not man-made”.719 When it was suggested to Mr Jones that the Wagners had
never stated that the bund was a natural feature or that it was not man-made, Mr Jones’
response was, “That’s not my understanding”.720 In the absence of actual evidence,

714
T 12-69, lines 14-16.
715
T 12-69, lines 18-19.
716
T 12-72, lines 31-32.
717
T 12-72, lines 42-45.
718
T 12-74, lines 1-15.
719
T 12-41, lines 13-16.
720
T 12-42,line 10.
226

serious accusations should not be the subject of national broadcasts merely based on one’s
understanding.

[828] Mr Jones accepted that he was in possession of Denis Wagner’s statutory declarations
given to the Grantham Floods Inquiry prior to his broadcast of the Thirtieth Matter.721 In
paragraphs 18 and 19 of the statutory declaration722 Mr Wagner states:
“18. I have marked in orange a part of the western boundary of the sand pit
(the Western Embankment) that, to the best of my knowledge and belief,
was a natural feature of the site. To the best of my knowledge and belief, and
subject to what I say in paragraph 19 below:
(a) Wagners did not deposit overburden, fill or other material on the
Western Embankment that is marked in orange; and
(b) Wagners did not alter the height or profile of the Western Embankment
that is marked in orange.
19. I have marked in yellow the general location of a bund on the Western
Embankment which I believe was man-made (the Western Embankment
Bund). I am unsure whether or not the Western Embankment Bund was
constructed by Wagners or whether it already existed as at the date that
Wagners acquired the Grantham Sandplant. In my experience, a bund of this
nature generally exists to provide a safety barrier against people or vehicles
falling into a pit.”

[829] In spite of the express terms of paragraph 19, where Mr Wagner admits that the bund was
man-made, Mr Jones insisted in cross-examination that, when read with paragraph 18,
Mr Wagner was asserting that the bund was part of the natural landscape. The statutory
declaration speaks for itself. It is apparent that Mr Wagner was not asserting that the
bund was part of the natural landscape.723

[830] Mr Jones was also wilfully blind as to the truth or falsity of the Wellcamp Airport
accusations. Heather Brown was a principal source of information for Mr Jones in
relation to the airport.724 Mr Jones had known Ms Brown for approximately 15 years.
He described her as “a distinguished feature writer for [The Australian] newspaper”.725
They would communicate by text message approximately two to three times a week.726
They would also communicate by email. More than two years prior to any of the matters
complained of in relation to the airport, Mr Jones was in receipt of emails from Ms Brown
which were highly critical of the plaintiffs. In an email to Mr Jones from Ms Brown dated
5 June 2012,727 she writes:

721
T 12-16, line 35 to T 12-17, line 14; Plaintiffs’ Submissions in Reply, [512]; Exhibit 20, TB Vol 10, Tab 487
(Email from Amanda Gearing to Alan Jones, dated 29 July 2015).
722
Exhibit 20, TB Vol 12, Tab 583.
723
T 12-42, lines 32-46.
724
T 14-69, lines 1-2.
725
T 12-30, lines 1-7.
726
T 12-31, lines 1-2.
727
Exhibit 29.
227

“It’s the story of how one ambitious family and their hand-picked team of
henchmen took over an entire community – and along with it, Australians
[sic] richest food bowl – so they could wipe it out for their own greed.
It was carefully and cleverly done behind the backs of all the good, ordinary,
hard-working people of Toowoomba and the Darling Downs: the ratepayers,
the farmers, businessmen, community leaders. The so-called Mountain Mafia
used their money – and then they abused their trust.”

[831] In another email dated 31 May 2012, Ms Brown wrote to Mr Jones as follows: “We have
struck GOLD … Well, this week the Godfathers of the town paid her back.”728
Ms Brown, therefore, as early as mid-2012 was referring to the plaintiffs as “the Mountain
Mafia” and “the Godfathers” to Mr Jones. Mr Jones agreed that from the date of those
emails he knew that Ms Brown was very hostile towards the plaintiffs,729 yet she remained
a principal source of information.

