Federal Court of Australia

Thurston v Fox Sports Australia Pty Limited [2026] FCAFC 89

ORDERS

THE COURT ORDERS THAT:

1.    The first appellant’s appeal against the first, second and third respondents be dismissed.

2.    The second and third respondents pay the first appellant’s costs of the appeal.

3.    The second and third appellants’ appeal against the second and third respondents be allowed and their proceedings be remitted to the primary judge for further hearing.

4.    The second and third respondents pay the second and third appellants’ costs of the appeal.

5.    The second and third appellants’ appeal against the first respondent be dismissed.

6.    The second and third appellants pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    The appellants appeal against an order of the primary judge dismissing their claims in defamation against Fox Sports Australia Pty Limited (Fox Sports) and TCN Channel Nine Pty Ltd and Nine Network Australia Pty Ltd (together, Channel 9), arising out of two separate television broadcasts of a rugby match in Gosford, New South Wales between the Penrith Panthers and the New Zealand Warriors, as long ago as August 2020.

2    The appeal was first heard on 24 and 25 March 2026. At the request of the appellants a further hearing was held on 14 May 2026 to address further the implications of s 10 of the Defamation Act 2005 (NSW).

3    The appellants contended below and on appeal that the publications by Fox Sports and Channel 9 defamed them by carrying imputations to the effect that each of them is racist and had racially vilified or racially abused, or made vile racist remarks towards, Mr Brent Naden (one of the Penrith Panthers players, who is an Indigenous Australian).

4    The appellants also sued Channel Seven Sydney Pty Ltd and Seven Network (Operations) Limited (together, Seven) in defamation in respect of its broadcast. The primary judge found that Seven was liable in defamation and awarded each applicant the sum of $200,000 in damages, plus interest. Seven did not appeal the orders made by the primary judge to that effect.

5    Each of the broadcasts by Fox Sports, Channel 9 (and Seven) involved discussion between commentators of some footage in which the appellants, among others, were shown being ejected by officials from the stadium at which the rugby game was being played.

6    The ejection of the appellants was first broadcast by Fox Sports during the half time break of its live coverage of the match, and then a little later in the evening by Channel 9 (and Seven).

7    As against Channel 9, the appellants failed before the primary judge because his Honour found that the pleaded defamatory imputations were not made out.

8    As against Fox Sports, the appellants succeeded on their case that the pleaded defamatory imputations were made out, but their claims were dismissed because the primary judge upheld Fox’s defence of honest opinion under s 31(2) of the Defamation Act.

9    On appeal, the appellants contended that the primary judge, in the case of Channel 9, should have found that the pleaded imputations were made out, rejected its defences, and awarded substantial damages; and in the case of Fox, should have rejected all its defences and likewise awarded substantial damages.

10    The appellants sought orders that their appeals be allowed; judgment be entered against Fox Sports and Channel 9 in an (unspecified) amount of damages; and that Fox Sports and Channel 9 pay their costs of the proceeding below.

11    The position with respect to the first appellant must be considered separately because Mr William Thurston died in 2025, after judgment was delivered. His administrator ad litem appealed on behalf of Mr William Thurston’s estate. For reasons explained below, to the extent that he seeks orders that the appeal be allowed; judgment be entered in his favour; and that he be awarded a sum in damages, his appeal is proscribed by operation of s 10 of the Defamation Act.

12    Fox Sports and Channel 9 relied on separate notices of contention.

13    Fox Sports contended that the primary judge erred in finding that the pleaded imputations were made out and that if he was wrong in his finding that it had established an honest opinion defence, his Honour should in any event have upheld its defence of statutory qualified privilege under s 30 and its justification defence under s 25.

14    Channel 9 contended that if the primary judge was wrong in rejecting the pleaded imputations, it was entitled to rely on its defence of statutory qualified privilege under s 30 and its justification defence under s 25 (which the primary judge did not consider because he found that none of the pleaded imputations were conveyed).

15    In our respectful view, in the case of Channel 9, the primary judge erred in rejecting the pleaded imputations. His Honour ought to have found that each of the imputations was conveyed. In those circumstances, we will remit the matter to the primary judge for further hearing in relation to Channel 9’s pleaded defences.

16    In our respectful view, in the case of Fox Sports, the primary judge correctly found that the pleaded imputations were conveyed, and was also correct to uphold Fox’s honest opinion defence, with the consequence that, as against Fox Sports, the appeal should be dismissed. It follows that it is otherwise unnecessary to deal with Fox Sports’ notice of contention.

the facts

17    Before turning to consideration of the broadcasts the subject of the appeals, it is necessary to set out the findings of fact made by the primary judge about what happened at the rugby game, which, because of COVID-19 restrictions imposed at the time, was played before a quarter full stadium.

18    The factual findings set out below are adapted from his Honour’s reasons, and they were not controversial. See J at [76]ff.

19    On 14 August 2020, the appellants and 11 of their friends (William (Billy) Perry, Ryan Xerri, Harry Pirini, Luke Ponton, Trust Ledger, Bobby Johnathan, Thomas Starkey, Zion Pene, Nick Valentine, Jason Kakato and Kohatu Tierney) (the Group) entered the stadium at approximately 6.00 pm at or shortly after the time the game began, and separated into four groups. Mr Thurston and Mr Townsend initially sat with Mr Perry, Mr Pene, Mr Ledger, Mr Xerri and Mr Ponton in Bay 4, on the western side of the stadium (Bay 4 Group). Mr Renner initially sat with Mr Valentine in Bay 8. Mr Jonathan and Mr Starkey initially sat in another area in or near Bay 8, which was to the north of Bay 4. Mr Kakato and Mr Tierney initially sat in Bay 51, which is on the eastern side of the stadium.

20    About 15 to 20 minutes later, Mr Jonathan and Mr Starkey and then the Bay 4 Group moved to Bay 8 to join Mr Renner and Mr Valentine. Finally, shortly prior to the Group being ejected, Mr Kakato and Mr Tierney joined the Group in Bay 8 but both had joined a bar line to buy drinks and were not sitting with the Group at the time the other members of the Group were ejected.

21    In the first half, the Panthers were running from north to south. During that half, the Panthers’ goal line was on the northern end of the stadium and the Warriors’ goal line was at the southern end. Mr Naden was playing on the right wing for the Panthers and was therefore playing in a position that placed him close to the western side of the stadium and to the appellants.

22    At approximately 6.10 pm, Mr Naden scored a try for the Panthers in the south-western corner of the field near where the Bay 4 Group were sitting.

23    Before moving to Bay 8, the Bay 4 Group made what the primary judge described as “a series of derogatory and robust comments” directed at Mr Naden that “might charitably be characterised as sledging rather than verbal abuse, including comments that Mr Naden had a ‘bad haircut’, he was ‘a shit football player’ and he ‘couldn’t catch a ball’”.

24    His Honour noted that Mr Naden gave evidence that he was initially not unduly affected by those comments, describing them as “just little normal banter stuff which I thought was funny”. He said that at one stage he turned to the Bay 4 Group and pointed out that they had paid $20 to see him play, and he observed the “crowd around them thought it was a bit funny”.

25    Another spectator, a Ms Cowie, gave evidence that she was seated in Bay 5 of the stadium with her husband, Mr Walford, and that she heard a group of men yelling words such as “black” and “brother” at Mr Naden and at one stage one of them mentioned the phrase “domestic violence”. Mr Walford gave evidence that he heard a group of males yelling out quite loudly during the first half, using words like “black” and “brother”, the latter with an “Aboriginal type accent” that sounded like “bruddah”.

26    Mr Naden gave evidence, which the primary judge accepted, that shortly after hearing a member of the Bay 4 Group shout out “Malcolm Naden”, he heard a member of the same group make “the Rolling Sound”. (Counsel at the appeal told us the rolling sound referred to a noise that sounds like “Brr”, which Mr Naden testified was a noise used in his culture in song and ceremony). Malcolm Naden is a distant relative of Mr Naden, and in New South Wales is notorious as a fugitive who was arrested and convicted of murder and rape in 2013 and was sentenced to life imprisonment.

27    Following the reference to Malcolm Naden and the making of the rolling sound, Mr Naden had a discussion on the field with Mr Knowles (which his Honour called the “First Complaint”). Mr Knowles was the on-field trainer for the Panthers. He gave evidence, which the primary judge accepted, that Mr Naden told him that he was being racially abused by a group of spectators, they were “making Indigenous noises”, Mr Naden appeared to be “rattled” and “very distracted”, and Mr Naden pointed out to him the group of spectators that had racially abused him.

28    Mr Naden had a further discussion with Mr Knowles after Mr Naden observed that the Bay 4 Group had moved to Bay 8 to join the other members of the Group (which his Honour called the “Second Complaint”). Shortly after Mr Naden’s discussion with Mr Knowles, Mr Naden was approached on the field by Mr Catterick, who was the Panthers’ medical and rehabilitation coordinator. Mr Naden told Mr Catterick that he was trying to remain focused on the game but “the blokes are still yelling at me” and “[t]hey’re calling me Malcolm and making Aboriginal calls to me”. Mr Naden then pointed to “a group of people sitting at the Northern end of the lower grandstand”.

29    His Honour also found that “[t]he sledging of Mr Naden continued after the Bay 4 Group relocated to join Mr Renner and the other members of the Group in Bay 8”. It was directed at Mr Naden, and “was along the lines of shouting to him ‘you have a shit haircut’, ‘you’re a shit player’, ‘you can’t catch’ and ‘don’t drop the ball’ and shouting to the Warriors that they should ‘run it’ and Mr Naden was ‘a speedhump’”.

30    Mr Gare, who was the Fox Sports freelance cameraman, gave evidence, which the primary judge accepted, that he heard members of the Group shout at Mr Naden, while he was filming them, “you’re shit, you’re shit” and “[y]ou effing dog”.

31    The primary judge also found that “[o]ther than the evidence of Mr Catterick that Mr Naden told him the Group was still ‘calling [him] Malcolm and making Aboriginal calls to [him]’, there was no evidence that the sledging from Bay 8 had any racist character. Mr Naden only gave evidence that he heard the Rolling Sound or any reference to Malcolm Naden from the Bay 4 Group when they were sitting in Bay 4”.

32    Shortly after the Second Complaint, Mr Knowles approached the Group and exchanged words with them.

33    His Honour found that when Mr Knowles approached the Group, and before he could say anything to them, they said “yeah yeah we know … racial abuse won’t be tolerated … we can say whatever we want” as he (Mr Knowles) was saying “you can’t do this shit, you can’t …”.

34    The late Mr Thurston gave evidence that Mr Knowles “told us that he’s going to get us kicked out” to which he responded, on multiple occasions, “[y]ou cannot kick us out unless we’re swearing or saying anything racial”.

35    Mr Perry gave evidence that Mr Knowles was “shouting out stuff” but Mr Perry did not know what he was saying and that Mr Thurston responded along the lines of “we’re allowed to sledge. We’re not saying anything [racist] … and we’re not swearing”.

36    Mr Renner gave evidence that Mr Knowles told the Group “[i]f you don’t stop, I will get you kicked out” to which Mr Thurston responded, along the lines of, “[y]ou can’t kick us out unless we are swearing or saying racist comments”.

37    Mr Townsend gave evidence that Mr Knowles “just told us to be quiet”. He recalled that Mr Thurston responded to Mr Knowles but does not recall what he said.

38    The primary judge also accepted that in addition to protesting that they were not saying anything racist, Mr Thurston also stated the Group was not swearing.

39    The primary judge also said that he did not accept, contrary to the propositions put to the appellants and their witnesses, “that their use of the word ‘shit’ to describe Mr Naden’s haircut or to suggest he was a ‘shit player’ was necessarily inconsistent with their denial of swearing. Young men watching an NRL match may well have regarded ‘shit’ as a relatively inoffensive and inconsequential word to use in sledging a player on the field”.

40    At approximately 6.40 pm, shortly before half time, nine members of the Group were approached by New South Wales police officers and after a short discussion were escorted out of the stadium. (The other members of the Group were in the process of purchasing drinks for the half time break and were not sitting in Bay 8 at the time of the ejection.)

41    As he was standing up to leave the stadium accompanied by the police officers, Mr Perry shouted “Go the Warriors!” in response to a good play by the Warriors, and then made the rolling sound. Having viewed the video of the removal of the Group from the stadium, which included footage of Mr Perry making the rolling sound, his Honour accepted Mr Perry’s evidence that he made the sound as part of his “cheering in the [W]arriors”, not as “voicing” his annoyance at being ejected, as suggested to him in cross-examination, nor as any racial abuse directed at Mr Naden.

42    After leaving the stadium, the appellants learnt as a result of messages they received on their phones that it had been reported they had been ejected from the stadium for making racially abusive comments directed at Mr Naden.

43    His Honour then made the following specific factual findings, relevantly as follows:

108    In summary, having regard to the whole of the evidence, I make the following specific factual findings with respect to the contested particulars of justification concerning references to Malcolm Naden and the making of the Rolling Sound:

(a)    Mr Naden heard a member of the Group shout out the name Malcolm Naden on only one occasion and that was from Bay 4;

(b)    the person who shouted the name Malcolm Naden was Mr Perry;

(c)    none of the members of the Group who were seated with Mr Perry in Bay 4 at that time disassociated themselves from Mr Perry shouting the name Malcolm Naden;

(d)    Mr Naden heard a member of the Group make the Rolling Sound shortly after he heard the name Malcolm Naden being shouted from Bay 4;

(e)    upon hearing the name Malcolm Naden and the Rolling Sound, Mr Naden believed that he was being racially abused and he felt frustrated, angry and annoyed;

(f)    Mr Thurston and Mr Townsend, but not Mr Renner, were seated in Bay 4 at the time that Mr Naden heard Mr Perry shout Malcolm Naden and a member of the Bay 4 Group make the Rolling Sound;

(g)    shortly after Mr Perry shouted out the name Malcolm Naden and a member of the Bay 4 Group made the Rolling Sound, the Bay 4 Group joined Mr Renner and other members of the Group sitting in Bay 8;

(h)    members of the Group continued to verbally abuse Mr Naden from Bay 8, after they were joined by the Bay 4 Group, until they were ejected;

(i)    Mr Perry made the Rolling Sound immediately after shouting “Go the Warriors” at the time he and other members of the Group were being ejected from the Stadium;

…

44    His Honour also found as follows:

109    I otherwise do not accept that there was any probative evidence, and I otherwise accept the denials of the applicants and the members of the Group that gave evidence that:

(a)    any comment was made by any member of the Group from Bay 4 or subsequently from Bay 8 to the effect that Mr Naden was a murderer and rapist like his distant relative, Malcolm Naden; or

(b)    any member of the Group made sounds in the Stadium associated with and made at traditional Indigenous Australian ceremonies or during ritual practices, other than on the three occasions referred to above at [108(d)], [108(i)] and [108(k)].

45    For reasons that we explain below, it is also necessary to set out the findings of the primary judge about the chain of communication of the allegation of racial abuse within Fox Sports.

46    In that regard, his Honour found:

D.4.2. Information provided to Mr Chalmers by Mr Knowles

176    During the first half of the Match, Mr Chalmers observed that Mr Knowles and the NRL ground manager were having a “heated discussion”. Rather than disturbing Mr Knowles, Mr Chalmers approached the NRL ground manager and asked him what had just happened. The ground manager responded that “Hayden’s got a problem. He has heard these kids saying some things”.

177    Mr Chalmers then approached Mr Knowles. Mr Chalmers had known Mr Knowles for at least 20 years and considered him to be “absolutely reliable”. Mr Knowles told him that some people were “yelling out at Brent with racist remarks and Brent’s not happy about it”. Mr Chalmers then asked Mr Knowles where the people who were making those remarks were and Mr Knowles pointed to a group of some five to six people sitting in the vicinity of Bay 4 and Bay 5 in the Stadium. Mr Chalmers did not hear any racist remarks being directed at Mr Naden.

D.4.3. Information provided to Mr Roach by Mr Chalmers

178    Mr Chalmers then spoke with Steve Roach, a Fox Sports side line expert commentator at the Match. Mr Chalmers told Mr Roach that he had been told by Mr Knowles that there was a “group yelling out racial things to Brent Naden” and then said to Mr Roach, “have a look at him, he doesn’t look happy at all, you know what I mean”. At about this time Mr Chalmers observed that the group of people that Mr Knowles had pointed to were moving from the vicinity of Bays 4 and 5 to the vicinity of Bays 8 and 9.

D.4.4. Directions given to Mr Gare

179    At or about 6.38 pm, Mr Chalmers asked Mr Gare to move to the bay in the Stadium that was adjacent to the bay in which the group that Mr Knowles had identified were now sitting in and to film them. Mr Chalmers’ initial reason for directing Mr Gare to film the group was not for the vision to go to air but rather so that the Fox Sports production team could “run a tape across it” and had it on record if there was any subsequent police investigation.

180    Shortly after Mr Gare had filmed the group, Mr Chalmers was advised by the NRL ground manager that the group had been ejected from the Stadium.

D.4.5. Information provided to Mr Sullivan by Mr Chalmers

181    Mr Chalmers then told Mr Sullivan via the Fox Sports communication channel that there had been “an alleged racial abuse situation” and subsequently that “the group had then been ejected”. He also told Mr Sullivan at the time that Mr Gare was filming the ejection of the applicants and the other members of the Group that “[t]hese are the blokes that the accusations are being directed at”.

D.4.6. Information provided to Ms Yates by Mr Sullivan

182    Just prior to the Fox Sports broadcast going to air, Ms Yates was informed through her earpiece by Mr Sullivan that Mr Naden had been racially abused by members of the crowd and that he was physically rattled by it. She was also told by Mr Sullivan that Fox Sports had footage of the incident and that she was to say that Fox Sports would be handing it over to the police and that Fox Sports would be following up on the incident.

