Appeals in the law are creatures of statute: Attorney-General v Sillem  EngR 352; (1864) 10 HLC 704 at 720-721, Mickelberg v The Queen  HCA 35, Deane J at , R v Ferguson; ex parte A-G (Qld)  QCA 227 at . In other words, they never existed at common law, but were instead created by legislation. Therefore, appeals can only be made and determined in accordance with statutory provisions and Court rules about appeals, and primary regard must be had to them. The “common law” of appeals is the case law of interpretation of such provisions.
The joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 distinguished between four types of appeals:
“ Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word “rehearing”. The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term “appeal”, or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.”
It is important for practitioners to understand the different types of appeals in order to be able to know the nature of each type, and therefore how they will be considered and determined. Such knowledge is a prerequisite for practitioners to appraise themselves of the prospects of success in such appeals they may act in.
What is it?
An appeal in the strict sense, also known as an appeal stricto sensu, is the traditional type of appeal: in common law cases, the appellate court could ordinarily review only rulings of law. In England, the Criminal Appeal Act of 1907 introduced the right to criminal appeals against conviction on a question of law.
An appeal in the strict sense is an appeal where the issue is whether the judgment below was right on the material before the trial court: Ponnamma v. Arumogam (1905) AC 383, at p 388. Essentially, the appeal is on a question of law and the central issue is whether the primary judge has committed an error of law.
In Mickelberg v The Queen  HCA 35, Mason CJ noted that:
“an appellate court, in hearing an appeal in the proper sense of the term, is called upon to redress error on the part of the court below. In deciding whether there was error, the appellate court looks to the materials which were before the court below…
“in an appeal in the strict sense the appellate court is confined to the question whether “the order of the Court from which the appeal is brought was right on the materials which that Court had before it”
In such an appeal, the parties are bound by the way they conducted their cases at first instance. The Court may only set aside the judgment below on a ground not previously raised if the circumstances of the case are such as to justify that exceptional course: Chalmers Leask Underwriting Agencies v. Mayne Nickless Ltd (1983) 155 CLR 279, at p 283.
However, no new facts or evidence can ordinarily be admitted: R v Ferguson; ex parte A-G (Qld)  QCA 227 at .
Discretionary decisions will not be set aside, unless there is a clear error by the primary judge. As the High Court stated in the often-quoted decision of House v The King (1936) 55 CLR 499:
“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
Also, findings of fact based on the credibility of witness testimony will only be reversed if the trial judge “has failed to use or has palpably misused his advantage”, or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or the findings are “glaringly improbable”: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (Brennan and Gaudron JJ).
In Queensland, a person convicted in the Supreme or District Court may appeal to the Court against the person’s conviction on any ground which involves a question of law alone. Also, appeals brought by the Attorney-General against sentence under s 669A(1) of the Criminal Code are strict appeals: R v Ferguson; ex parte A-G (Qld)  QCA 227 at .
In civil matters, rule 765(2) of the Uniform Civil Procedure Rules 1999 provides that an appeal from a decision, other than a final decision in a proceeding, or about the amount of damages or compensation awarded by a court, is brought by way of an appeal in the strict sense.
An appeal against a decision not to extend a limitation period falls within this category: Kambarbakis v G & L Scaffold Contracting Pty Ltd  QCA 262,  (Holmes JA).
What is it?
An appeal by rehearing on the evidence before the trial court is similar to an appeal in the strict sense. Again, findings of fact based on the credibility of witness testimony will only be reversed if the trial judge “has failed to use or has palpably misused his advantage”, or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or the findings are “glaringly improbable”: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (Brennan and Gaudron JJ).
As the High Court said in Fox v Percy (2003) 214 CLR 118:
“The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence…
“The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this court reiterated the rule that:
‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.””
As McGill DCJ observed in Barry v. Queensland Nursing Council  QDC 146, the appeal can be described as:
“an appeal where the appellate tribunal was entrusted with making its own determination on the evidence before it, whether or not new evidence was received. The position was not one where the decision under appeal was to be disregarded, and the proceedings conducted as if there had not already been any decision, but the Misconduct Tribunal was required to make up its own mind on the matter, although being entitled to have regard to the views expressed on a relevant point by the original decision maker.”