[832] Prior to accusing the plaintiffs on national radio of corruption in constructing the airport,
Mr Jones was in receipt of an email from Ms Brown, dated 28 April 2013.730 In this email
Ms Brown refers to the fact she and Dr Pascoe had sought legal advice in relation to the
plaintiffs’ airport application. As was known to Mr Jones, Ms Brown and Dr Pascoe ran
a horse stud neighbouring the airport. The legal advice from Mr Mark Hinson SC
recorded in the email was that the airport application was legal. Mr Jones accepted that
he knew that Mr Hinson SC had dismissed any arguments of illegality.731

[833] Prior to airing the accusations that the plaintiffs, for their own selfish and greedy
purposes, stole airspace above the Oakey Army Base which would destroy the Oakey
Army Base and harm the national defence interest, Mr Jones had received a letter from
CASA, dated 16 May 2014. Mr Jones had written to Mr Terry Farquharson, the Deputy
Director of Aviation Safety at CASA. In this letter he raised with Mr Farquharson
concerns in relation to the Wellcamp Airport. Mr Jones referred to unnamed army sources
who told him that CASA was required to do an environmental study before any airport
could be approved. Mr Jones also raised with Mr Farquharson concerns that had been
expressed in relation to the Oakey Air Base and its future operations in light of the
development of the Wellcamp Airport.732

[834] In Mr Farquharson’s reply dated 16 May 2014,733 Mr Jones was informed and thereafter
knew the following matters:
(a) the proposed airport posed no threat to Oakey airspace and defence operations at
Oakey because:
(i) Defence had conducted a review which concluded that the Oakey Restricted
Areas could be rationalised to better reflect the airspace needed for the safe
conduct of military aircrew training;

728
Exhibit 30.
729
T 14-71, lines 1-3.
730
Exhibit 20, TB Vol 14, Tab 662.
731
T 14-67, lines 20-26.
732
Exhibit 20, TB Vol 16, Tab 713, page 3.
733
Exhibit 20, TB Vol 16, Tab 714.
228

(ii) the proposed changes to the Oakey Restricted Areas were due to take effect
on 29 May 2014 and would result in a negligible net impact on military flying;
(b) CASA had completed a Draft Preliminary Airspace Assessment of Wellcamp
which was released for public comment on 1 May 2014;
(c) precisely where a copy of the Draft Preliminary Assessment of Wellcamp could be
found on-line at the CASA website;
(d) CASA had undertaken a consultation process as part of its airspace assessment, a
public stakeholder forum in April 2013, and numerous meetings with stakeholders
in and around the Toowoomba area;
(e) potential aircraft noise and associated environmental impacts would be taken into
consideration by the aerodrome developer’s instrument procedures designer when
developing flightpaths, which was a requirement of the Civil Aviation Safety
Regulation;
(f) if it became evident that there may be any significant impact on the environment,
CASA would refer the matter to the Department of Environment under the
Environment Protection and Biodiversity Conservation Act 1999 (Cth), which
department would determine the appropriate environmental impact assessment
process.734

[835] Mr Jones admitted that he read the letter on or about 16 May 2014 and understood its
contents.735 Despite knowing and understanding these matters, in the broadcast of
26 May 2015 (the Eighteenth Matter complained of), which was more than a year after
receiving Mr Farquharson’s letter, Mr Jones referred to the plaintiffs destroying the
Oakey Army Base, which trains helicopter pilots, and harming national defence interests
for their own selfish, greedy purposes. Mr Jones made these accusations in circumstances
where he had taken no steps to investigate the content of Mr Farquharson’s letter. He did
not, for example, write to Defence requesting any information about the issues raised by
Mr Farquharson.736 He did not access the preliminary airspace assessment undertaken by
CASA. Mr Jones’ explanation for not doing so was that he is “not the aviation
ombudsman” and he only has “24 hours in a day”.737 Mr Jones’ wilful blindness to the
truth or falsity of these accusations is evident from the following exchange:
“MR BLACKBURN: And when you made the broadcast on 26th of May 2015
that I took you to a few moments ago, you didn’t say, did you, anything to the
effect, ‘I’ve been informed by the Civil Aviation Safety Authority that the
airspace changes that came into effect regarding Oakey in May last year will
have negligible net impact on military flying,’ did you? You didn’t say that
on the broadcast?
MR JONES: I did not say that.
MR BLACKBURN: And you didn’t even inquire, did you, of anyone
whether those changes were having negligible net impact on military flying,
did you?

