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.
It’s understood it’s a favourable result for Folau, who not only will receive an undisclosed sum in damages, but who also received a public apology from Rugby Australia.
Janet Albrechtsen reports:
“On Wednesday afternoon, following marathon mediation negotiations, RA wholeheartedly apologised to Folau. In fact, the humiliating settlement overseen by Castle saw RA “acknowledge and apologise for any hurt or harm caused” to both Israel and his wife, Maria. It reads like a mea culpa from RA for being part of the pile-on that Maria endured when she publicly supported her husband during this battle.
“Folau received money from RA, too. That’s in addition to the $2.1m fighting fund to cover his legal expenses from Australians who support Folau’s right to express his religious views, even if many — like me — disagree vehemently with his views. That, after all, is the real test of our commitment to freedom of expression, and religious freedom, in a liberal democracy.”
Reading between the lines, Rugby Australia’s legal position may not have been as strong as they were claiming. But another explanation is that the ongoing drama with the player who used to be their biggest star overshadowing the game itself would have proven very costly in itself.
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”.
Nearly a month later, Joanne Murdock saw another firm named Whitehead Crowther Lawyers for advice on the bill. They wrote to her former solicitors requesting “a bill in itemised format prepared in accordance with the law society rules (sic)”. Because of Joanne Murdock’s failure to make any part payment, secure the costs of her former solicitors or even accept instructions for service, her former solicitors commenced proceedings in the Magistrates Court of Queensland for recovery of their fees and disbursements.
A few months later, her former solicitors obtained summary judgment at a hearing before Magistrate Noel Nunan, who also refused to order a costs assessment.
Joanne Murdock then appealed this decision, appointing Rose Litigation Lawyers to do so. Rose Litigation Lawyers filed a Notice of Appeal, in summary contending that Magistrate Nunan had erred in finding the bill was an itemised bill and for refusing to order a costs assessment.
Section 300 of the Legal Profession Act 2007 (Qld) defines the following terms:
“itemised bill” means a bill stating, in detail, how the legal costs are made up in a way that would allow the legal costs to be assessed under division 7.
“lump sum bill” means a bill that describes the legal services to which it relates and specifies the total amount of the legal costs.
Section 332 of the Legal Profession Act 2007 (Qld) relevantly provides that:
332 Request for itemised bill
(1) If a bill is given by a law practice in the form of a lump sum bill, any person who is entitled to apply for an assessment of the legal costs to which the bill relates may request the law practice to give the person an itemised bill.
A bill in the form of a lump sum bill includes a bill other than an itemised bill.
(2) The law practice must comply with the request within 28 days after the date on which the request is made.
(5) If the person makes a request for an itemised bill within 30 days after receiving the lump sum bill, the law practice must not commence proceedings to recover the legal costs from the person until 30 days after complying with the request.
The Legal Profession Act 2007 (and the many statutes before it) provides for a process where an independent person known as a costs assessor goes through a lawyer’s bill and decides which charges on a bill are fair and reasonable, and should be allowed. This process is known as a costs assessment, and is primarily intended to protect clients of solicitors. Section 335 of the Legal Profession Act 2007 (Qld) relevantly provides that:
335 Application by clients or third party payers for costs assessment
(1) A client may apply for an assessment of the whole or any part of legal costs.
(10) Subject to this section, a costs application under subsection (1) or (2) must be made in the way provided under the Uniform Civil Procedure Rules.
Rule 740 of the Uniform Civil Procedure Rules 1999 relevantly provides that:
(1) After a certificate of assessment is filed, the registrar of the court must make the appropriate order having regard to the certificate.
(2) The order takes effect as a judgment of the court.
Rule 743A of the Uniform Civil Procedure Rules 1999 relevantly provides that:
743A Application for costs assessment
(1) A person applying for a costs assessment must apply to the relevant court.
