Australia: High watermark – Supreme Court of Queensland orders $3.7M in damages for defamation

Last Updated: 20 September 2018
Article by Tim Case and Alan Wrigley

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

Last week, the Supreme Court of Queensland ordered influential radio broadcaster Alan Jones and the licensees of the 2GB and 4BC radio stations to pay over $3.7M in damages to the Toowoomba based Wagner brothers in one of the largest defamation claims brought before a Queensland court.

Denis, John, Neill and Joe Wagner claimed that Mr Jones defamed them in a series of broadcasts on his popular talkback radio shows between October 2014 and August 2015. The Wagners pointed to 32 separate broadcasts where Mr Jones discussed the devastating flooding which occurred in the Lockyer Valley in 2011 and, in particular, the death of 12 people in the small town of Grantham, 100km west of Brisbane.

The Honourable Justice Flanagan found that during these broadcasts, Mr Jones made statements to the effect that:

  • a levee constructed adjacent to a quarry operated and managed by a Wagners entity had collapsed during the 2011 floods leading to a significant surge in downstream floodwaters and, consequently, they were directly responsible for the loss of life at Grantham;
  • the Wagners attempted to cover up their responsibility for the flood event at Grantham, including by conspiring with prominent members of Federal and State government;
  • the Wagners had illegally constructed the Wellcamp Airport and had unlawfully acquired airspace above the Oakey Army Base, thus harming national defence interests;
  • the Wellcamp Airport was able to be constructed because the Wagners had a corrupt relationship with the Coalition government in Queensland and Canberra; and
  • the Wagners were selfish, insensitive and had falsely claimed to have themselves suffered during the Grantham flood event.

In an extensive 344-page judgment, Justice Flanagan dissected each broadcast said by the Wagners to give rise to defamatory statements. In many instances, the crucial question was whether the words spoken by Mr Jones were capable of conveying a particular meaning or 'imputation' regarding the Wagners.

The ordinary reasonable listener

In determining whether the particular words used by Mr Jones conveyed certain imputations about the Wagners, the Court asked itself how an 'ordinary reasonable listener' would have understood the words used in the broadcast.1This begs the question, who is an 'ordinary reasonable listener'?

Broadly speaking, it is a person of 'fair average intelligence' who 'does not live in an ivory tower but can and does read between the lines in light of that person's general knowledge and experience of worldly affairs'.2 Importantly, when the Court determines the impression that is left on the 'ordinary reasonable listener' consideration is given to the fact that unlike the reader of a written document, the listener of a radio broadcast often does not have the opportunity to reconsider and re-analyse the broadcast.

In this regard, Justice Flanagan noted that he 'remained mindful' of the danger associated with re-listening to broadcasts a number of times prior to arriving at his decision.3

Once it was established that the broadcasts were capable of conveying certain imputations about the Wagners, the Court was then required to determine whether these imputations were in fact defamatory. In many instances, it was admitted by the defendants that if the particular imputation about the Wagners was conveyed by the words spoken by Mr Jones, it was defamatory.

However, occasionally the defendants argued (unsuccessfully) that even if a particular imputation was conveyed it was not defamatory. Again, the Court was required to adopt a reasonableness test, asking 'whether the published matter is likely to lead an ordinary reasonable person to think less of the plaintiff.' 4

Defaming an individual or a corporation?

In some instances, it was disputed whether the statements made by Mr Jones during his broadcasts were 'of and concerning the Plaintiffs'. Under the Defamation Act 2005 (Qld) (Defamation Act), companies do not generally have the right to bring an action in defamation.5 It was therefore necessary for the Wagner brothers to establish that Mr Jones was referring to each of them as individuals during the relevant broadcasts. Notwithstanding that many of Mr Jones' broadcasts referred to the 'the Wagners dam' or 'the Wagner airport',6 Justice Flanagan found that this was sufficient to identify each of the plaintiffs individually.

Were the broadcasts substantially true?

