Federal Court of Australia

Thurston v Fox Sports Australia Pty Limited (No 2) [2026] FCAFC 118

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rule 39.05(h) of the Federal Court Rules 2011 (Cth), order 3 of the Court’s orders dated 25 June 2026 be amended by including the words “including any question of costs” after the word “proceeding”.

2.    The interlocutory application of the second and third appellants dated 8 July 2026 otherwise be dismissed.

3.    There be no order as to the costs of the application.

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

REASONS FOR JUDGMENT

THE COURT:

1    In our reasons dated 25 June 2026, we dealt with appeals brought by the appellants 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 television broadcasts of a rugby match in Gosford, New South Wales between the Penrith Panthers and the New Zealand Warriors in 2020. These reasons assume familiarity with those reasons. See Thurston v Fox Sports Australia Pty Ltd Limited [2026] FCAFC 89.

2    The appellants contended below, and on appeal, that the publications by Channel 9 and Fox Sports 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).

3    Each of the broadcasts 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.

4    As against Channel 9 (the two entities being the sixth and seventh respondents respectively) the appellants failed before the primary judge because his Honour found that the pleaded defamatory imputations were not made out, and ordered that they pay Channel 9’s costs of the proceeding on a party and party basis.

5    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.

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

7    We considered the position with respect to the first appellant separately because he died in 2025, after judgment was delivered by the primary judge. His administrator ad litem appealed on behalf of Mr William Thurston’s estate. As we explained in our reasons, to the extent that he sought orders that the appeal be allowed; judgment be entered in his favour; and that he be awarded a sum in damages, his appeal was proscribed by operation of s 10 of the Defamation Act 2005 (NSW).

8    Channel 9 relied on a notice of contention contending that if the primary judge was wrong in rejecting the 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).

9    For the reasons we gave, the primary judge erred in rejecting the imputations pleaded against Channel 9. We found that his Honour ought to have found that each of the imputations was conveyed. In those circumstances, we remitted the matter to the primary judge for further hearing in relation to Channel 9’s pleaded defences.

10    Relevantly, we ordered that the appeals of Mr Townsend (the second appellant) and Mr Renner (the third appellant) against Channel 9 be allowed and that their proceedings be remitted to the primary judge for further hearing. As we explained in our reasons, the scope of the remittal was and is to be limited to 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. See reasons at [132] – [135].

11    So much, one would have thought, was clear and sufficient enough.

12    After we published our reasons, and made the orders in respect of the appeals, lawyers for Mr Townsend and Mr Renner made an interlocutory application dated 8 July 2026, and later filed with leave written submissions (including in reply to those filed on behalf of Channel 9) which, relevantly, contended that we had made a mistake. It was contended that we made a “slip” in not setting aside the costs order made by the primary judge in favour of Channel 9, so that his Honour would “be free to make orders on judgment and costs as between [Channel 9] and Townsend/Renner”. Counsel went so far as to submit that the primary judge “cannot set aside his original orders on liability and costs” and that “[o]nly the Full Court can do so”.

13    That submission is, with respect, misconceived. It will be within the power of the primary judge on remittal to determine or redetermine the question of costs of the proceeding as a whole once the course of future events unfold. As the Full Court said in Clifton (Liquidator) v Kerry J Investment Pty Ltd trading as Clenergy (No 2) [2020] FCAFC 112 at [25], in a not dissimilar context: “The point is made that the judge hearing the [proceeding] as remitted will be in the best position to determine the issue”.

14    Accordingly, we do not think it necessary to amend or vary the orders we made, in the manner suggested by counsel for Messrs Townsend and Renner. It will be for the primary judge to consider any variation of the costs order he made after he has determined the issues remitted to him.

15    Lest there be any doubt about it, however, we will vary order 3 of our orders made on 25 June 2026 by adding the words “including any question of costs” after the word “proceeding” pursuant to r 39.05(h) of the Federal Court Rules 2011 (Cth). The interlocutory application dated 8 July 2026 will otherwise be dismissed.

16    We do not propose to make any order as to the costs of this application, because the amount would be minimal in the scheme of things, and there must be an end to it.

17    We should add that the submissions filed on behalf of Mr Townsend and Mr Renner strayed beyond the leave we granted to file submissions about the issue we have dealt with. To that extent, we have had no regard to them.

Associate:

Dated:    4 September 2026