734
Plaintiffs’ Submissions in Reply, [488].
735
T 13-28, lines 4-14; T13-31, lines 26-35.
736
T 13-36, lines 42-45.
737
T 13-30, line 36; T 13-31, lines 20-22.
229

MR JONES: I didn’t. No. Because, Mr Blackburn, Mr Farquharson isn’t the


government. There was no guarantee that Mr Farquharson’s views were
going to be embraced by the government.
MR BLACKBURN: Mr Jones, Mr Farquharson was the deputy direct[or] of
aviation safety at the Civil Aviation Safety Authority, wasn’t he?
MR JONES: There – there are no – he is.
MR BLACKBURN: Yes?
MR JONES: But there are no guarantees that his views would be embraced
by a government which had, in fact, expressed deep concern about the nature
of the training facility at Oakey.
HIS HONOUR: But Mr Jones, it was [you] who addressed your inquiries to
Mr Farquharson in your letter specifically addressed to him dated the 29th of
April 2014?
MR JONES: Correct. Correct, your Honour.”738

[836] The defendants submit that the caution with which Mr Jones dealt with Mr Farquharson’s
letter was justified.739 In a radio interview with Mr Jones conducted with the then Prime
Minister Mr Abbott on 5 March 2014 the following exchange occurred:
“ALAN JONES: … your Defence Department is surrendering 40 per cent of
the nation’s army base at Oakey to a private airport in Toowoomba, which
has met no environmental criteria, no noise assessment, no public input, no
community consultation. But every cent the airport makes, if it was ever to
make money, will go into the pocket of a private millionaire. Not a cent will
come back to taxpayers if the government is surrendering 40 per cent of an
army training base to this private millionaire …
MR ABBOTT: That’s a very fair question Alan. Now, when Stephen Smith
was the Minister, a letter was written where Defence said it was completely
unacceptable for the airspace around Oakey to have to be adjusted – this is
the Oakey helicopter … training centre. And we do a lot of work at Oakey,
including a lot of work with our Singaporean friends and allies. … And
Defence, under Stephen Smith, said that they needed the airspace for the
operational purposes of the base. Now, there’ve been some indications that
Defence might of changed it’s [sic] mind, and I am looking at that. I find it
hard to believe that it could be unacceptable on day one for this airspace to
be required by a private airport, and acceptable at some later date for it to be
required. And I’m trying to get to the bottom of if and why Defence has
changed its mind.”740

[837] Prior to this broadcast Mr Abbott, as opposition leader, had informed Mr Jones in writing
that the Oakey airspace was “sancrosanct”.741 These communications with Mr Abbott
pre-date Mr Farquharson’s letter. Mr Jones, however, by reference to these previous

738
T 13-37, lines 1-23.
739
Defendants’ Supplementary Outline, [6].
740
Exhibit 20, TB Vol 4, Tab 170.
741
T 12-37, lines 33-43; Exhibit 20, TB Vol 14, Tab 670.
230

communications with Mr Abbott, suggested in evidence that “there are a whole heap of
qualifications” in Mr Farquharson’s letter which were yet to be resolved.742 It was in this
context that Mr Jones stated that it was not his job “to be running around writing to
Defence and whatever. I’m not the industry ombudsman.”743 The difficulty with the
defendants’ submission is that Mr Jones’ subsequent broadcasts after the receipt of
Mr Farquharson’s letter included assertions that the plaintiffs stole, or illegally obtained,
airspace above the Oakey Army Base and that this would destroy the Base. These serious
accusations were made on national radio without Mr Jones or any member of his staff
investigating whether any of the perceived “qualifications” to Mr Farquharson’s letter
had been resolved.

[838] At no stage in the course of broadcasting the matters complained of in relation to


Wellcamp Airport did Mr Jones once make any reference to, or inform his listeners of,
the existence of Mr Farquharson’s letter or the fact that Mr Jones knew that the airport
development was legal.744

[839] Mr Jones accepted that a failure to take reasonable steps to ensure the accuracy of what
he was broadcasting would constitute a dereliction of duty on his part.745
 Vicious and spiteful language

[840] Mr Jones agreed that some of the criticism he levelled against the plaintiffs was very
savage, particularly in relation to Grantham.746 I accept the plaintiffs’ submission747 that
the tone of the matters and their content are self-evidently vicious and spiteful. In light
of Mr Jones’ wilful blindness to the truth or falsity of the imputations conveyed, his
conduct in using such language was unjustifiable. Mr Jones variously described the
plaintiffs as “selfish, insensitive grubs”; “stealing airspace”; as knowing only two things,
“bullying and self-interest”; “hypocrites of the year”; and as being of “Wagner infamy”.
 The plaintiffs’ knowledge of the falsity of the allegations

[841] Each plaintiff gave evidence of their knowledge that the accusations made by Mr Jones
in the matters complained of were false. The plaintiffs knew that they had not broken the
law or done anything illegal in relation to the development of the Wellcamp Airport, nor
had they stolen Oakey airspace. They also knew that the accusation that they had caused
the deaths of 12 people at Grantham was false. Denis Wagner at all times held the belief
that if anything the quarry had an ameliorating effect on the Grantham Flood event. 748
The plaintiffs also knew that the accusations of them being corrupt, or engaging in
bullying, were also false. I accept that each of the plaintiffs hurt was aggravated by their
knowledge of the falsity of the accusations made in the broadcast.749

742
T 13-34, lines 10-13.
743
T 13-34, lines 12-14.
744
T 13-37, lines 27-34.
745
T 12-52, lines 25-30.
746
T 12-40, lines 30-46 and T 12-42, line 3.
747
Plaintiffs’ Submissions, [845].
748
T 3-59, lines 14-18.
749
Plaintiffs’ Submissions, [834].
231

 Failure to make any inquiry of the plaintiffs, to ascertain responses or to inform the
plaintiffs

[842] On 24 September 2013, one of Mr Jones’ staff invited Ian Macfarlane, John Wagner and
Mayor Paul Antonio onto the Jones Program. This was the only occasion on which
Mr Jones had invited any of the plaintiffs onto his program.750 According to Mr Jones,
the response to this request was that none of the plaintiffs wished to speak to him and
they made it quite clear that they would not speak to him. Mr Jones therefore considered
he had no recourse because the plaintiffs would not come on his program.751

[843] This one invitation, which was made more than 12 months prior to the first matter
complained of, and the response received by Mr Jones, did not, in my view, permit him
to make such serious accusations without first informing the plaintiffs and seeking a
response. Asking the plaintiffs onto the program is one thing; informing them of the
accusations and requesting a response is another.

[844] Mr Jones asserted that if the practice of informing a person of an accusation prior to
publication was followed, one would never get a program to air.752 At no stage were the
plaintiffs informed of any of the accusations to be made against them in the broadcasts.753

[845] In circumstances where Mr Jones aired on national radio very serious accusations
concerning the plaintiffs over a period of 10 months, it was unjustifiable conduct not to
make any inquiry of the plaintiffs or to seek a response from them or to inform them of
the nature of the allegations.

(ii) Conduct of the proceedings


 Failure to apologise

[846] The defendants have refused to retract any of the defamatory imputations or to apologise.
Mr Jones refuses to apologise because he holds to his views.754 This includes his view
that the plaintiffs are responsible or culpable for the deaths of 12 people at Grantham.755
 Persisting with justification defences

[847] The plaintiffs submit that the defendants, by pleading and persisting with a variety of
justification defences, have acted in an unjustifiable manner, which has increased the
harm suffered by each plaintiff. The plaintiffs further submit that none of these defences
should have been pleaded, let alone maintained:
“It must have been obvious to the defendants at all times that none of their
defences in this proceeding was of any merit whatsoever.

750
T 13-8, lines 1-5.
751
T 12-53, lines 5-14.
752
T 14-58, lines 23-24.
753
T 12-55, lines 1-28, T 12-55, lines 33-35 and T 12-56, lines 1-5.
754
T 14-72, line 42 to T 14-73, line 5.
755
T 14-60, lines 5-13.
232

No responsible analysis could have resulted in advice to the effect that any of
the broadcasts were substantially true. It was incomprehensible that the
defences of truth and contextual truth were persisted with.”756