183    At or about 6.58 pm, the Fox Sports broadcast was broadcast during the half time show on the Friday Night Show.

184    Ms Yates recognised from the video footage broadcast while she was speaking that the men being ejected were Warriors’ fans from the supporters’ merchandise that some of them were wearing. The evidence was inconclusive as to whether Mr Sullivan also told Ms Yates that the members of the crowd being ejected were “[e]ight men in their early twenties”. Ms Yates initially gave evidence that Mr Sullivan “would have” told her that the crowd ejected were in their early twenties because she had never seen the footage before and then agreed more definitively that he told her that. On balance, including because of the absence of any evidence from Mr Sullivan on the issue, I infer that in a similar manner to her evidence concerning her recognition of Warriors’ supporters’ merchandise worn by some members of the Group, Ms Yates was also able to observe from watching the video what may have appeared to be a number of men who looked to be in their twenties who were being ejected and their approximate age. In fact, as the videos in evidence disclose, it appears that nine, rather than eight, members of the Group were ejected.

The Fox Sports broadcast

47    The Fox Sports broadcast was televised by Fox Sports in a segment of the “Friday Night Footy” broadcast on the Fox League Channel during the half time break in the rugby game between the Panthers and the Warriors.

48    Relevantly, the broadcast included a discussion between Ms Jessica Yates and Mr Greg Alexander and the display of words and images. A transcript of the discussion, the words displayed on the screen, and a summary of the images broadcast, is set out below:

MS YATES: Unfortunately we do have to report some unacceptable behaviour at Central Coast Stadium tonight from these warriors fans. Now Brent Naden reported to a Penrith trainer that he was racially vilified by these fans and he was visibly rattled when he reported the incident. Fox League will be handing this vision over to the police and these fans have been ejected from the ground. This behaviour, absolutely unacceptable. Eight men in their early twenties racially vilifying Brent Naden tonight. There is absolutely no tolerance for this in our game.

MR ALEXANDER : No he is on the right wing Brent Naden and these blokes were obviously pretty close to him. It’s a disgrace. It really is and these clowns should never get in an NRL game again and their pictures should be up on every home ground to make sure that they don’t enter the field because if it’s true and what they’ve said well that, that’s the end of those blokes. They’ve just watched their last live game.

MS YATES : Absolutely at this point allegations that Brent Naden has been racially vilified. The police have ejected these fans and of course will be following up exactly what happened with the incident.

[words on the screen:

Fans ejected for racial abuse aimed at Brent Naden.

No tolerance.

Fox League will offer vision to police & NRL.]

[Images of the applicants be approached by police and ejected from the stands by police]

49    The italicised words attributed to Ms Yates were omitted by the primary judge from the recitation of the transcript of the Fox Sports broadcast (see J at [24]), apparently because his Honour took the extract from the pleading, not from the exhibit tendered at trial. Fox Sports contended that error was material, and that the omitted words put a different complexion on the broadcast. It contended that, viewed as a whole, the omitted words tended against the imputations, because they included a reference to “allegations” that Mr Naden had been racially abused, and that the police would be following up in the coming week “exactly what happened”. It was contended that, once those words were included, and the broadcast was viewed as a whole, the pleaded imputations were not carried because they were directed at “suspicion of guilt”, rather than “guilt”.

50    The film of the broadcast was in evidence, and was played at the hearing of the appeal.

51    Each appellant contended that the Fox Sports broadcast conveyed the following imputations, namely that each of them:

(1)    is racist;

(2)    racially vilified Mr Naden during the match on 14 August 2020;

(3)    was ejected from the match for racial abuse aimed at Mr Naden; and

(4)    so poorly conducted themselves towards Mr Naden by racially abusing him at the match that they should never be allowed into an NRL [National Rugby League] game again.

52    Unsurprisingly, Fox Sports accepted that if conveyed, the imputations were defamatory.

The Channel 9 broadcast

53    On 14 August 2020, Channel 9 broadcast the matter complained of on the Channel 9 “Wide World of Sports Friday Night Footy” program. It comprised a discussion between Ms Danika Mason and Mr Andrew Johns and the display of words and images. A transcript of the discussion, the words displayed on the screen, and a summary of the images broadcast is set out below:

PRESENTER DANIKA MASON: Thank you, Aaron. Just updating the earlier game tonight, there was an ugly incident in the match between the Panthers and the Warriors. A group of fans were ejected after allegedly racially abusing Brent Naden. Brent Naden reported the incident and the group of fans were escorted out of Central Coast Stadium by police. The NRL has responded saying they will take the strongest possible action to ensure fans guilty of racial abuse are banned from attending NRL matches and acting CEO Andrew Abdo has said he will call any player involved tonight and make sure they’re receiving the support they need. Joe, this is disgusting behaviour. How disappointing is it that it still happens.

PRESENTER ANDREW JOHNS: It’s just not acceptable. We saw in the AFL what happened - what it done [sic] to Adam Goodes. It nearly destroyed Adam Goodes. It’s just not acceptable. We don’t want these sort of people in the NRL and if they’re found guilty, they should be banned for life.

[words on the screen:

Panthers win marred with by alleged racial abuse towards Brent Naden.]

[Images of the applicants being approached by police and ejected from the stands by police]

54    The film of the broadcast was in evidence, and was played at the hearing of the appeal.

55    Each appellant contended that the Channel 9 broadcast conveyed the following imputations, namely that each of them:

(1)    is racist;

(2)    racially abused Mr Naden during the match on 14 August 2020;

(3)    was ejected by police from the stadium during the match because of his racist remarks towards Mr Naden; and

(4)    so conducted himself in racially abusing Mr Naden at the match that they should be banned for life from attending NRL matches.

The imputation findings of the primary judge

Fox Sports imputations

56    The primary judge found that the second to fourth imputations pleaded against Fox Sports were made out for the following reasons:

33    The second to fourth imputations alleged to have been conveyed by the Fox Sports broadcast are directed at the racist conduct of the applicants, rather than the issue of whether each applicant is racist.

34    I am satisfied that each of the second to fourth imputations was conveyed by the Fox Sports broadcast. The overall impression created in the minds of the ordinary reasonable viewer by the Fox Sports broadcast was that the applicants had been ejected from the Stadium for racially abusing Mr Naden and they should never be permitted to attend any future NRL games.

35    The Fox Sports broadcast, contrary to the respondents’ submissions, was almost exclusively directed at guilt not suspicion of guilt. The tone and language of the Fox Sports broadcast was inherently judgmental, unequivocal and emotive as highlighted by the phrases “[u]nfortunately we have to report”, “unacceptable behaviour”, “[t]his behaviour, absolutely unacceptable”, “there is absolutely no tolerance”, “[i]t’s a disgrace”, “these clowns should never get in an NRL game again”, “their pictures should be up on every home ground to make sure they don’t enter the field” and “[t]hey’ve just watched their last live game”. These phrases were then reinforced by images of New South Wales police officers ejecting them from the Stadium and the words prominently displayed on the visual feed, “Fans ejected for racial abuse aimed at Brent Naden” and “No tolerance”.

36    In that context, the inclusion of statements that Mr Naden had reported the racial vilification to a Panthers trainer, that “Fox League” would be handing the vision over to the police, and the addition of “because if it’s true” before the comment “that’s the end of those blokes” cannot undo or materially detract from the overall impression created by the Fox Sports broadcast. Nor can the live broadcast of what was presented as a “breaking news story” relevantly diminish the overall impression of guilt created in the minds of the ordinary reasonable viewer by the Fox Sports broadcast.

57    His Honour then turned to consider whether the Fox Sports broadcast also conveyed an imputation that each applicant was racist. After referring in some detail to the reasons of Bromwich J in Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004, the primary judge concluded:

42    I am satisfied that the imputation that each of the applicants is racist is conveyed by the Fox Sports broadcast. I am satisfied that an ordinary reasonable viewer would perceive that a person is racist upon learning that they had engaged in racial vilification of an Indigenous Australian NRL player and had been ejected from a match by police officers for engaging in racial abuse. The ejection of the applicants by the police for racial vilification and racial abuse is sufficient for that conduct to be construed as “extensive, serious or risky” that it would lead an ordinary reasonable viewer to conclude that only a person who is racist would engage in that conduct, and thus infer that the applicants are racist. Engaging in racial vilification and racial abuse sufficient to give rise to a compulsory removal from an NRL match inherently speaks to a person’s character and is sufficient to convey to the ordinary reasonable viewer that a person ejected for racial vilification and racial abuse is racist.

Channel 9 imputations

58    The primary judge found that the imputations pleaded against Channel 9 were not made out for the following reasons:

57    I am satisfied that considered as a whole, the Channel 9 broadcast would create in the mind of the ordinary reasonable viewer an impression of a suspicion of racial abuse, rather than guilt of racial abuse. Some statements made by Ms Mason and Mr Johns were unequivocal, such as “there was an ugly incident” and “[i]t’s just not acceptable”. Those statements, however, have to be viewed in the context of the whole of the Channel 9 broadcast, in particular, the “alleged” or “allegedly” qualifications to each of the references to racial abuse and the “if they’re found guilty” qualification to the statement by Mr Johns that “they should be banned for life”.

58    Moreover, unlike the Fox Sports broadcast, the words appearing on the screen during the broadcast were “Panthers win marred by alleged racial abuse towards Brent Naden” (emphasis added), rather than “No tolerance” and “Fans ejected for racial abuse aimed at Brent Naden”.

59    The Channel 9 broadcast may well have conveyed imputations that each of the applicants was suspected to have made racist remarks towards Mr Naden and even that Mr Naden had reported that the applicants had made racist remarks, but these imputations are materially different and less serious than the pleaded imputations.

60    For the foregoing reasons, the applicants’ claims against Channel 9 with respect to the Channel 9 broadcast must be dismissed. None of the pleaded imputations was conveyed by the Channel 9 broadcast.

consideration of pleaded imputations

Applicable principles

59    The parties agreed that this is a case where the Court exercising appellate jurisdiction is in as good a position as the trial court to arrive at the correct result.

60    The principles applicable to the consideration of pleaded imputations were not in dispute.

61    The appellants bear the onus of proving, on the balance of probabilities, that the alleged defamatory imputations were conveyed. That is a question of fact.

62    The Court is required to determine the meaning of the impugned publications objectively, by reference to the standards of the hypothetical ordinary reasonable reader, the ordinary reasonable listener or viewer, as the case may be. Here we are, of course, concerned with the ordinary reasonable viewer, who (like a reader or a listener) is taken to be (a) of fair, average intelligence, experience and education; (b) fair-minded; (c) neither perverse, morbid nor suspicious of mind, nor avid for scandal; (d) a person who does not live in an ivory tower, but can and does read between the lines in light of general knowledge and experience of worldly affairs; (e) a person who does not search for strained or forced meanings; and (f) a person who reads the entire matter complained of and considers the context as a whole. See, by way of example only, Hanson v Burston [2023] FCAFC 124; (2023) 413 ALR 299 at 308 [44] (Wigney, Wheelahan and Abraham JJ).

63    The Court must arrive at a single objective meaning, being that which an objective audience composed of ordinary decent persons should have collectively understood the matter to bear. The manner in which the publication was actually understood, and the publisher’s intended meaning, is irrelevant to the question of meaning. See, eg, Lee v Wilson [1934] HCA 60; 51 CLR 276 at 288 (Dixon J); Australian Broadcasting Corp v Chau Chak Wing [2019] FCAFC 125; 271 FCR 632 at 646–647 [32]–[33] (Besanko, Bromwich and Wheelahan JJ); Hanson at 309 [46] (Wigney, Wheelahan and Abraham JJ).

64    The cases sometimes refer to television or radio broadcasts of interviews and the like (such as social media posts) as “casual mediums”, and that in determining whether the pleaded imputation is carried regard must be had to the impressionistic nature of them, where the viewer or the listener watches or listens and then “moves on”.

65    The task does not involve parsing the publications for a theoretically or logically deducible meaning. Over analysis is thus to be eschewed in favour of an impressionistic approach having regard to the whole of the relevant publication and any relevant context, such as matters of ordinary general knowledge and matters that were put before the viewer or listener. See, for example, Bazzi v Dutton [2022] FCAFC 84; 289 FCR 1 at 9 [29] (Rares and Rangiah JJ) quoting the judgment of Lord Kerr JSC in Stocker v Stocker [2020] AC 593 at 605–6 [41]–[43]. In this case it was accepted, for example, that both Mr Alexander and Mr Johns were former rugby players of considerable renown, and that the ordinary viewer would be taken to know that.

66    It is also to be assumed that the ordinary viewer or listener is likely to have watched or listened to such a publication only once, without pausing or going back over it. See V’landys v Australian Broadcasting Corp [2023] FCAFC 80; 426 ALR 722 at 746 [73] (Rares J, with whom Katzmann and O’Callaghan JJ agreed); Chau v Australian Broadcasting Corp (No 3) [2021] FCA 44; 386 ALR 36 at 46 [35] (Rares J).

Consideration

67    Each of us has watched both the Fox Sports and Channel 9 broadcasts, in court and in chambers.

68    Taking each in turn.

Channel 9

69    The Channel 9 publication commences with Ms Mason providing viewers with an update of “an ugly incident in the match between the Panthers and the Warriors”, which she said resulted in a group of fans being ejected after allegedly racially abusing Mr Naden – who reported the [ugly] incident. She then said that the group of fans were “escorted out … by police”. Ms Mason continued by reporting the NRL’s response – namely, that it “will take the strongest possible action to ensure fans guilty of racial abuse are banned”. She then described the behaviour of the ejected group as “disgusting” and said that she was disappointed that “it” – which can only be understood as a reference to the racial abuse engaged in by the appellants – “still happens”.

70    Mr Johns then intervened and said “[i]t’s” – which can only be understood as a reference to “the disgusting racial abuse” engaged in by the appellants – “just not acceptable”. And “it” – again that can only be a reference to that disgusting racial abuse – “nearly destroyed Adam Goodes”. (Mr Goodes, a champion Indigenous Australian AFL player for the Sydney Swans, was the victim of racial abuse at the hands of crowd members for a very long period of time during the second decade of this century, something that the ordinary reasonable viewer would be taken to know). And then Mr Johns continued, asserting that “[w]e don’t want these sort of people in the NRL” – which the ordinary reasonable viewer would understand to mean that the NRL, on whose behalf Mr Alexander could reasonably be thought to speak, does not want the sort of supporters like the appellants, who racially abuse players the way AFL supporters used to racially abuse Mr Goodes.

71    It is true that buried within all that is the word “allegedly” in the second sentence of Ms Mason’s remarks. And Mr Johns adds “if they’re found guilty, they should be banned for life”. And the words on the screen refer to “alleged” racial abuse. But in light of what both Ms Mason and Mr Johns otherwise say, in our view the ordinary reasonable viewer would be left with the overall impression that the appellants had in fact engaged in racial abuse; that they were ejected as a consequence; and that they should be banned from attending NRL games for life. In our respectful view, the learned primary judge erred in concluding to the contrary.

72    We were taken to some cases that make observations about the use of words like “allegedly”, but they are of little assistance here. Each case will turn on its own facts, and the use of such “qualifiers” may in some cases operate to convey an impression that the published matter does no more than record that an allegation has been made, or a “mere” suspicion. But not in this case, as we have endeavoured to explain.

Fox Sports

73    As to the Fox Sports broadcast, in our view the primary judge correctly found that the pleaded imputations were conveyed, for the detailed reasons he gave at J [33]-[42].

74    The only substantive criticism that Fox Sports levelled against his Honour’s reasons were that he overlooked the italicised words of the transcript of the broadcast set out at [48] above, namely the words “allegations that Brent Naden has been racially vilified. The police have ejected these fans and of course will be following up exactly what happened with the incident”. But those words, in our view, do not operate to dispel the overall impression conveyed by the broadcast as a whole. And the omission of the words from his Honour’s consideration of the imputations was immaterial. In any event, however, as we explain below, we are of the view that his Honour was correct in accepting Fox Sports’ honest opinion defence, so it is unnecessary further to consider the reasons of the primary judge concerning the imputations found to be conveyed.

the fox sports honest opinion defence

Fox Sports’ pleaded defence

75    By its defence to the further amended statement of claim, Fox Sports pleaded a defence under s 31(2) of the Defamation Act as follows:

HONEST OPINION: s 31(2) of the Defamation Act 2005 (NSW)

30.    Further or in the alternative, insofar as and to the extent that it may be found that the Matters Complained Of were defamatory of the Applicants and/or carried any of the Applicants’ Imputations – which for the avoidance of doubt is denied, the Respondents say that:

(a)    the Matters Complained Of consisted of expressions of the opinion of employees or agents of the Respondents;

(b)    the opinion related to matters of public interest; and (c)    the opinion was based on proper material and on no other material, or alternatively was based on material which was to some extent proper material and was an opinion such as might reasonably be based on such of the material as was proper material.

Particulars

(i)    The opinions were the opinions of the presenters of each of the Matters Complained Of, who were employees or agents of the Respondent or Respondents who published the relevant Matter Complained Of.

(ii)    The Matters Complained Of related to the Subjects, each of which was a matter of public interest.

(iii)    The expressions of opinion were based on the following material that was set out in specific or general terms in the Matters Complained Of:

a. the Reports;

b. the images and footage of the Actions; and

c. the Statement.

(iv)    The Reports were published on an occasion of qualified privilege at common law, in that Naden had a duty or interest to report allegations of racial abuse to a match official, and the match official had a corresponding duty or interest to receive those allegations.

(v)    The Actions were matters of substantial truth, in that match officials, representatives of the NRL and police acted in response to the Reports by evicting the group of spectators, including the Applicants, from the ground.

(vi)    The Statement was made on an occasion of qualified privilege under section 30 of the Defamation Act 2005 (NSW), in that, in light of the Reports and the Actions, it was reasonable in all the circumstances for the NRL, by its Acting CEO, to make the Statement.

76    As Leeming JA said in Massoud v Nationwide News Pty Ltd [2022] NSWCA 150; 109 NSWLR 468 at 516 [170]:

Of course, the point of the defence of honest opinion is that it is a defence for what would otherwise be actionable defamation. It is an aspect of the balance struck by the law to the effect that sometimes unjustified comment which injures a plaintiff’s reputation may be made without liability. When relying on this defence, the defendant needs to establish that the defamatory matter is an opinion, based on proper material, in the public interest, and even if all those are established the defence will not be available if the plaintiff establishes that the opinion was not honestly held.

77    At the relevant time in this case, the defence of honest opinion in s 31 of the Defamation Act relevantly provided:

31     Defences of honest opinion

    …

(2)    It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and

(b)    the opinion related to a matter of public interest, and

(c)    the opinion is based on proper material.

…

(4)    A defence established under this section is defeated if, and only if, the plaintiff proves that—

(a)    …

(b)    in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or

(c)    …

(5)    For the purposes of this section, an opinion is based on proper material if it is based on material that—

(a)    is substantially true, or

(b)    was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or

(c)    …

(6)    An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

78    Section 4 of the Defamation Act relevantly defined “matter” to include “a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication”.

79    The appellants’ principal submission was that the primary judge erred because he should have found that the relevant matters contained in the Fox Sports broadcast the subject of the defence were matters of fact, not opinion, and therefore not covered by the defence.

80    It was also submitted that his Honour erred because:

(1)    there was no finding that Ms Yates or Mr Alexander were “employees or agents” of Fox Sports as required by s 31(2)(a);

(2)    the issue of public interest was not “dealt with adequately”; and

(3)    to the extent that there was any comment, it was not based on proper material.

81    The first point can be dealt with immediately. There is no merit in it. Ms Yates gave unchallenged evidence that she was a television presenter for Fox Sports and that she had been in that role for 17 years. And Mr Alexander gave unchallenged evidence that he had been a Rugby League commentator at Fox Sports for 22 years. And the primary judge found (at J [165]) that both of them were members of the Fox Sports commentary team located at the Fox Sports studio in Artarmon (in New South Wales). That evidence and that finding is sufficient. But in any event, the issue whether what was said by Ms Yates and Mr Alexander was said in their capacity as an employee or agent of Fox Sports was not raised by the appellants below, presumably because it was accepted that they obviously were one or the other. So we need say no more about it.

82    We will deal briefly with the uncontroversial principles applicable to the other issues raised on appeal.

Fact or opinion?

83    As Lee J said in Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; 387 ALR 123 at 152 [128]-[131]:

[128]    There is no definition in the Act as to what constitutes an opinion and it was common ground that the approach to distinguishing between an expression of opinion and a statement of fact is a question of characterisation which turns on whether the ordinary, reasonable reader would understand that a statement of fact was being made, or that an opinion was being offered: see [Channel Seven Adelaide v] Manock [(2007) 232 CLR 245 264] (at [36] per Gummow, Hayne and Heydon JJ, with whom Gleeson CJ agreed). An opinion is something which can be characterised as a conclusion, a judgment or observation of some kind: see, eg, John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81-789; [2005] NSWCA 164 (at [25] per Giles JA, quoting Gatley on Libel and Slander (at [12.6]) (Wildy & Sons Ltd, 10th ed, 2004).

[129]    At the extremes the task is easy, but like many processes of characterisation, it can be difficult at the margins.

[130]    It is also important to bear in mind that the statutory defence requires that it is the matter that was an expression of opinion, not the imputation or imputations conveyed — in contrast to the defences contained in s 25 (justification) and s 26 (contextual truth). Although the significance of the defamatory matter lies in its meaning, the pleaded meanings, although relevant, cannot be determinative of the necessarily contextual characterisation inquiry as to whether a statement is opinion. Put another way, although the pleaded meaning is not to be the sole focus, given that the critical question is whether the defamatory sense of the matter was conveyed as an expression of opinion rather than an assertion of fact, it is necessary that the inquiry is conducted, as McCallum J said in Feldman (at [43]) “through the lens of the defamatory meaning held to have been conveyed”.

[131]    It seems to me that if one is faithful to the text of the Act, the correct approach can be stated quite simply: to determine whether the matter would have been understood by the ordinary reasonable reader to be an expression of opinion rather than a statement of fact; and although this contextual inquiry necessarily requires consideration of the meanings found to be conveyed, it is not constrained or dictated by their terms so as to transform the inquiry into a consideration as to how each imputation would be understood.

84    In Channel Seven Adelaide v Manock [2007] HCA 60; 232 CLR 245 at 263-264 [35], Gummow, Hayne and Heydon JJ said this on the topic of distinguishing fact and comment:

[35] …

A “discussion or comment” is to be distinguished from “the statement of a fact” [citing Popham v Pickburn (1862) 7 H & N 891 at 898 [158 ER 730 at 733] per Wilde B]. “It is not the mere form of words used that determines whether it is comment or not; a most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated.” [citing Cole v Operative Plasterers’ Federation of Australia (NSW Branch) (1927) 28 SR (NSW) 62 at 67 per Ferguson J (Street CJ and Gordon J concurring)]. … [T]he distinction between fact and comment is commonly expressed as equivalent to that between fact and opinion [citations omitted]. [In Clarke v Norton [1910] VLR 494 at 499] Cussen J described the primary meaning of “comment” as “something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, observation, etc”. It follows that a comment can be made by stating a value judgment, and can also be made by stating a fact if it is a deduction from other facts. Thus, in the words of Field J [in O’Brien v Marquis of Salisbury (1889) 6 TLR 133 at 137]:

‘[C]omment may sometimes consist in the statement of a fact, and may be held to be comment if the fact so stated appears to be a deduction or conclusion come to by the speaker from other facts stated or referred to by him, or in the common knowledge of the person speaking and those to whom the words are addressed and from which his conclusion may be reasonably inferred. If a statement in words of a fact stands by itself naked, without reference, either expressed or understood, to other antecedent or surrounding circumstances notorious to the speaker and to those to whom the words are addressed, there would be little, if any, room for the inference that it was understood otherwise than as a bare statement of fact’.

85    Their Honours also observed that “it is harder for a viewer of television to distinguish fact and comment than it is for a person reading printed material” and quoted the following passage from the judgment of Blackburn CJ in Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 at 40:

It is obvious that a television viewer receives a succession of spoken words and visual images, which he is unable to have repeated for the purpose of reflection or clarification; whereas a reader of printed material normally has it all before him at will, and has unlimited facilities for re-reading. In my opinion it is important in the case before me, when considering whether there is material which can be perceived to be comment, as distinct from fact, but based upon stated fact, to remember that the viewer sees and hears the material simultaneously, and only once.

86    Further, comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment. See Channel Seven Adelaide at [41] (Gummow, Hayne and Heydon JJ, with whom Gleeson CJ agreed) and Massoud at 524 [209] (Leeming JA).

Public interest

87    The term “public interest” is not defined in the Defamation Act, so resort is to be had to the common law. In Bellino v Australian Broadcasting Corporation [1996] HCA 47; 185 CLR 183 at 215, Dawson, McHugh and Gummow JJ said that “a subject of public interest mean[s] the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially [invite] public criticism or discussion”.

Proper material

88    As we have set out above, s 31(5) provides that an opinion is based on proper material if it is based on material that is substantially true or was published on an occasion of qualified privilege (whether under the Defamation Act or at general law). And s 31(6) provides that an opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

89    As Simpson AJA said in Wraydeh v Fairfax Media Publications Pty Ltd [2021] NSWCA 153; 105 NSWLR 254 at 262 [37]:

37    It is a rare discussion of the defence of qualified privilege at common law that does not begin with the foundational passage from the statement of Parke B in Toogood v Spyring (1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1049–1050, as follows:

“In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.” (Emphasis added by Simpson AJA).

90    Her Honour continued at 263 [39]-[40] as follows:

39    A successful defence of qualified privilege at common law depends upon satisfaction of three conditions, as stated by Heydon J in Aktas [v Westpac Banking Corporation (2010) 241 CLR 7] at [55] (in dissent on the application of the principles):

•    that the communication was published on a privileged occasion;

•    that the communication was related to the occasion; and

•    that there was no malice in the publication.

The defence will be established by satisfaction of the first and second of these, the onus of proving which lies on the defendant, but will be defeated if the plaintiff proves that publication of the communication was actuated by malice.

40    A modern formulation of the defence can be found in the joint judgment of French CJ, Gummow and Hayne JJ in the same case at [14]. Their Honours said:

“[14] … As a general proposition, the common law protects the publication of defamatory matter made on an occasion where one person has a duty or interest to make the publication and the recipient has a corresponding duty or interest to receive it; but the privilege depends upon the absence of malice.” (Footnote omitted)

91    Further, as Campbell JA said in Bennette v Cohen [2009] NSWCA 60 at [207] and [209]:

207    However one does not enquire whether the particular statement that was defamatory was made in circumstances such that the reciprocal interest of the maker and recipient of the statement was such that the making of that statement itself advanced the welfare of society and the public interest. Rather, the requirement of public interest, for the existence of qualified privilege operates at a higher level of generality, that the duty or interest of both maker and recipient is such that it is in the public interest that a person should be free to make that type of statement in the type of circumstances where the particular statement in question was made.

…

209    The case law … bears out that it is by reference to the type of communication involved in the defamatory utterance, rather than the particular defamatory utterance itself, that the public interest is to be gauged. In Toogood v Spyring Parke B said … :

… such communications are protected for the common convenience and welfare of society … (emphasis added by Campbell JA)

Reasons of primary judge with respect to the honest opinion defence under s 31(2)

92    Having set out the text of the broadcast (with the words omitted at the end referred to earlier) and having referred to some of the relevant legal principles, his Honour upheld the Fox Sports honest opinion defence, for the reasons set out below. (His Honour had earlier defined “the Naden Reports” to mean the reports of racial abuse by Mr Naden.)

237    I am satisfied both textually and the tone in which they were made, that the statements made by Ms Yates in the Fox Sports broadcast that the behaviour of the fans was “unacceptable”, and “absolutely unacceptable” and there is “no tolerance” for it in “our game” were opinions of Ms Yates. I am also satisfied both textually and the tone in which they were made that the statements made by Mr Alexander in the broadcast that the behaviour of the fans was a “disgrace”, the description of the fans as “clowns”, “their pictures should be up on every home ground to make sure that they don’t enter the field”, “that’s the end of these blokes” and “they’ve just watched their last live game” were opinions of Mr Alexander.

238    Further, I am satisfied that these opinions of Ms Yates and Mr Alexander in response to Mr Naden’s reports of racial abuse were opinions that each genuinely held and were made in response to Mr Naden’s reports of racial abuse. Both gave evidence to that effect and that evidence was not challenged.

239    I am also satisfied, as I concluded at [202]-[204] above, that the Subjects that Fox Sports relied upon for its qualified privilege defence were matters of public interest and that the expressions of opinion by Ms Yates and Mr Alexander were based on the Naden Reports and the images and footage of the Actions …

240    Equally, I am satisfied that the Naden Reports were published on an occasion of qualified privilege at common law. Mr Naden had at least an interest to report allegations of racial vilification to Mr Knowles, and Mr Knowles, as the trainer of the NRL team for whom Mr Naden played, had a corresponding duty or interest to receive those allegations. In turn Mr Knowles had a duty or interest to disclose to Fox Sports, namely Mr Chalmers, the reports made by Mr Naden. Mr Knowles had a private duty to his employer, the Panthers, to pass on the reports and a public duty to pass on the reports of racial vilification to Fox Sports as the live broadcaster of the Match. In turn, Fox Sports as a public broadcaster had a corresponding duty or interest to receive that information given its role in broadcasting live sporting events and wider community concerns with racism. The dissemination of the reports of racial vilification initially to Mr Chalmers, then Mr Sullivan and ultimately to Ms Yates were sufficiently proximate to the original disclosure to Mr Knowles, notwithstanding that Mr Sullivan did not refer to the racial vilification as “alleged”. The critical issue in this context is the report of racial vilification, the report itself was not “alleged”, rather the vilification the subject of the report was alleged.

241    Further, I am satisfied that a report made by an NRL player that he had been racially vilified by spectators in a game is sufficient to support the opinions expressed by Ms Yates and Mr Alexander. I do not accept, contrary to the applicants’ submissions, that it would also be necessary to disclose more specific information, such as the making of the Rolling Sound, before a defence of honest opinion could be established. The concept of racial vilification is sufficiently generally understood for the ordinary reasonable viewer to recognise that the opinions expressed by Ms Yates and Mr Alexander were directed at the reports of racial vilification.

242    Moreover, the submission that Fox Sports could not have any reason to believe the opinions expressed by Ms Yates and Mr Alexander were genuine opinions held by them as they were relying entirely on Mr Sullivan and had made no independent assessment cannot be accepted. The submission fails to grapple with the inherent and self-evident vice of racial vilification. It could readily be accepted that a sports presenter advised of a report of racial vilification in the course of a live half-time broadcast would honestly and genuinely hold similar opinions to those expressed by Ms Yates and Mr Alexander. In context, any suggestion that Ms Yates and Mr Alexander were under any obligation in the course of a live broadcast to undertake an independent assessment before expressing any opinions on reports made by an NRL player that he had been racially vilified in a game is misconceived.

243    I am also satisfied that the Actions were matters of substantial truth in that the police and NRL ground officials ejected the applicants and other members of the Group in response to the reports of racial abuse made by Mr Naden to Mr Knowles and Mr Catterick.

244    For the foregoing reasons, I have concluded that Fox Sports has established its defence of honest opinion with respect to the Fox Sports broadcast.

245    The claims made by the applicants against Fox Sports with respect to the Fox Sports broadcast must be dismissed.

Consideration

Fact or opinion

93    In our view, the primary judge was correct to conclude that the statements made by the Fox Sports commentators in the broadcast constituted their opinions rather than statements of fact, having regard to their text and tone. (We note that the appellants did not challenge below or on appeal that the opinions expressed by Ms Yates and Mr Alexander were genuinely held and were in response to Mr Naden’s reports of racial abuse. See J at [238]).

94    In our view, the statements made by Mr Yates and Mr Alexander:

•    “This behaviour absolutely unacceptable. Eight men in their early twenties racially vilifying Brent Naden tonight. There is absolutely no tolerance for this in our game”, and

•    “It’s a disgrace. It really is and these clowns should never get in an NRL game again and their pictures should be up on every home ground to make sure that they don’t enter the field because it it’s true and what they’ve said well that, that’s the end of these blokes. They’ve just watched their last live game”,

are properly to be characterised as criticisms, judgments or observations (to pick up the words used by Cussen J in Clarke v Norton quoted in Manock at [85] above), and are thus statements of opinion within the meaning of s 31(2) of the Defamation Act.

95    In saying what they did, Ms Yates and Mr Alexander were each characterising the conduct the subject of the reports they had received about the appellants identified in the Fox Sports broadcast.

96    The tone of their comments was one of outrage and disgust, as is apparent to some extent from the words of the transcript. That would in our view add to the ordinary viewer’s impression, and recognising that they would only see the broadcast once, that they were the evaluative judgments or conclusions of the individual commentators.

97    Fox Sports submitted that “the half-time discussion panel format in which the statements were made … would have further reinforced in the mind of the viewer that they were expressing their opinions on the reported conduct of the appellants”, and there is some force in that point too.

Public interest

98    It was submitted by the appellants that the issue of public interest “was not dealt with adequately”.

99    There is no substance to that point. Counsel for the appellants below in closing oral address conceded that “the issue of racism in sport is a matter of significant public interest in this country” (Tr at 610.16-23), and in our view the primary judge correctly concluded that the subject of the Fox Sports broadcast was a matter of legitimate and important public interest (J [202], [203] and [239]).

Proper material

100    In our view, as the primary judge found, a report made by an NRL player that he had been racially vilified by spectators in a game was proper material to support the opinions expressed by Ms Yates and Mr Alexander and was published on an occasion of qualified privilege, for the reasons explained by the primary judge, in particular at J [240].

101    The only challenge to that part of his Honour’s reasons was made by senior counsel for the appellants in his oral address, by reference to the following passage from the decision of the High Court in Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; 178 CLR 309 at 325:

So if, at common law, the facts are truly stated, they constitute a proper basis for [lawful] comment. And if, at common law, the publication of defamatory facts is privileged, at least if the publication is the subject of absolute privilege, the publication of the facts is lawful in the sense that it is not actionable and will provide a proper basis for comment [citing Wason v. Walter; Mangena v. Wright, [1909J 2 K.B., at p. 977, per Phillimore J.; Thompson v. Truth & Sportsman Ltd. [No. I] (1929), 31 S.R (N.S.W.) 129; Thompson v. Truth & Sportsman Ltd. [No. 4] (1930), 31 S.R (N.S.W.), at p. 300; affd by the Privy Council (1932) 34 S.R (N.S.W.) 21; Grech v. Odhams Press Ltd., [1958] 2 Q.B., at p. 285; and see the discussion of the cases in Orr v.Isles (1965), 83 W.N. (Pt 1) (N.S.W.), at pp. 308-311, per Walsh J.; and in Brent Walker Group Pic. v. Time Out Ltd., [1991J 2 Q.B., at pp. 40-45, per Bingham LJ.] In England, therefore, the Court of Appeal has held that, where the facts and matters relied upon to support a comment were based on a statement previously made on a privileged occasion, a defendant publisher, in order to sustain the defence of fair comment, had to meet the additional requirement ordinarily incumbent on a publisher reporting a statement made on a privileged occasion of showing that his or her report of it was fair and accurate [citing Brent Walker Group Pic. v. Time Out Ltd., [1991] 2 Q.B., at p. 45].

(Emphasis added.)

102    It was contended that the emphasised part of that passage meant that the finding by the primary judge that the chain of reports from one person to another, each with a duty to pass it on, accurately described at J [240], was a sufficient report of the “Naden Reports” (that Mr Naden had been racially abused) was wrong, because as senior counsel put it in his oral address:

(1)    “it’s only a fair report of court proceedings, parliamentary proceedings, or other similar matters that come within that form of qualified privilege”; and

(2)    “there isn’t a defence that if you refer to a statement made by somebody else under qualified privilege, and you make a fair and accurate report of it, that you yourself have a defence of qualified privilege”.

103    We do not agree. Under s 31(5), an opinion may be based in proper material if it is either substantially true or was published on an occasion of qualified privilege. There is nothing in the language of s 31 to suggest that the defence of qualified privilege under the Defamation Act is limited to a fair report of court or parliamentary proceedings or that it does not apply to a chain of reports, from one person to another, each with a relevant duty either to make the communication, or receive or pass it on (“it” being in this case reported allegations of racial vilification).

104    As Lord Atkinson said in Adam v Ward [1917] AC 309 at 334 (cited by Brennan J in Stephens v West Australian Newspapers [1994] HCA 45; 182 CLR 211 at 239-240):

It was not disputed ... that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.

105    It follows that the primary judge was correct to conclude that Fox Sports made out the defence of honest opinion under s 31(2) of the Defamation Act.

106    The appeal against his Honour’s orders in respect of Fox Sports is therefore to be dismissed.

section 10 of the defamation act

107    As we said earlier, Mr Thurston died after the primary judge delivered judgment.

108    Section 10 of the Defamation Act provides:

10 No cause of action for defamation of, or against, deceased persons

(1)     A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to—

(a)     the publication of defamatory matter about a deceased person (whether published before or after his or her death), or

(b)     the publication of defamatory matter by a person who has died since publishing the matter.

(2)     Subsection (1) does not prevent a court, if it considers it in the interests of justice to do so, from determining the question of costs for proceedings discontinued because of the subsection.

109    Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; 292 FCR 336 at 393 [208] records that the publishers, HarperCollins, challenged the maintenance of an appeal by Mr Herron against final orders dismissing his defamation action and ordering him to pay its costs, in circumstances where Mr Herron had died shortly after his solicitors had filed a notice of appeal against those orders. At the trial, the other applicant, Dr Gill, gave an undertaking that he would pay the costs of the proceeding. The Full Court allowed the appeal; set aside the orders of the trial judge; and ordered a retrial of Dr Gill’s defamation claim. Before the Full Court, Dr Gill challenged his liability under his costs undertaking in respect of Mr Herron’s proceeding. HarperCollins in turn challenged the maintenance of any appeal against final orders below insofar as Mr Herron was concerned on the basis of s 10 of the Defamation Act.

110    The Court (Rares J, Wigney, and Lee JJ agreeing) held that despite Mr Herron’s death, s 10 did not prevent Dr Gill contesting on the appeal any liability that he would otherwise have had pursuant to the undertaking he gave to pay Mr Herron’s costs of the unsuccessful proceeding below.

111    Justice Rares reasoned as follows:

[208]    The purpose of s 10 is to reflect the common law rule that a personal action dies with the person whether he or she is a plaintiff or defendant. This rule is embodied in the Latin maxim actio personalis moritur cum persona: see Woolworths Ltd v Crotty (1942) 66 CLR 603 at 611-612 per Latham CJ; see too at 620 per Rich J and at 622 per McTiernan J. However, as Latham CJ explained (at 613-615), the common law recognised exceptions. For example, if a wrongdoer obtained property of the deceased, the executor could sue in detinue, ejectment or for money had and received (indebtitatus assumpsit) for pecuniary profits derived from the misappropriation. Moreover, the common law rule did not apply to actions in contract, although the remedy in damages for a person’s death that results from a breach of contract may be affected.

[209]    In Ryan v Davies Bros Ltd (1921) 29 CLR 527 at 532, Knox CJ, Higgins and Starke JJ observed: “As a general rule the death of a party pending appeal does not destroy and end the appeal”. Their Honours held this rule also applied in a libel action in which the deceased plaintiff had filed an appeal against the verdict of the jury and an order that he pay the defendant publisher’s costs. They held (at 533):

The right of action for the original wrong has merged in the judgment, and a new, higher and different obligation has been created. by the judgment (King v. Hoare (3 M & W 494 at 504)). The right under the judgment has never been treated as an actio personalis or a right of action based upon the original wrong. The right to enforce the judgment survives to the personal representative of the deceased (Williams on Executors, 9th ed., vol. II., p. 1614; Whitacres v. Onsley (Dyer 322); Farrands v. Melbourne Corporation ((1909) VLR 531; 31 ALT 78)), and also the right to maintain that judgment to a Court of final appeal (see Carr v. Rischer (119 NY 117); Lewis v. St. Louis and Iron Mountain Railroad Co. (21 Am Rep 385)). The obligation upon the judgment is thus at once beyond the limits of the doctrine expressed in the maxim already referred to, because according to that doctrine the right of action is put an end to by the death of either party. If the obligation on the judgment survives for the benefit of the representative of the plaintiff, the burden of discharging that obligation falls upon the defendant and his representative. And the defendant and his representative must have the right of attacking and destroying the judgment by appeal or other legal process.

(Emphasis in original.)

112    The decision in Ryan v Davies Bros Ltd [1921] HCA 53; 29 CLR 527 to which Rares J referred was a libel case in which the plaintiff had died after he gave notice of appeal against the verdict of the jury in the Supreme Court of Victoria that he recover nothing against the defendant publisher, and the order that he pay its costs. Before the hearing of the appeal, his executor was substituted as the appellant, and the Court held that the deceased’s obligation to pay the costs of his unsuccessful proceeding survived, for the reasons set out above in the passages quoted by Rares J in HarperCollins.

113    It was for that reason that the Full Court in HarperCollins held that s 10 did not prevent Dr Gill contesting on appeal any liability that he would otherwise have had to pay Mr Herron’s costs.

114    In this case, Channel 9 (and Fox Sports) agreed that if the first appellant’s appeal were to be allowed the costs order below could and should be set aside and that he should have the costs of the appeal. In our view, that concession was properly made consistently with the authorities.

115    But as the High Court made clear in Ryan at p 534, the original cause of action in defamation was merged in the (adverse) judgment below and it is not revived if the appeal succeeds. As their Honours said:

But, says the defendant, even if the verdict and judgment be erroneous, still the original cause of action cannot be restored by reversal of the judgment nor can a new trial be had. The plaintiff is dead; and, if his original cause of action cannot be treated as merged in a judgment which is reversed, then that original cause of action must necessarily have ended also with the death of the plaintiff, and cannot survive to his representative. All this is true and may be admitted.

116    Properly understood, in our view, s 10 is a reflection of that common law position.

117    Counsel for the first appellant contended that if s 10 is so construed (that is, it prevents a Full Court from awarding damages on the bringing of a successful defamation appeal if the applicant has died), that means that there is an inconsistency between s 10 and s 28 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), and that to the extent of such inconsistency, s 10 and its equivalent in other jurisdictions are invalid pursuant to s 109 of the Constitution.

118    Section 28 of the Federal Court Act relevantly provides:

28 Form of judgment on appeal

(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:

(a)    affirm, reverse or vary the judgment appealed from;

(b)    give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;

(c)    set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;

119    There is no merit in the inconsistency contention.

120    First, s 28 of the Federal Court Act is a “modal” provision. See Kovac v R (1977) 15 ALR 637 at 643. That is to say, it sets out the methods in which the court may treat an appeal and the courses open to the court on appeal, and is to be contrasted with s 24, which is a substantive section conferring jurisdiction upon the Court to hear and determine appeals from judgments of the Court constituted by a single judge. See Howitt-Steven v Unisuper Ltd [2022] FCAFC 272; 193 ALR 207 at 225 [56] (Madgwick J dissenting, but not on that point).

121    Secondly, the provision is cast in the language of discretion (“the Court may…”).

122    In our view, the provisions do not therefore give rise to any relevant inconsistency because s 10 does not “alter, impair or detract” from the operation of s 28 of the Federal Court Act. Compare Victoria v Commonwealth [1937] HCA 82; 58 CLR 618 at 630 per Dixon J (“[w]hen a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid”).

123    At the resumed hearing on 14 May 2026, senior counsel for the first appellant conceded that s 10 of the Defamation Act means that it is not permissible for us sitting on appeal to make orders allowing the appeal, and remitting the further hearing of the proceeding to the trial judge to determine whether any of the outstanding pleaded defences were made out, and if not, to assess damages.

124    He contended, however, s 10 does not prevent a Full Court from making orders allowing the appeal and “varying” the orders of the trial judge within the meaning of s 28(1)(a) by entering judgment and awarding damages.

125    We cannot accept that submission.

126    First, such orders would not properly be characterised as mere “variations” of the orders made by the primary judge. The effect of them would be to reverse them, because they would have the exact opposite effect.

127    Secondly, and more fundamentally, as we have explained, Mr Thurston’s original cause of action in defamation against Channel 9 and Fox Sports ended with his death, so other than making an order allowing his appeal and making a new order in respect of costs, there is no extant cause of action in respect of which any substantive order may be made. See Ryan at 534.

128    Thirdly, it is clear that s 10 of the Defamation Act is intended to apply at any time during the life of a proceeding, whether during the trial or on appeal. It says, in terms, consistently with the common law position set out in Ryan, that a legal representative of a deceased person cannot assert, continue or enforce a cause of action for defamation in relation to the publication of defamatory matter about him published before his death. And by seeking the making of orders allowing the appeal and substituting an order that the proceeding be dismissed with an order that the administrator of Mr Thurston’s estate be awarded damages, is to do precisely that which s 10 prohibits.

129    Fourthly, it would be passing strange if s 10 were to operate so as to permit a Full Court to make the orders sought by the first appellant here, in circumstances where he concedes that the judge on remittal could not make them.

130    Finally, and in any event, it is not appropriate in all the circumstances for this Full Court to determine factual questions involved in the pleaded defences here or in assessing the quantum of damages. That is especially so because the primary judge made an award of damages against Seven. His Honour is best placed to take that into account in relation to any award of damages that may be made against Channel 9.