(2) The application must—
(a) be in the approved form; and
(b) state the names of any persons to whom notice must be given under the Legal Profession Act 2007, section 339 (1); and
(c) if practicable—
(i) nominate a particular costs assessor for the assessment; and
(ii) state the applicable hourly rate of the nominated costs assessor; and
(d) be accompanied by the following—
(i) an affidavit;
(ii) if applicable, the nominated costs assessor’s consent to appointment to carry out the costs assessment and confirmation that, if appointed, there would be no conflict of interest;
(iii) the prescribed fee.
(3) If the applicant has an itemised bill for all of the costs to be assessed under the application, a copy of the itemised bill must be an exhibit to the affidavit.
(4) If the applicant does not have an itemised bill for all of the costs to be assessed under the application, the best information the applicant has as to the costs to be assessed must be included in the affidavit.
(5) The affidavit must also—
(a) state whether the applicant disputes or requires assessment of all or what part of the costs; and
(b) if the applicant disputes all or part of the costs, state the grounds on which the applicant disputes the amount of the costs or liability to pay them.
In Keene v Ward  EngR 1210, The Queen’s Bench held that a solicitor’s bill must contain sufficient information for him to obtain advice about taxation, but that an exactness of form was not required.
In Cook v Gillard  EngR 942, the House of Lords held that a solicitor’s bill which failed to specify in which Court the business was done was still valid, as such information would presumably already be within the knowledge of the client.
In Haigh v Ousey (1857) 7 El. & Bl. 578 119EngRep, it was held that the question of whether a bill was sufficient for a client to be advised about whether to seek taxation of the solicitor’s costs depended on what further information the client was able to tell their advisors about the charges.
In Clayton Utz Lawyers v P & W Enterprises Pty Ltd  QDC 5, Judge Reid of the District Court of Queensland held that the generalised and incomplete descriptions of the work in the bills provided by the law firm were not itemised bills within the meaning of the Legal Profession Act 2007 as they provided “a wholly inadequate explanation of the work actually performed”. Consequently, the law firm was ordered to deliver itemised bills.
On the other hand, in Pott v Clayton Utz  QSC 167 it was held by the Supreme Court of Queensland that the client has an onus to show what further information they require to get advice about applying for a cost assessment, otherwise the solicitor’s bills would be presumed to be itemised bills, and that merely swearing to a generalised concern of overcharging is insufficient to discharge this onus.
At the hearing, Judge Porter QC immediately identified that the central issue of the appeal was whether the bill provided was an itemised bill within the meaning of the Legal Profession Act 2007, as all of the grounds of appeal depended on the bill being found to not be an itemised bill. His Honour also correctly noted that the central problem for Joanne Murdock was that she had not sworn any affidavit in the Magistrates Court proceedings concerning the extent of her knowledge of the charges contained in the bill. An adjournment application to adduce fresh evidence at the hearing was dismissed ex tempore.
Whilst Judge Porter QC held that a proper request for an itemised bill had been made within 30 days as required to enliven the prohibition on suing in section 332(5) of the Legal Profession Act, he also held that the bill was an itemised bill, and therefore there was no prohibition on the law practice commencing recovery proceedings when it did. The reasons why the bill was an itemised bill were because it specifically identified all the work performed and the names of other persons involved, most of the unparticularised attendances involved relatively short periods of time, and that Joanne Murdock would be expected to know much about the work performed for her. In any event, the absence of evidence by Joanne Murdock as to the extent of her knowledge meant that she had failed to discharge the onus of showing she did not have sufficient information to obtain advice about the bill.
Judge Porter QC rejected other arguments in support of the appeal, including that Magistrate Nunan should have ordered a costs assessment, that the terms of the mandatory costs disclosure provided to Joanne Murdock formed a part of the contract between herself and the firm, and that the Defence filed for Joanne Murdock constituted evidence of the truth of its contents because it was exhibited to an affidavit filed by the firm.
Because there was no error on the part of Magistrate Nunan, the appeal was dismissed with costs.