[848] In Bauer Media Pty Ltd v Wilson (No 2),757 the Victorian Court of Appeal determined
that the learned trial judge had erred in making a number of findings as to circumstances
of aggravation and, in particular, the finding that “no responsible analysis could have
informed advice that any of the articles was substantially true”. The Court of Appeal
identified as the relevant issue whether there was any impropriety in counsel at trial
putting forward the defences and arguments that they did.758 The Court observed:
“While Bauer’s arguments about justification at trial may have been weak and
unpersuasive, they were not, of themselves, improper or unjustifiable. As we
have said, care needs to be taken to separate the impropriety of a litigant in
knowingly running a false defence and the conduct of a litigant’s lawyers in
pursuing arguments based upon evidence that was open to be accepted by the
trier of fact … There is nothing in the material before us that suggests that
Bauer’s solicitors or counsel were aware of Bauer’s improper purpose in the
publication of the articles. … Moreover, additional care needs to be taken in
this area to ensure that findings of impropriety are not based upon hindsight
analyses. Whether a particular step in a proceeding was improper or
unjustifiable or lacking in bona fides falls to be determined at the time the
step is taken, rather than by reference to whether the jury did or did not
‘comprehensively reject’ the losing party’s case.”759

[849] In the present case, the defendants did not persist with substantial truth defences in
relation to a number of imputations. To the extent that the defences were persisted with
in respect of the Category 2 to 5 imputations, they were of limited scope. In relation to
the Category 1 imputations, the defendants called and relied upon expert evidence as well
as the evidence of eyewitnesses. As is apparent from my analysis at [442] to [600] above,
the defendants failed to justify the Category 1 imputations because of a stark failure to
establish any causal link between the collapse of the bund and the deaths of 12 people.

[850] In considering the substantial truth defences in respect of the other four categories of
imputations, the defences may properly be viewed as weak and unmeritorious. They
were, however, the subject of evidence from a number of witnesses including town
planning experts, Ms Brown, Dr Pascoe and Mr Pinkerton, as well as reply evidence from
John, Denis and Neill Wagner.

[851] Although I have found that the defences of substantial truth and contextual truth fail, I do
not accept that the pleading and running of these defences constitutes unjustifiable
conduct.

756
Plaintiffs’ Submissions, [854]-[855].
757
[2018] VSCA 154.
758
[2018] VCSA 154 at [97].
759
[2018] VCSA 154 at [103] and [105].
233

[852] What does, however, constitute unjustifiable conduct is Mr Jones in evidence repeating
many of the defamatory accusations in circumstances where this Court had not yet made
any findings in relation to the justification defences or the contextual truth defences.
 Mr Jones repeating defamatory accusations

[853] Mr Jones’ conduct in repeating a number of defamatory assertions in the course of his
evidence was unjustifiable. The repeating of these defamatory assertions was gratuitous
and, as correctly submitted by the plaintiffs, often in answers that bore no connection with
the questions that Mr Jones was asked.760 The plaintiffs, in their written submissions,
have identified the defamatory assertions repeated by Mr Jones:761
(a) the plaintiffs were “not remotely concerned” about the deaths of 12 people at
Grantham and “that’s the Wagner attitude … they want things done their way”;762
(b) the plaintiffs built the bund, the bund collapsed, and 12 people died;763
(c) the plaintiffs were responsible or culpable for the deaths of 12 people at
Grantham;764
(d) The deaths in Grantham were a result of “municipal murder”;765
(e) the plaintiffs lied about the natural landscape of the quarry and lied about the cause
of the flood;766
(f) the plaintiffs “still haven’t been found out” for their responsibility for deaths of 12
people during the Grantham flood;767
(g) the Wagners had engaged in a high-level cover-up to hide their responsibility for
the deaths in Grantham;768
(h) it was true (despite the defendants dropping the truth defence in respect of the
allegation the week before the trial commenced) that the plaintiffs had conspired
with the Deputy Prime Minister and Barnaby Joyce to frustrate the flood inquiry
and cover up their culpability;769
(i) the plaintiffs stole airspace from Defence;770 and
(j) the plaintiffs were going to destroy the Oakey Defence Base for their own selfish,
greedy purposes, which Mr Jones described as “the Wagner way”, asserting that
“these people do deals.771

[854] There are three further factors which support the finding that the repeating of these
defamatory assertions by Mr Jones, particularly in relation to Grantham, constitutes
unjustifiable conduct. First, the defamatory assertions were repeated by Mr Jones prior