It follows from the above that the main difference between an appeal by way of rehearing on the original evidence and a strict appeal is the requirement in the rehearing that the appeal Court draws its own conclusions from the undisputed facts and the factual findings of the trial judge from the disputed facts.
However, an error on the part of the primary judge still needs to be demonstrated in order for the appeal to be successful: Norbis v Norbis (1986) CLR at 518- 519 (per Mason and Deane JJ); Allesch v Maunz (2000) 203 CLR 172 (Majority), Williams v The Minister  NSWCA 255 at  per Heydon JA, Scrivener v Director of Public Prosecutions  QCA 454 at ; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd  FCA 1833 at ; Coster v Bathgate  QCA 210, Teelow v Commissioner of Police  QCA 84;  2 Qd R 489 at ; Commissioner of Police v Al Shakarji  QCA 319 at , ; White v Commissioner of Police  QCA 121 at , Berge v Thanarattanabodee  QDC 121; Hemelaar & Anor v Walsh & Ors  QDC 151 at . However, “a sufficiently clear difference of opinion may necessitate that conclusion.”: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd  FCA 1833 at .
Furthermore, parties are largely bound by the way they conducted their cases at first instance. If a new matter is raised and evidence could have been given which by any possibility could have prevented the point from succeeding, the point cannot be taken: Coulton v Holcombe at -. When an appellate court is faced with a fresh point, it must consider the importance of the finality of litigation, the difficulty of the party against whom the new point is raised reaching back in time to hypothetically assess how their conduct of the trial would or may have been different, the related potential unfairness on counsel conducting an appeal and whether allowing the new point would be in the interests of justice: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd  FCA 1833 at .
Nowadays, appeals to the Federal Court are by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd  FCA 1833 at .
Section 93A(2) of the Family Law Act 1975 provides that “in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact”.
In Queensland criminal matters, an appeal against a decision in relation to a criminal offence dealt with summarily in the Magistrates Court can be made to the District Court under section 222 of the Justices Act 1886, and such an appeal is by way of a rehearing: see section 223 of the Justices Act 1886.
Section 118(8) of the District Court Act (Qld) provides that an appeal from the District Court in its original jurisdiction is by way of rehearing, save for its original criminal jurisdiction, providing it relates to an amount or claim for more than the Magistrates Courts jurisdictional limit of $150,000.
In Queensland civil matters, rule 765(1) of the Uniform Civil Procedure Rules 1999 provides that an appeal against a final decision on liability to the Court of Appeal under chapter 18 is an appeal by way of rehearing. This provision also applies to appeals from the Magistrates Court to the District Court: see rule 785(1).
In Murdock v Sterling Law (Qld) Pty Ltd  QDC 226, an appeal against a summary judgment was dealt with by way of rehearing, possibly because summary judgment was considered to be a final judgment.
Discretion of appeal Court
Section 93A(2) of the Family Law Act 1975 provides that the Family Court may in its discretion receive further evidence when exercising its appellate jurisdiction.
In Queensland, rule 766 of the Uniform Civil Procedure Rules 1999 provides that the Court of Appeal may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit or in another way. This provision also applies to appeals from the Magistrates Court to the District Court: see rule 785(1).
Rule 766 therefore confers on the Court of Appeal and the District Court a discretion of whether or not to admit further evidence on appeal.
When further evidence will be allowed
The principles upon which further evidence will be received was discussed by the Court of Appeal in Thomson v Smith  QCA 446 where Muir JA cited the reasons of Lord Wilberforce in Mulholland v Mitchell  AC 666:
I do not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree. Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made. Positively, it may be admitted if some basic assumptions common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice.”