In mounting their defence, Mr Jones and 2GB sought to establish that many of the defamatory imputations broadcast about the Wagners were in fact substantially true.7 The defendants attempted to prove that the Wagners were in fact responsible for the surge of floodwater that killed 12 people at Grantham during the 2011 floods. In addition to the numerous eyewitnesses that gave evidence, four expert witnesses were called, including two hydrologists, a geomorphologist and a civil engineer.

After a detailed examination of the evidence relating to the causes of the floodwater surge, the Court found that the defendants could not establish the truth of the various imputations made by Mr Jones that the Wagners were responsible for the loss of life at Grantham.

A particularly interesting element of this decision was the Court's treatment of the two Commissions of Inquiry concerning the 2011 floods.8 Justice Flanagan noted that the relevance of these two inquiries was limited to background information. His Honour noted that the ultimate findings of the inquiries were irrelevant and consideration could only be given to the evidence presented at trial.

Offer to make amends

The defendants also defended the proceedings on the basis that the Wagners failed to accept an offer to make amends by Mr Jones, 2GB and 4BC. Pursuant to section 18 of the Defamation Act, it is a defence to an action for defamation if the defendant offers to make amends for the defamatory publication and the plaintiff does not accept the offer. However, for the defence to apply the offer to make amends must be reasonable.9

On 27 November 2015 (one month after the claim was filed by the Plaintiffs), the defendants offered to make amends by:

  • broadcasting an apology and retraction;
  • paying the legal expenses of the Wagners; and
  • paying to each of the Wagner brothers the sum of $50,000.

In finding that this offer was not reasonable, Justice Flanagan referred to the fact Mr Jones' broadcasts contained extremely serious and grave allegations, including that the Wagners were responsible for the death of 12 people and had attempted to orchestrate a cover up to avoid blame.

In the circumstances, the offer to pay the sum of $50,000 was 'grossly inadequate'.10 His Honour further found that the draft apology and retraction which accompanied the offer was 'wholly inadequate',11 referring to the fact that 'the apology does not contain an expression of regret...nor does it contain an unqualified acknowledgment of the falsity of the defamations and a withdrawal of them'.12 Accordingly, the defendants were unable to rely on the defence contained in section 18 of the Defamation Act.

A rare permanent injunction

Of particular interest, due to its rarity in these types of cases, the plaintiffs sought a permanent injunction to prevent each of Mr Jones, 2GB and 4BC from ever again publishing or broadcasting the same or similar defamatory material about the Wagners.

Significantly, and in support of his decision to award the injunction, Justice Flanagan noted that, even in the course of giving his evidence during the trial, Mr Jones had 'chose[n] to continue to attack the plaintiff reputations and to repeat many of the defamatory imputations'.13 The effect of the injunction is that if the defendants ever again re-broadcast the defamatory statements about the Wagners, they will be held in contempt of court.

Take home message

In what is likely to be a regularly-cited decision, Wagners v Harbour Radio represents a significant victory for plaintiffs seeking to vindicate their rights under the Defamation Act. The decision reinforces that in proceedings for defamation, the media is not untouchable and can be required to pay large sums of money for continuously publishing defamatory material.

It is also a timely reminder that although corporations are generally excluded from bringing an action in defamation, there can be situations where it is not possible to distinguish between the corporate entity and those who are the face of the company, thus opening up the possibility of commencing an action for defamation.

Perhaps most importantly, the decision demonstrates the powerful remedies that can be awarded by courts in order to both compensate for, and permanently restrain, the publication of defamatory material.


1Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201, [33].

2 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 165-167.

3 Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201, [36].

4 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 473 and 484.

5 Defamation Act 2005 (Qld), section 9.

6 Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201, [48].

7 Under the Schedule 5 of the Defamation Act 2005 (Qld), 'substantially true' is taken to mean 'true in substance or not materially different from the truth'.

8 Commission of Inquiry into the Queensland Floods of 2010-11, Grantham Floods Commission of Inquiry. For completeness, neither inquiry attributed responsibility to the Wagners for the loss of life occurring at Grantham.

9 Defamation Act 2005 (Qld), section 18(1)(c). See also Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [72].

10 Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201, [721].

11 Ibid [727].

12 Ibid [725].

13 Ibid [916].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions