Jones Vs Wagner: damages to be set at what value?
Alan Jones drops key defence in defamation battle with Wagners
Some of the allegedly defamatory imputations made by broadcaster Alan Jones against Toowoomba’s Wagner brothers will not be defended after a defence of honest opinion was dropped, a court has heard.
But Rob Anderson QC, for Jones, said the defence of truth would continue to be used in relation to many of the 32 broadcasts that are subject to the defamation action.
On the final day of oral submissions of the seven week trial in the Supreme Court in Brisbane, Justice Peter Flanagan also questioned whether the evidence of Jones and journalist Nick Cater — who is being sued over one of the broadcasts — could even be used to prove the truth defence.
The brothers alleged they were defamed by imputations that a “bund” — a wall of dirt — at a quarry they had owned caused 12 deaths at Grantham during the 2011 floods, that they had built an airport without proper approval and that they had engaged in cover-ups. The brothers have sought $4.8m in damages.
The court heard that Mr Anderson had argued in written submissions that expert hydrological evidence showed there was a “surge” of water that he alleges caused the collapse of the bund. That evidence is disputed by the Wagners.
But Justice Flanagan said neither Jones nor Cater relied on that evidence while in the witness stand, and both repeated allegedly defamatory statements in court, based on photographs, videos and witness accounts.
He asked whether that was “sufficient to establish — in a complex area of hydrology — a causal link between the collapse of the bund at the quarry and the resulting deaths of 12 people”.
Leaving the Supreme Court in Brisbane today are (from left) Denis Wagner, his sister Kate Greer and their parents Mary and Henry Wagner. Photo: AAP
“They weren’t relying, as you rely for the defence, on expert evidence,” Justice Flanagan said. “They were reliant upon what they believed at the time of publications.
“So I have to ask you this, 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 the collapse of the bund and the deaths of the 12 persons? Therefore, your case can only be established in terms of substantial truth by reference to your expert evidence?”
Mr Anderson replied: “Yes.”
Justice Flanagan said the statements both made in court — including their rejection of the findings of 2015 inquiry into the floods that the quarry played no role — may be assessed while calculating any damages, if he finds in favour of the Wagners.
Mr Anderson also said this morning’s judgment regarding Rebel Wilson and Bauer Media — in which the Victorian Court of Appeal slashed the defamation payout to the actor from $4.5m to $600,000 — should be considered, if the court rules in the Wagners’ favour.
He described the $4.8m being sought in this case as “excessive”.
Mr Anderson said Wilson sued over publications that reached more than 1.5 million people, her trial heard the imputations reached audiences outside of Australia and she was much more well-known than the Wagners.
But he said some damages must be awarded, after the honest opinion defence was dropped.
“We accept there must be awarded damages because, as Your Honour has seen … there are some meanings that are not able to be defended,” Mr Anderson told the court.
But Tom Blackburn SC, for John, Denis, Neill and Joe Wagner, said Wilson was defamed by imputations that she was a “liar”.
“Being called a liar is just one of the many things that my clients were called,” Mr Blackburn said. “They were called murderers. We say Ms Wilson was not accused of murder, she was not accused of causing the deaths of 12 innocent battlers at Grantham, she was not accused of callously lying and selfishly lying to deny any liability for those deaths. She was not accused of using intimidation and thuggery to suppress any inquiry into those deaths, of being selfish and insensitive grubs, of building an airport running roughshod over the community by corruption and breaking all the rules. She was not accused of bribery.
“But the plaintiffs were accused of these things over and over again, your honour.”
He said Jones’ “devoted followers” must understand that his allegations against the Wagners were “baseless”, and that any damages award should be enough to persuade them that Jones was wrong.
Justice Flanagan said his judgment of the case would likely be handed down in September.