Similarly, in Pickering & Anor v McArthur  QCA 341 it was said that:
“Guidance on the exercise of discretion to admit further evidence can also be found by consideration of decisions on preceding rules of court which require firstly that the further evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that if given it would probably have an important influence on the result of the case although it need not be decisive: third, the evidence must be such as to be apparently credible”
Should such evidence be received, the appeal Court may then give judgment as it thinks proper, or order a retrial, as the Court of Appeal did in Wiltshire v Amos  QCA 294.
What is it?
An appeal de novo is the most unfettered type of appeal where the matter is heard afresh, as though the original decision had never been made. Therefore, parties are not bound by the findings at first instance or the way they presented their case at first instance. Parties may lead different evidence, and have a different case than at first instance. The decision-maker on appeal must hear and consider all of the evidence and re-decide the matter on the evidence before them.
Section 96 of the Family Law Act 1975 provides that appeals from courts of summary jurisdiction shall proceed by way of a hearing de novo, unless the appeal is referred to a Full Court of the Family Court, in which case the Family Court may decide to have the appeal determined de novo.
Such appeals allowed for in Queensland are rare. The Uniform Civil Procedure Rules 1999 does not provide for any such appeals.
In criminal matters, a magistrate’s decision to dismiss a private complaint can be appealed against to the Supreme Court, and such an appeal is by way of an appeal de novo: see section 102D of the Justices Act 1886. Similarly, bail applications to the Supreme Court are usually made after bail has been refused by the Magistrates or District Court. Although technically a new application, it could be said in such cases to be a de facto appeal de novo.
Appeals under the Workers’ Compensation and Rehabilitation Act 2003 to the industrial commission are appeals de novo. However, appeals from the industrial commission to the industrial court are by way of rehearing on the evidence below unless the court orders that additional evidence be heard: see section 561 of the Workers’ Compensation and Rehabilitation Act 2003.
An appeal in the strict sense or an appeal by rehearing on the evidence before the trial court can be subject to leave.
In other words, leave will be required in order for the appeal to be considered proper and determined on the merits. This is a barrier which restricts the number of matters that can be appealed from. There is case law that explains when leave may be granted.
When is leave required?
Section 45 of the Magistrates Courts Act 1921 provides that for Magistrates Court proceedings that are less than the minor civil dispute limit (currently $25,000), an appeal shall lie only by leave of the District Court, which will only be granted if some important principle of law or justice is involved.
Section 118 of the District Court Act 1967 provides that a party who is dissatisfied with a judgment of the District Court, whether in the court’s original or appellate jurisdiction, may appeal to the Court of Appeal, however should the judgment be for an amount or property worth less than the Magistrates Courts jurisdictional limit (currently $150,000), the appeal can only proceed with the leave of the Court of Appeal: see s118(3).
Furthermore, under section 150(3)(b) of the QCAT Act, the Court of Appeal’s leave to appeal will be required to appeal to it against a decision of QCAT’s appeal tribunal.
For an appeal to the Federal Court under the Federal Court Rules 2011, any appeal against an interlocutory decision is subject to leave: see rules 35.10 and 35.11.
Section 94AA of the Family Law Act 1975 provides that leave is required to appeal against a prescribed decree by the Family Court or Supreme Court of a State or Territory constituted by a single Judge, or by the Federal Circuit Court of Australia and the Magistrates Court of Western Australia.
As is well known, before any appeal to the High Court can be dealt with on the merits, there is a need to apply for and then obtain the leave of one or more High Court judges. In most cases, once leave is granted a separate hearing will be conducted to determine the appeal.
When leave will be granted
The oldest leading authority of this test is the decision of Griffiths CJ in Johansen v. City Mutual Life Assurance Society Ltd 1904 12 C.L.R. 186, at p. 188, later quoted and applied in Wanstall v Burke  St R Qd 295:
“The practice we have always laid down… [is] of not granting special leave to appeal unless we are of the opinion that the case is one of gravity, or involving some important questions of law, or affecting property of considerable value; or unless it is a case which is otherwise of public importance, or is of a very substantial character.”
In Ramzy v Body Corporate for GC3 CTS38396 & Anor  QDC 397, McGill DCJ also commented that:
“It has also been said that an important principle of justice requires that there be a question going beyond the consequence of the decision for the immediate parties to the proceeding: American Express International Inc v Hewitt  2 Qd R 352.”
In the Federal Court of Australia, the key principle informing the determination of whether to grant leave to appeal from a decision of a single judge is the decision that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible:Nationwide News Pty Limited v Rush  FCAFC 70 at . An applicant must usually show that in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal and that supposing the decision to be wrong, substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc  FCAFC 844; (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). The sufficiency of the doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. It has also been said that the considerations are cumulative such that leave ought not be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation  FCAFC 139; (2010) 81 ATR 36 at 38  (Ryan, Stone and Jagot JJ); Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd  FCAFC 98; (2017) 252 FCR 1 at 4  (Jagot, Yates and Murphy JJ).
Similarly, in order to secure leave to appeal in the Family Court of Australia, the appellants need to establish that the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered, and that substantial injustice would result if leave was refused: Medlow & Medlow (2016) FLC 93-692; E Pty Ltd and Ors & Zunino and Anor  FamCAFC 216 at .
The very nature of the test shows that leave is not ordinarily granted. There must be some special feature of the proposed appeal concerning an important principle or point of law, or it must be a matter of significant gravity compared with other cases. The leave requirement is a barrier that restricts the appeals that can be heard and determined on their merits.
There are multiple types of appeals which exist in Queensland and the Federal Courts, depending on the body appealed from, the Court or body appealed to, and the value in dispute. Understanding which type of appeal applies, and nature of each appeal is essential to advising on the prospects of success on appeal, as well as how the appeal should be conducted in order to maximise the chances of success.
Strict appeals and appeals by way of rehearing are substantially similar because in both cases error needs to be established at first instance, however there are subtle differences. In appeals which are rehearings, there is a greater scope to admit further evidence, review findings made from undisputed facts, and assess the credibility of witnesses who gave evidence in court, subject to due allowance for the primary judge’s views.
An appeal de novo on the other hand means that the matter is heard afresh, and the decision at first instance is immaterial. There is therefore no need to demonstrate any error, and parties can run their cases differently and present new evidence, because they are not bound by the proceedings at first instance.
An appeal subject to leave needs to identify an important principle or a significant injustice in order for leave to be granted. In many cases, that if a difficult barrier to overcome. Appeals subject to leave are typically the most difficult types of appeals to succeed in for that reason.
For a very long time in Commonwealth legal systems, the legal profession has been regulated for the benefit of clients of lawyers and the public at large. Among other things, there has been a recognised public interest in protecting those liable to pay legal fees from overcharging by lawyers. One of those protections is and has been the legal requirement for a bill to be provided so that the client can seek advice on the fees and charges.
As a result, one of the many modern obligations that lawyers in English legal systems have to comply with in the course of legal practice is to provide clients and any other persons liable for their fees with proper bills before such persons can be liable for or sued for such fees. Continue reading “The law of lawyers bills in Queensland”
A Bangalow solicitor’s sexual harassment of a single mum who worked for him has proven to be costly, and may well end his legal career.
This blog had previously reported on the Owen Hughes sexual harassment case brought by a former employee of his law practice.
Junior/trainee solicitor Catherine Mia Hill began working with Owen Hughes’ Bangalow based law firm Beesley and Hughes Lawyers in May 2015. The evidence showed that that he thought Hill was attractive, wanted to be in a relationship with her and that he communicated that to her. Hughes offered to represent her in a mediation for her own family law matter, and she agreed. Continue reading “Bangalow lawyer Owen Hughes successfully sued for sexual harassment”
The Claimant Warren Jonathan was injured in a motor vehicle accident on 4 August 2012. He subsequently through his solicitors sent to the CTP insurer RACQ a Notice of Accident Claim form under the Motor Accident Insurance Act 1994. The insurer confirmed that the form was compliant with Motor Accident Insurance Act requirements and later admitted liability in full for the accident. Continue reading “Claimant loses injury case for being out of contact to his solicitors”
Judge John McGill SC has been a stalwart of the District Court for over 20 years. His final judgment, an appeal against a decision of Magistrate Suzette Coates, has made him leave the bench with a bang and not a whimper.
Those who are familiar with civil litigation in the Magistrates Court know that it is an unfortunate reality that occasionally litigants will receive “rough justice”. This is often due to the lack of knowledge of civil litigation and/or the flippant attitudes of some Magistrates. This observation in no way is intended to criticise the vast majority of Queensland Magistrates, who are conscientious and serve their state well. Continue reading “Judge McGill SC goes out in a blaze of glory in appeal decision”
Following a marathon mediation, former Wallabies star Israel Folau and Rugby Australia have settled their dispute over the termination of Folau’s employment with Rugby Australia after he made controversial comments on Twitter about homosexuality.
The case was notable and of political significance because it highlighted the tensions between the rights of employers to dismiss workers to preserve their own reputational interests, freedom of religion, and employees being able to publicly express their own opinions outside of work. Continue reading “Israel Folau settles claim with Rugby Australia”
With its latest big win, Sterling Law is establishing its place as an elite Queensland litigation firm, and a force to be reckoned with.
When Joanne Murdock deliberately remained uncontactable to her solicitors for an extended period of time, she received a bill from them for all the work they had done for her.
The bill set out the charges item by item, particularising the date, the time spent and the person who performed the work, but for most items only provided very concise descriptions of the work performed. Examples later complained of included “attendance with you”, and “telephone attendance with you”. Continue reading “Sterling Law sets leading precedent on itemised bills”
A 2015 District Court case has demonstrated how important it is to ensure that your solicitors have your current contact details and are able to contact you to obtain your instructions. The Claimant’s failure to do so in that case resulted in him losing the right to pursue his claim.
The Claimant was injured in a motor vehicle accident on 4 August 2012. He subsequently sent to the insurer a Notice of Accident Claim form. The insurer confirmed that the form was compliant and later admitted liability in full for the accident.
In about March 2013, the Claimant lost contact with his solicitors and did not contact them again until 29 July 2015. There was evidence later adduced in the Court of Appeal that he may have been avoiding the authorities as a result of a suspected arson.
The Claimant applied to the District Court for leave (special permission) to extend the time for bringing his claim in a court so that he would have time to comply with the legislative pre-proceeding requirements.
Section 11(1) of the Limitation of Actions Act 1974 provides that:
“an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person… shall not be brought after the expiration of 3 years from the date on which the cause of action arose.”
However, the Claimant also had to comply with pre-proceeding steps provided by the Motor Accident Insurance Act 1994 prior to commencing his claim, including cooperating with the insurer, making himself available for independent medical examinations and attempting to resolve the claim by compulsory conference before his claim for damages could be filed in court.
Section 57 of the Motor Accident Insurance Act 1994 provides as follows:
“(1) If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.
“(2) However, the proceeding may only be brought after the end of the period of limitation if it is brought within—
(a) 6 months after the notice is given or leave to bring the proceeding is granted; or
(b) a longer period allowed by the court.”
The District Court dismissed the application to extend the time for the following reasons:
The result of the District Court’s decision was that the Claimant missed the time limit and his claim was statute barred. This decision was upheld on appeal. As a result, the Claimant lost his right to pursue the claim. Costs were awarded against him in the District Court and the Court of Appeal.
This is an important case concerning a Claimant’s responsibilities and obligations in respect of his or her own claim.
This case provides a salutary lesson in terms of the following:
Personal injury claims are serious matters and must be taken seriously. In particular, it is extremely important for a Claimant to comply with their obligations at law, as failing to do so may jeopardise their claim.
The four Plaintiffs in this matter were brothers from Toowoomba known as ‘the Wagners’. Through Wagner Investments Pty Ltd, they had purchased a quarry at Grantham in November 1998 which they later sold on 8 December 2011.