760
Plaintiffs’ Submissions, [856].
761
Plaintiffs’ Submissions, [856].
762
T12-55, lines 44-47.
763
T 12-99, lines 4-14; T 14-59, line 43 to T 14-60, line 3.
764
T 14-60, lines 5-13.
765
T 12-67, line 25-26.
766
T 12-56, lines 25-28.
767
T 12-98, line 46 to T 12-99, lines 1-2.
768
T 12-58, lines 1-3; T 14-62, lines 4-10.
769
T 12-98, lines 15-19; T 12-99, lines 41-47.
770
T 12-105, lines 33-35; T 14-13, lines 20-21.
771
T 13-20, lines 21-26.
234

to this Court making any findings as to whether the Category 1 and 2 imputations were
substantially true. Second, Mr Jones continues to maintain his allegations in relation to
Grantham against the plaintiffs notwithstanding that he:
(a) publicly praised Mr Sofronoff QC during the Grantham Floods Inquiry;772 and
(b) praised Mr Sofronoff QC at the conclusion of the Grantham Floods Inquiry.773

Third, in spite of agitating for a fresh inquiry and notwithstanding his praise of
Mr Sofronoff QC, Mr Jones has refused to accept the findings of the Grantham Floods
Inquiry. His explanation as to why he has not accepted those findings does not withstand
any sensible analysis. Mr Jones’ evidence was as follows:
“At the end Mr Sofronoff accepted the conclusions of the hydrology report.
Mr Blackburn, the hydrologists were accepted at the end of the report. The
eyewitnesses weren’t. And the hydrology report in the Sofronoff inquiry was
cross-examined by Holt and Co QC. And I think they said – I think Holt’s
evidence was something – it stretches credibility or it tests one’s sanity to
believe the bund didn’t cause it. But the hydrology reports were then
presented at the end because Mr Blackburn, though you may not know it, they
were being prepared concurrently with the inquiry. And people at the –
people at Grantham thought the proper procedure should have been to have
all the evidence assembled beforehand. The hydrologist report should have
been compiled before the inquiry began so that every person had an
opportunity to cross-examine the details of the report. They were being
prepared concurrently with the Sofronoff inquiry. They only became
available when the Sofronoff Inquiry was at its end, and Mr Sofronoff
accepted those. But the witnesses to the collapse of the bund weren’t given
an opportunity to cross-examine or test what the hydrology report had
found.”774

[855] Mr Jones further stated:


“The witnesses weren’t given a chance to cross-examine the hydrology. So
my concern was that the hydrology reports were not correct, not accurate.
And, therefore, while I accepted what Mr Sofronoff has said, I didn’t accept
the conclusions.”775

[856] This was the first time that Mr Jones has publicly stated that he did not accept the
conclusions of the Grantham Floods Inquiry.776 Mr Jones’ explanation for not accepting
those conclusions ignores the fact that the eyewitnesses to whom he refers were
represented at the Inquiry by Mr Holt QC.777 As I comprehend Mr Jones’ evidence, his
assertion is that he is unable to accept Mr Sofronoff QC’s conclusions because certain
eyewitnesses, who were represented by Queen’s Counsel, were unable to personally
cross-examine the hydrology experts. This assertion is nonsensical.

772
Exhibit 20, TB Vol 1, Tab 24 (the Twenty-Fifth Matter).
773
Exhibit 20, TB Vol 3, Tab 153 (broadcast of 9 October 2015); Plaintiffs’ Submissions, [857].
774
T 12-92, line 34 to T 12-93, line 2.
775
T 14-73, lines 14-17.
776
T 14-73, lines 19-23.
777
T 14-73, lines 25-26.
235

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

[857] The finding that Mr Jones was motivated to injure the plaintiffs’ reputation is supported
by a number of considerations. These include a number of matters which constitute
unjustifiable conduct, such as the intrinsically vicious and spiteful wording used in the
matters complained of, Mr Jones’ wilful blindness to the truth or falsity of the defamatory
accusations, and his failure to inform the plaintiffs of his intention to publish the matters
complained of or to allow the plaintiffs any opportunity to respond to the allegation.

[858] When considered in the context of previous broadcasts, the publication of the matters
complained of between 28 October 2014 and 20 August 2015 constitute part of a
campaign of vilification against each of the plaintiffs. I have already discussed in
paragraphs [746] to [754] above how prior broadcasts may be relied on by the plaintiffs
for the purposes of establishing Mr Jones’ motivation to injure the reputations of the
plaintiffs.