This case is the latest in a long case history of clients being sued for outstanding fees complaining about the sufficiency of the contents of the bill in order to avoid judgment being entered or standing against them. Applying the established principles derived from the case law, the District Court held that the client had failed to discharge her onus to show that the bill was not an itemised bill, because she had not provided any evidence of the extent of her knowledge of the work done for her. As a result, the appeal had to be dismissed.
This case again shows how whether a bill is sufficient will vary from case to case, depending on the client’s own knowledge or presumed knowledge. The (common) view that it is only the information that is contained on the face of the bill itself that matters is erroneous, because the test is whether another solicitor can provide advice based on the contents of bill supplemented by the client’s own knowledge of the matter. It is only when the sum of these two factors still means that the client cannot make an informed decision of whether to seek a costs assessment that the bill can be deemed inadequate and (upon a proper request) the prohibition on the law firm suing provided in section 332(5) of the Legal Profession Act applies.
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.
In return, the least litigants are entitled to expect is a judge who properly hears their case and considers it in a fair minded way.
Unfortunately, this is not what has been happening for many cases before Judge Sandy Street:
“A federal judge who has had at least 61 judgments overturned on appeal since his appointment 3½ years ago has been found in recent cases to have repeatedly failed to fulfil the basic judicial task of properly trying cases and giving adequate reasons for his decisions.
In a scathing appeal judgment two weeks ago, Federal Circuit Court judge Sandy Street was found to have “manifestly failed to give adequate reasons, and in places reached conclusions that were plainly wrong”, when he threw out a claim brought by a teacher who had been denied a termination payment promised by the Sydney Catholic school system.
Judge Street — whose father, Sir Laurence, grandfather and great grandfather were all former NSW chief justices — had delivered his decision “ex tempore”, or on the spot, without retiring from the bench for consideration.
Many of his judgments have been delivered ex tempore, helping him to dispose of about 1370 cases in a 26-month period, while the other eight Sydney general federal law judges combined disposed of just 2290 cases.
“When ex tempore judgments are used inadequately or inappropriately, the quality of justice delivered may fall below acceptable standards, perceived efficiency may be illusory … costs may be greatly increased (especially due to an appeal) and the final resolution of a dispute may be delayed, rather than accelerated,” he said.”
Whilst the Federal Circuit Court does have an incredible workload given the number of family law matters and the variety of other federal matters which come before it, it is important for the interests of justice that litigants are afforded a fair hearing and have their cases considered in a fair and balanced manner.
Interestingly, when he was at the bar Judge Street called for a fairer process with respect to the appointment of barristers to silk. The Federal Court clearly wishes for fairer processes in Judge Street’s courtroom.
A recent Court of Appeal decision has upheld the decision of a District Court judge to impose a costs order against the director of a company that had been placed into liquidation five days after the close of evidence of a trial.
At all material times Geoffrey Murphy was the sole director and ‘controlling mind’ of the defendant Collhart Investments Pty Ltd, formerly known as JM Kelly (Project Builders) Pty Ltd in civil proceedings in the District Court. The Plaintiff in that civil action was Mackay Labour Hire Pty Ltd, and it was suing for $288,242.54 for labour hire provided under various contracts. The defendant had also countersued for moneys it said had been paid to the plaintiff under a mistake of law.
Continue reading “Non party costs order against company director upheld on appeal”
Amy Louise Robinson was employed by activewear company Lorna Jane Pty Ltd between July and December 2012 as manager of Lorna Jane’s DFO store at Skygate near Brisbane Airport.
Ms Robinson claimed to have suffered a psychiatric injury from workplace bullying by Megan McCarthy (Lorna Jane’s learning and development manager) and haemorrhoids when lifting and moving heavy boxes of stock during the course of her employment.
Vicarious liability is a common law principle which imposes liability despite the employer’s not itself being at fault. The claim for psychiatric injury alleged that Lorna Jane was vicariously liable for the actions of McCarthy and also that an email from a former DFO store employee named Ms Maninnen which alleged ill-treatment of Robinson by McCarthy had put the company ‘on notice’ and that it had subsequently failed to investigate.
Continue reading “Lorna Jane’s comprehensive court win”