The Wagners also owned a large parcel of land (310 hectares) at Toowoomba Cecil Plains Road, Wellcamp and had constructed Toowoomba Airport on that land.
On 10 January 2011, significant flooding occurred in the Lockyer Valley which resulted in 12 people, including young children being drowned.
The second defendant was Alan Jones, a famous radio broadcaster. On radio station 2GB (which was the first defendant) on 28 October 2014, Jones claimed on his radio program that a ‘Grantham cover-up’ had been ‘orchestrated’. He then claimed that the Wagners were in partnership with entities for whose benefit the cover up was for, and asked whether the Wagners were ‘untouchable’. The following day he again spoke of a ‘Grantham cover up’, suggested that the reasons for the cover up included the Wagners, and said that those doing the covering up had a lot to hide.
On 24 February 2015 Jones broadcast the following words on the radio station of the third defendant 4BC:
“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.”
Two days later, Jones followed up on 4BC by asserting that the Wagners had ‘mates’ both in town hall and George Street, including Campbell Newman and Jeff Seeney, and implied that the construction of the Toowoomba airport was anything but legal.
On 2GB on 9 March 2015 Jones asserted there was ‘a massive coverup’, suggested that the dam wall on the Wagners’ property had collapsed, linked the construction of the wall to the Wagners doing what they liked and called for a ‘major inquiry’. The following day Jones in an accusatory tone on 2GB stated that:
“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.”
On 2GB on 11 March 2015, Jones returned to the Grantham issue and then stated the following:
“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…
“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. “As soon as they knew they were in trouble though, they sold it”.
On 11 March 2015, Jones on 2GB said that:
“… 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.”
On 17 March 2015, Jones had an interview with the fourth Defendant and journalist, Nick Cater on 2GB. Jones largely repeated his comments from 11 March 2015. Cater stated that:
“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.”
Jones and Cater then proceeded 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. Cater concluded the interview with Mr Jones by calling for a fresh inquiry.
On 27 April 2015, Jones interviewed the then newly elected Queensland Premier, Annastacia Palaszczuk on 2GB. In that interview, Jones stated that:
“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?”
On 6 May 2015 on 2GB, Jones interviewed Mr Warburton, and stated during that interview that:
“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… “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.”
On 15 May 2015, Jones claimed on 2GB that a discussion about the inquiry into the Grantham floods had recently occurred in Rockhampton between John Wagner, Barnaby Joyce and Warren Truss, I which it was said “that we need to cover each other’s backs in this, you look after us and we’ll look after you”. Jones then claimed they were ‘running scared’.
On 25 May 2015, Jones again claimed on 2GB there was a cover up and suggested it was for the benefit of ‘Wagner and Co’. He also suggested the Wagers were involved in ‘dirty deals’, that crimes had been committed, and that Heather Brown and her husband Dr David Pascoe had been burgled for pursuing the truth.
On 26 May 2015, Jones suggested on 2GB that the approval for the Wagner’s airport involved the stealing of airspace from the Oakey air base which would eventually lead to its closure for their “own selfish, greedy purposes”. Jones also described the Wagers as ‘hypocrites of the year’ who were on “a little comedy routine to convince the poor old Darling Downs punter that they really care” and that “they’ve got as much hide as Jessie the elephant”.
Whilst on Sky News on 2 June 2015, Jones stated that:
“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 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.”
On 4 June 2015, Jones stated on 2GB that:
“… 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 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 overburden 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.”
On 16 June 2015, Jones stated on 2GB that:
“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? 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.”
On 22 June 2015, Jones stated on 2GB that:
“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 investigation has the full cooperation of Boral to whom Wagner sold the quarry in a hurry after the flood, so it will be interesting…”
On 20 July 2015, Jones on 2GB referred to the Toowoomba-based company, Wagners, as “the darlings of the Coalition in Queensland and in Canberra” who built the airport in Toowoomba, remember, without seeking proper approvals.” With a particular vocal emphasis, he asserted the Wagers were “gifted Oakey air space”. Jones went on to suggest that over burden had created a massive wall along the quarry which had collapsed due to the weight of water, and that an inquiry was commencing that day “to end the cover up”.
