One way to minimise the risk of an award of aggravated damages in a defamation claim, while still denying that the matter conveyed defamatory imputations, appears to be a conditional apology. That is, for the defendant to publish a statement explaining that it did not intend to convey the alleged defamatory meaning, but if such a meaning is conveyed, the defendant apologises.
This is the finding of the Queensland Court of Appeal in Nine Network Australia Pty Ltd & Ors v Wagner & Ors  QCA 22 (Wagner).
These proceedings relate to a defamation claim brought by four Wagner brothers against the publishers of 60 Minutes, Nine Network, and journalist Nick Carter regarding the 2011 Grantham flood that killed 12 people (Wagner & Ors v Nine Network Australia & Ors  QSC 284).
At first instance, the jury found that the programme imputed that the Wagners:
- caused a flood that devastated the town of Grantham by failing to take steps to prevent a quarry wall on property which they owned from collapsing
- sought to conceal the truth about the role their quarry played in causing the flood
- disgracefully refused to answer to the public for their failure to take steps to prevent a quarry wall they owned from collapsing and causing the flood.
Justice Applegarth awarded each of the Wagners aggravated damages in the amounts of $600,000, against the Nine Network defendant, and $300,000 against Mr Cater (as part of a total award of damages of $3.6 million, plus interest).
The basis for the award of aggravated damages was that the defendants had engaged in conduct that was improper, unjustifiable or lacking in bona fides, particularly where the findings of a Commission of Inquiry had earlier discredited the allegations in the program, and the defendants failed to broadcast a correction, retraction or apology in the years following the program.
The defendants appealed to the Queensland Court of Appeal, principally challenging the award of aggravated damages. Their Honours, Morrison and Mullins JJA and Jackson J agreed with the trial judge that the appellants' failure to correct, retract or apologise for the publication was a basis for awarding aggravated damages in circumstances where throughout the proceedings the defendants had denied that the alleged imputations were conveyed.
In coming to this conclusion, the Court reviewed the case law on aggravated damages. They noted that in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 (Carson) the High Court held that while an apology can mitigate damages, the failure to publish an apology does not increase the plaintiff's hurt or widen the area of publication so as to aggravate damage. However, this statement in Carson was later distinguished in Ali v Nationwide News Pty Ltd  NSWCA 183, wherein failing to publish any retraction or apology, a defendant was held to be continuing to assert the imputations found to have been published. Similarly, in Bauer Media Pty Ltd v Wilson (2018) 361 ALR 642, the Victorian Court of Appeal awarded aggravated damages for the failure to retract and apologise for what was known by the defendant to be false before the publication was made, "Bauer's continued failure to apologise and correct the record was not justifiable or bona fide."
The Court of Appeal in Wagner held that the appellants could have cast a conditional retraction or apology, which would have been
"a logical solution to the inconsistency between maintaining that defence and making a retraction and apology because the imputations alleged could not be justified as substantial truth...given that the defence of justification by substantial truth was pleaded without a reasonable basis and was only withdrawn after judgment in the Harbour Radio case, with no other acknowledgment that the defamatory matter alleged in the program was untrue."
Following this case, defendants may want to consider giving a conditional apology in circumstances where they continute to deny that the alleged imputations are conveyed by their publication.
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