[859] In a broadcast dated 13 December 2013,778 Mr Jones made the following statements:
“The quarry wall collapsed, full stop. A quarry wall that shouldn’t have been
there. A quarry wall at Grantham, down the range from Toowoomba, that
wasn’t on the planning map. A quarry wall that Wagners owned and had no
permission to build. And 12 people died as the quarry wall broke.
Wagners had been building this stuff up, building it up, building it up,
building it up, building it up. The water overflowed, into the dam, into the
quarry, and then whack, the wall broke and came down like an explosion. A
quarry wall that Wagners had no permission to build. …
Well the people are speaking. Without the Wagner quarry, many of these
people wouldn’t have died. … Wagners quarry. The same bloke who’s
bullied and run over the top of people to build an airport. With no authority
from the public at all. I’m Wagner I can do it. … But nothing happens
because the Wagners are untouchable. Well that’s until now. And the
Wagners should be called before a reopened inquiry until we f[ind] out what
really did cause the deaths at Grantham. … The Grantham story isn’t even
partly told. But it’s a story of dishonesty and treachery and it’s going to be
exposed. … Why should the Grantham flood victims be treated any
differently? Lies at levels of government, this letter writer sent to me.
Municipal murder.”

[860] When cross-examined in relation to this broadcast, Mr Jones did not resile from the
description ‘municipal murder’. He stated, “I don’t know how else we describe the death
of 12 people”. In evidence, Mr Jones repeated his assertion that without the quarry, 12
people would not have died. He referred to this as “a self-evident fact”.779 The vicious
language of this broadcast and the reference to ‘municipal murder’, together with
Mr Jones’ refusal in evidence to resile from these statements, constitutes compelling
evidence that Mr Jones was motivated by a desire to injure the plaintiffs’ reputations.

778
The transcript of this broadcast is Exhibit 25.
779
T 12-68, lines 1-7.
236

[861] Another example of this is two previous broadcasts of 29 May 2014 780 and 20 June
2014.781 In these broadcasts Mr Jones taunts the plaintiffs in relation to obtaining
contracts for airlines to fly into the Wellcamp Airport. In the 29 May 2014 broadcast,
Mr Jones states: “Perhaps Mr Wagner can tell us which airlines have signed up to this
so-called Toowoomba airport. Have Virgin and Qantas signed up?” Mr Jones accepted
in cross-examination that he was taunting the plaintiffs by suggesting that no airlines
would fly into their airport. He believed that no airline would, in fact, fly into Wellcamp
Airport.782 He had stated this to his listeners on a number of occasions.

[862] In the broadcast of 20 June 2014, Mr Jones made a satirical reference to the Beverly
Hillbillies and the Clampetts in speaking of the plaintiffs and Wellcamp Airport:
“And I was thinking last night, this Wagner Airport in Toowoomba, I wonder
when Mr Wagner is going to tell us which airlines are flying into his airport,
or Mr Wagner, have you misled the Toowoomba people about that as well?
Because, as a Toowoomba listener wrote to me to say, I have a vision of big
Johnny, as in Johnny Wagner, with a feather up his backside running up and
down his empty runway calling out vroom, vroom, vroom, and pretending it’s
a plane because there are none.

Maybe, Johnny, we could call it Clampett airlines. After all, you promised
the public it would be a major airport with major national airlines, like Qantas
and Virgin … then we have cousin John and cousin Denis Wagner. They can
be the travel agents for Clampett Air. … Clampett Air, here today, and gone
tomorrow. You will get it all in Queensland, I’ve got to tell you. You get it
all in Queensland. Johnny Clampett, eh? Tell us, Johnny, when are the
airlines going to hit the track in Toowoomba?”

[863] In evidence Mr Jones accepted that when he made this broadcast on 20 June 2014 he
believed that no passenger airline would be persuaded to fly into Wellcamp Airport.783

[864] Following these broadcasts, Mr Jones learned that Qantas had agreed to fly into
Wellcamp Airport. This came as a surprise to him.784 There followed an exchange of
emails between the Chief Executive Officer of Qantas, Alan Joyce, and Mr Jones. In an
email sent by Mr Jones on 3 September 2014 to Mr Joyce, he stated:
“Are you seriously telling me you’re flying planes into Wellcamp. After all
the discussions we’ve had?
Here we are at a point of significant national security need and in what I
regard as one of the most corrupt infrastructure deals ever done, Wagner has
been given 40 per cent of the Oakey air space. This was a base given to the
Government in war time to train helicopter pilots. That need now is more
urgent than ever. Julia Gillard refused the request for air space to go to