On 21 July 2015, Jones had an interview with Cater on 2GB concerning the first day of hearings of the Grantham Floods Inquiry. Jones once again referred to a ‘cover up’ and quoted Sault Holt QC saying that “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”.
On 22 July 2015 on 2GB, Jones was effusive in his praise of the inquiry’s’ witnesses and the Commissioner, whilst directing derogatory comments and tone for the Wagners, including references to Denis Wagner “covering his face” and the Wagners being “finished”.
On 24 July 2015, Jones among other statements again asserted on 2GB that there was ‘a cover up at Grantham’ which was related to an alleged conversation in Rockhampton between John Wagner and Warren Truss.
On 28 July 2015, Jones, in a sensationalist tone, suggested on 2GB that the Wagners had intimidated potential witnesses and referred to Wagner’s account of the wall being part of the landscape as “rubbish”.
On 29 July 2015, Jones again discussed the inquiry on 2GB and made numerous remarks, including the following:
“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’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.”
On 31 July 2015, Jones asserted on 2GB that Denis Wagner “was admitting everything he’d previously denied” and that the Wagners had dumped overburden along the creek “contrary to the conditions which allow them to mine the quarry” and that Wagners were at their very, very worst”. Jones also ridiculed Denis Wagner’s assertion that the flood had impacted on their business and asked of the Wagners “What kind of selfish, insensitive grubs are these people?”.
On 4 August 2015, Jones provided commentary on 2GB about Denis Wagner’s evidence at the flood inquiry, claiming that “it wasn’t a pretty sight” and asserting that Wagner had now admitted on oath what he had previously denied. Jones asserted that there was footage which showed what happened at Grantham and again spoke of a cover up in which people were being protected.
On 11 August 2015, Jones spoke with Amanda Gearing on 2GB about her submission to the flood inquiry and her view that the Wagners’ quarry exacerbated the flood, a view that Jones explicitly endorsed.
On 18 August 2015, Jones, after reading various opening statements from the flood inquiry, opined on 2GB that it was:
“… 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 famous Profumo affair, when she said oh Profumo, well he would say that, wouldn’t he. And they would say that.”
On 20 August 2015, Jones discussed the hydrology report and evidence given by Dr John Macintosh to the Grantham Floods Inquiry on 2GB. Jones opined that “you put in a levee bank to solve one problem, and you can cause another”, and that Dr Macintosh’s report “didn’t pass the sanity test”, among other things.
The Wagners sued Jones, 2GB, 4BC and Cater in respect of the above broadcasts.
In order to establish that they have been defamed, a plaintiff must prove the following three elements:
Once a plaintiff has established these three elements, the defendant must in order to successfully defend the claim establish one of the available defences under the Defamation Act 2005 (Qld).
Section 18 of the Defamation Act provides as follows:
“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.”
Section 25 of the Defamation Act provides as follows:
“Defence of justification
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.”
Section 29 of the Defamation Act provides as follows:
“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 …”
Of the 32 matters complained of, Justice Flanagan determined that 76 of the pleaded imputations were conveyed from the abovementioned broadcasts, including the following:
Whilst Justice Flanagan determined that many of the imputations alleged by the Wagners were made out, some were not made out. Furthermore, with respect to the broadcast of 27 April 2015, Justice Flanagan held that it did not contain any defamatory imputations.
The Wagner’s claim against Cater was dismissed as Justice Flanagan found that he did not expressed agreement nor conduce with Jones’ defamatory statements.
Of the imputations concerning claims that the Wagners had constructed a dam wall which had exacerbated the floods and caused/were responsible for the deaths of 12/13 people, 2GB and Jones pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan rejected the conclusions of the expert evidence led for the defendants at trial and determined that the defendants had failed to establish the substantial truth of these imputations.