131    We should record the fact that the solicitors for the first appellant issued and served notices under s 78B of the Judiciary Act 1903 (Cth) on all Attorneys-General in relation to the inconsistency point. By the date of the resumed hearing (14 May 2026) most Attorneys-General had responded indicating that they did not intend to intervene in this Court, and to the extent that no response had been given by that date, as we noted at the hearing on 14 May, we formed the view that a reasonable time had elapsed within the meaning of s 78B. As things stand now, all of the remaining Attorneys-General, apart from the Attorney-General for the Australian Capital Territory, have responded indicating that they did not wish to intervene in this Court.

remittal of the Channel 9 proceeding

132    As set out above, s 28(1)(c) of the Federal Court Act permits the Full Court on an appeal to “set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit”.

133    In Community and Public Sector Union v Telstra Corporation Ltd (No 2) [2001] FCA 479; 112 FCR 324 at 329 [17], Finkelstein J said that “[t]he better view appears to me to be that an order under s 28(1)(c) does not result in a new trial. Accordingly, the ‘further hearing’ will be conducted on the basis that it is a continuation of the first trial, where the parties can only mend their hand or change course in accordance with well known rules”.

134    That view was quoted with approval in Fernando v Commonwealth [2014] FCAFC 181; 231 FCR 251 at 262–263 [52]–[53] (Besanko and Robertson JJ, with whom Barker J agreed) and in Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105; 403 ALR 498 at 514 [43] (Jackson J). See too Australian Securities and Investments Commission v M101 Nominees Pty Ltd (in liq) (No 6) [2023] FCA 1276 (O’Callaghan J); and New Aim Pty Ltd v Leung (No 3) [2023] FCA 1295 (O’Callaghan J), two cases in which the terms of remittal orders made by the Full Court were unclear.

135    We refer to those cases, and to s 28(1)(c), to put it beyond doubt that the scope of the remittal we will order on this appeal is limited in that way – that is, it is to be a continuation of the first trial, limited to the question of whether Channel 9’s pleaded defences are established and if not, the quantum of any damages to be awarded.

136    As to the defences, it is, of course, a matter for the primary judge, but it is appropriate nonetheless to observe that Channel 9 offered no evidence at the trial in support of its defence of statutory qualified privilege. In those circumstances, it is, we would have thought, difficult for that defence to be established, including because the burden of establishing the defence lies with Channel 9.

137    As to the justification defence, Mr Sibtain spent some time before us on appeal attempting to make good the proposition that each of the imputations is substantially true, but it is fair to say that he struggled to do so, as these passages from the transcript (at pages 94 ff) demonstrate:

O’CALLAGHAN J: Mr Sibtain, can I ask you this question? Is it asserted that each of the applicants made this rolling sound at any particular point?

MR SIBTAIN: No, it’s not.

O’CALLAGHAN J: So do you know which of them did?

MR SIBTAIN: … our case was put on the basis that none of the appellants dissociated themselves from the conduct of those in the group who were injecting the racist elements, and it was the - - -

O’CALLAGHAN J: How does someone disassociate themselves from the conduct of people they’re sitting with?

MR SIBTAIN: A number of ways. You can tell them to stop, and we say if that occurred – well, we say didn’t occur, but you could tell them to stop, and then one might understand that the single instance of that conduct might be insufficient. You could move away, you could distance yourself from those people. There are a number of the ways in which one could dissociate, but for reasons I will develop, there was a movement on block of a group of young men from bay 5 in the stadium to bay 4 in the stadium, which is the first incident that Mr Naden complained about, to bay 8 in the stadium, which is the second complaint that Mr Knowles and Mr Catterick say that they made about their conduct. There was a continuity of association at a time where it must have been expected that the conduct of members in the group would continue if - - -

O’CALLAGHAN J: But the imputations that you say are substantially true, which are recorded, among other places, at paragraph 56 of his Honour’s reasons – (b), (c) and (d) - - -

MR SIBTAIN: Yes.

O’CALLAGHAN J: - - - each allege that each of the applicants racially abused. Each of the applicants was ejected because of his racist remarks, and each of the applicants so conducted himself and so on. So the imputations that you have to say are substantially true involve establishing that each of them engaged in racial abuse and the like. And so far as I understand it, the highest you put it is that the making of the rolling sound, not in and of itself, but in the context of rigorous sledging and the reference to the uncle, was such abuse.

MR SIBTAIN: Yes.

BROMWICH J: But it isn’t your problem - - -

O’CALLAGHAN J: Well - - -

BROMWICH J: - - - if you can’t identify which one?

MR SIBTAIN: Well, no, because the way in which we particularised our case, the way in which we said that each of the appellants had engaged in that conduct was by continuing to associate and not dissociating themselves from the perpetrators.

…

O’CALLAGHAN J: These are very – it’s such a serious thing to say about somebody, that they’re racists, that they were thrown out because of their racial abuse. And if the best you can come up with is the making of a rolling sound, well, speaking for myself, I just find it improbable in the extreme that that establishes the substantial truth of any of the imputations.

MR SIBTAIN: I had better work a bit harder then to convince your Honour that that was not the only – that was the conduct that was complained about - - -

O’CALLAGHAN J: Well, tell me. You talked about a cause of action before.

MR SIBTAIN: Yes.

O’CALLAGHAN J: So pick up on that analogy. Give me the particulars of the abuse.

MR SIBTAIN: The particulars of the abuse - - -

O’CALLAGHAN J: The racial abuse.

MR SIBTAIN: The particulars of the racial abuse are the engaging in offensive conduct towards someone and then introducing a racial element by making the rolling sound.

O’CALLAGHAN J: Anything else?

MR SIBTAIN: The way in which it was intended, it was intended to be racial abuse, and I – there is specific evidence that I will come to, to make good that submission. And it was received as racial abuse. I might go directly to the evidence of Ms Cowie and Mr Walford, because we say that that’s

BROMWICH J: Well, just before you do that, though, just to pick up and continue what Justice O’Callaghan said, the difficulty with having a collective responsibility of all of the applicants for what it seems was done by one of them – and you don’t know which one – is that you end up having to engage in that vexed area of common purpose reasoning, and that’s a steep hurdle.

MR SIBTAIN: Well, the way in which it was put below – I hear what your Honour says. The way it was put below by us was the way we pleaded our case; it was the way in which we made submissions, and it was always put on the basis that, by reason of the continuing association – bearing in mind we suggested that the abuse and the racial element, the rolling sound, continued from when they were in bay 5 behind Ms Cowie and Mr Walford, which I have to come to because it’s important – it continued – it started there, it continued into bay 4 and then it continued into bay 8.

BROMWICH J: The difficulty with that simply not disassociating is that it falls short, well short, of any concept of common purpose, and I know this is drawing from the criminal law, but it’s the area I’m most familiar with, and there’s a line of cases which have gone up and down – McAuliffe and a string of others – about this common enterprise or common purpose, and it’s a difficult thing to get up on, at least in the circumstances you’ve got here where there may be … myriad of reasons why someone hasn’t moved and disassociated, not least because it’s a transient thing and you’re watching a football game with your mates or a rugby game with your mates, a league game with your mates.

MR SIBTAIN: And a transient – I would have to accept that a one-off incident, a one-off transient incident that wasn’t causative of dissociation – I see the difficulties that I would face with that. I accept that.

…

ABRAHAM J: Can I ask one further question just to make sure I’m understanding. It’s a group of men that move from the various bays, three of whom are – is it three – applicants.

MR SIBTAIN: Correct.

ABRAHAM J: So when we don’t know who said it, it’s not one of the three, it’s one of the group.

MR SIBTAIN: That’s so.

ABRAHAM J: So the person who did what you say makes it racial abuse might not be an appellant, for a start.

MR SIBTAIN: Quite.

ABRAHAM J: And you’ve said there’s evidence of an intention that it’s racially abusive. How do you sheet intention home to the appellants when the person that did it, assuming it occurred, might not be them?

MR SIBTAIN: On two bases. One is that Mr Thurston, certainly when he was in bay 8 – we say that his declaration without prompting, “Yes, yes, yes, we know racial abuse won’t be tolerated,” was - - -

ABRAHAM J: Judge didn’t accept that, as in accept the meaning that you were attributing to it. Having heard the evidence, he did not regard that as any – as a consciousness of guilt.

MR SIBTAIN: No, the primary judge didn’t. We say it was.

ABRAHAM J: And he said it wasn’t, having assessed the evidence, including the witnesses, and no doubt their explanations.

(Some of the extracts above were misattributed to Mr Reynolds, so we have corrected them.)

disposition

138    As is apparent from what we have said above, had the first appellant not died his appeal against Channel 9 would have succeeded. In those circumstances, as Channel 9 agreed, he is entitled to his costs of the appeal. Otherwise, for the reasons we have given above, the first appellant’s appeal must be dismissed.

139    The second and third appellants’ appeal as against Channel 9 will be allowed and an order made remitting the matter for further hearing by the primary judge. The appellants’ appeal against Fox Sports is to be dismissed, for the reasons given above. And costs of that appeal will follow the event.

Associate:

Dated:    25 June 2026