780
Exhibit 20, TB Vol 4, Tab 192.
781
Exhibit 20, TB Vol 4, Tab 204.
782
T 13-40, lines 14-21.
783
T 13-50, lines 15-20.
784
T 13-56, line 38.
237

Wagner out of the Army base. Defence Minister Stephen Smith refused the
request. The Defence Department and others presented 140 pages of
submission as to why this shouldn’t happen. Gillard was sacked, Rudd came
in. Rudd thought he was going to lose Griffith. He wanted heavy aircraft to
be removed from the flying space over his electorate. Rudd is a mate of
Macfarlane, the local Federal Member.
Tony Abbott told me on air many times that a private millionaire would never
be given public and national air space. But before Tony Abbott was sworn in
a deal was done.
I could go on. I told you all of this. You assured me that you understood.
And now I’m told today you’re going back on your word and you are
endorsing this behaviour. I have to tell you I’m not the only one who is
beyond disgusted.”785

Mr Joyce replied on the same day:


“When we spoke about Wellcamp several months ago, I indicated to you that
QANTAS had not made a decision on the airport and that I would look into
the matter.
Since that time, we have held many long discussions with the operators of the
airport. Their offer to QANTAS is commercially very attractive, and one that
our competitor would have also taken if provided the opportunity.
Since we last spoke, I have also been contacted by numerous Federal Cabinet
Ministers on this issue who are very supportive of Wellcamp and believe it
will provide economic growth and job opportunities in the future for this
region. We have also discussed the airport and its operations at length with
the Department of Infrastructure and Regional Development, who are also
supportive of this development.
My team have also met with local business people and community leaders
who are also supportive of Wellcamp.”786

[865] Mr Jones replied to this email on the same day in the following terms:
“Alan, I fear we’re on a collision course. Of course these people will bribe
you to go there. You call it ‘commercially very attractive’.
Are you aware that there is no environmental impact statement for this airport,
no community consultation, no compensation to people living under the flight
path or going to schools or to farmers next door or to a thoroughbred breeder
across the road. No compensation. … Did it ever enter your head why all
these people were lobbying you or why they were bribing you? Alan, I’ll
have to reserve my decision here but I may well go public. This is a massive
story. Qantas have entered where, on principles of ethics and common
decency, let alone national security vis-a-vis Oakey airport, they should never
be.

785
Exhibit 20, TB Vol 20, Tab 1079.
786
Exhibit 20, TB Vol 20, Tab 1080.
238

My final words to you are these. This is a monumental blunder.”787

[866] Mr Jones in evidence sought to justify his reference to the plaintiffs “bribing” Mr Joyce
by suggesting that the plaintiffs’ offer to Qantas was not “an orthodox commercial
deal”.788 There is no evidentiary basis for this suggestion. Mr Jones assumed that some
inducement had been given to Qantas to fly into Wellcamp Airport.789 Again, there is no
evidentiary basis for this assumption. I accept the plaintiffs’ submission that the correct
inference to be drawn is that Mr Jones engaged in this email exchange (and whatever
other discussions he had with Mr Joyce referred to in the email exchange) motivated by
a desire to injure the plaintiffs and their business by ensuring that Qantas did not fly into
Wellcamp Airport.790 Mr Jones accepted that he had previous discussions with Mr Joyce
prior to sending his first email on 3 September 2014. In those discussions he had raised
similar matters with Mr Joyce as contained in his email.791 The email refers to there being
no environmental impact statement for the airport and no community consultation.
Mr Jones denied that in his discussions with Mr Joyce he was trying to persuade or
convince Mr Joyce not to fly into Wellcamp Airport.792 I do not accept this denial. The
email communication speaks for itself. Mr Jones, by informing Mr Joyce that he was
reserving his decision whether to “go public” and by describing Mr Joyce’s decision as
“a monumental blunder”, supports the proposition that in his previous discussions with
Mr Joyce, Mr Jones was seeking to ensure that Qantas would not fly into Wellcamp
Airport. The rejection of Mr Jones’ evidence in this respect is further supported by the
fact that Mr Jones also communicated with Mr John Borghetti, the Chief Executive
Officer of Virgin. Mr Jones’ evidence was that in his discussions with Mr Borghetti he
raised issues concerning the plaintiffs “stealing” 40 per cent of the Oakey airspace and
the national security implications.793 He discussed with Mr Borghett