Of the imputations concerning claims that the Wagners had engaged in a cover up, 2GB and Jones again pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan found Denis Wager to be a reliable and honest witness and determined that 2GB and Jones had failed to establish the substantial truth of these imputations.
Similarly of the imputation concerning claims that the Wagners had engaged in bullying and intimidation, 2GB and Jones again pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan accepted the evidence of John and determined that 2GB and Jones had failed to establish the substantial truth of this imputation.
Of the imputations concerning claims that the Wagners had built an airport illegally or otherwise improperly, 2GB and Jones again pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan once again determined that 2GB and Jones had failed to establish the substantial truth of these imputations.
Of the imputations concerning claims that the Wagners were selfish and greedy, 2GB and Jones again pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan once again determined that 2GB and Jones had failed to establish the substantial truth of these imputations.
The defendants also sought to rely on the defence of fair report of proceedings of public concern under section 29 of the Defamation Act for 10 of the defamatory imputations, however Justice Flanagan held that they had failed to establish this defence with respect of any of the 10 defamatory imputations in question.
The defendants also sought to rely on the defence of failure to accept reasonable offer to make amends under section 18 of the Defamation Act. The offer in question was to apologise to the Wagners, pay them $50,000 each and pay their reasonable expenses. Justice Flanagan determined that the sum of $50,000 for each of the Wagners was ‘wholly inadequate’ and therefore this defence failed.
As a result of the above findings, the amount of damages to be awarded to the Wagners was the remaining question which had to be determined. Justice Flanagan found that the publican of the defamatory matters was ‘very extensive’, based on the audience figures (which only included city listeners) and the evidence of the ‘grapevine effect’ resulting in the Wagners being regularly asked about the matters concerning the defamatory publications. Justice Flanagan also found that “The 80 imputations conveyed are, in my view, extremely serious and of the gravest kind”. Justice Flanagan also observed that the Wagners’ evidence concerning their hurt feelings, including humiliation and feelings of helplessness were not challenged by the defendants.
Justice Flanagan determined that Jones had engaged in unjustifiable conduct and was motivated by a desire to damage the plaintiff’s reputation. In particular, Jones had acted with wilful blindness to the truth or falsity of what was broadcast, and the tone of the matters and their content were self-evidently vicious and spiteful. He had also failed to make any inquiry of the Wagners, to ascertain responses or to inform the Wagners. Jones’ conduct in repeating a number of defamatory assertions in the course of his evidence was also found to be unjustifiable. For these reasons, the awarding of aggravated damages was appropriate.
As a result of these factors, the court ordered that:
This matter arose out of Alan Jones’ apparent conviction that a wall on the Wagners’ quarry had caused the deaths of 12 people and that a high-level cover up had occurred to hide this (among other claims). The problem for Jones, 2GB and 4BC was that there was insufficient evidence to support these claims, and in fact two flood inquiries had found that the Wagners property had not exacerbated the flood at Grantham. Compounding this were the gratuitous and unfair attacks on the Wagners’ characters, as well Justice Flanagan’s findings that Jones was motivated by malice and had shown wilful blindness to the truth or falsity of what was broadcast. All of these factors contributed to a substantial sum in damages being awarded in favour of each of the Wagners.
2GB and 4BC were vicariously liable for Jones’ conduct whilst broadcasting on their radio stations. This case is a good example of how serious allegations should be made and presented as fact by publishers when there is little or no evidence to support them. Such conduct can destroy the reputation of others, as it did in this case. The Wagners had little other recourse than to sue for defamation in order to salvage their reputations. Because the allegations turned out to be untrue and/or unproven, liability was established.
Litigation is very tough on litigants. They find themselves in an environment where in spite of their strong feelings about their case, their emotions carry no weight and are seldom acknowledged by the court. Furthermore, their fate at trial is the hands of a third party who may rule against them, with disastrous consequences. Adverse findings can be made against them. There is an incredible amount of stress associated with such risks. And of course, there is the massive amount of money they have to pay towards their own legal costs. Continue reading “Judge Sandy Street denounced by Federal Court”