Why network is appealing Wagner case
FIVE Channel 9 companies and a journalist have appealed an order that they pay four Toowoomba brothers almost $3.7 million in defamation damages, claiming it is manifestly excessive.
Nine Network Australia, four other Nine defendants and journalist Nick Cater also claim Justice Peter Applegarth made other errors in his November 22 decision.
Justice Applegarth ordered the Nine defendants to pay each brother $600,000 damages each, plus $63,000 in interest.
He ordered Mr Cater to pay each brother $300,000, plus $31,500 in interest.
The program included allegations falsely linking their quarry wall's collapse to the catastrophic Grantham floods.
"Being falsely accused of having failed to take steps to prevent their quarry wall collapsing, causing the deaths of 12 people and the destruction of a town, is an extraordinarily serious defamation,'' Justice Applegarth said.
Justice Applegarth in December also ordered the defendants to pay the Wagners costs.
The Nine defendants and Mr Cater have asked the Court of Appeal to set aside Justice Applegarth's judgment and costs orders.
If successful in their appeal, they want the damages to be reassessed by the trial judge.
They are also appealing on grounds relating to the awarding of aggravated damages and ordinary compensatory damages.
They allege Justice Applegarth made errors in his findings over the defendants' failure to correct, retract or apologise.
The judge said the fact that the defendants wished to contest that their publications conveyed the alleged defamatory meanings was not a good reason to continue to refuse to issue a public correction, retraction or apology.
He found the failure to retract and apologise after the Grantham Floods Commission of Inquiry and the Harbour Radio defamation decision was unjustifiable or improper.
The inquiry found that the flood was a natural disaster and that no human agency caused it or could have prevented it.
The appeal argues against Justice Applegarth's decision that the defamation warranted an award of aggravated damages.
The appeal grounds say the judge erred in the different ways he awarded ordinary compensatory damages against the Nine defendants and Mr Cater.
It is claimed the combined damages award of $900,000 for each brother did not bear an appropriate and rational relationship to the harm sustained by each brother and was manifestly excessive.