Federal Court of Australia
Thurston v Fox Sports Australia Pty Limited [2025] FCA 54
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Judgment in favour of the applicants with respect to their claims against the fourth respondent and fifth respondent pleaded at paragraphs 17, 18(ii), 18(iii), 18(v), 18(vi), 18(viii), 18(ix), 19, 20(ii), 20(iii), 20(v), 20(vi), 20(viii), 20(ix) and 21 of the further amended statement of claim.
2. The fourth respondent and fifth respondent, collectively, are to pay each of the applicants damages for non-economic loss, assessed in the amount of $200,000 (judgment sum).
3. Pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth), the fourth respondent and fifth respondent are to pay interest on the judgment sum from 15 August 2020, at interest rates determined in accordance with paragraph 2.2 of the Court’s “Interest on Judgments” Practice Note (GPN-INT).
4. The applicants’ claims against the first, sixth, seventh and eighth respondents be dismissed.
5. Any party seeking a different costs order to that referred to in [314] of these reasons for judgment (proposed costs order) is to file and serve written submissions not exceeding 5 pages in length and any evidence in support, by 4.30 pm on Friday, 21 February 2025.
6. Any party seeking to respond to any submissions and evidence filed pursuant to Order 5 of these orders is to file and serve written submissions in response not exceeding 3 pages in length and any evidence in support, by 4.30 pm on Friday, 28 February 2025.
7. In the event that submissions are filed pursuant to Order 5 of these orders, the question of costs will be determined on the papers, unless a party seeks an oral hearing.
8. In the event no submissions are filed pursuant to Order 5 of these orders, the Court will make the proposed costs order without hearing further from the parties.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
HALLEY J:
1 On the evening of 14 August 2020, a group of young men were ejected from a National Rugby League (NRL) match for allegedly racially vilifying and abusing a player on the field. The match was a game between the Penrith Panthers and the New Zealand Warriors (Match) played at the Central Coast Stadium in Gosford, New South Wales (Stadium).
2 The men who were ejected included the three applicants, William Thurston, Cherokee Townsend and Joshua Renner. The NRL player subject to the alleged abuse was Brent Naden, a Wiradjuri man, who at that time played for the Penrith Panthers.
3 In this proceeding, the applicants bring claims against the respondents pursuant to the Defamation Act 2005 (NSW) (Act).
4 The proceeding raises for determination what conduct can be characterised as racial vilification or racial abuse and the reasonableness of reporting by major media organisations of allegations of racial vilification and racial abuse.
5 The ejection of the men was broadcast by the first respondent (Fox Sports) during the half time break of its live coverage of the Match. The broadcast by Fox Sports of the ejection of the applicants for racial abuse is the first matter complained of by the applicants.
6 The ejection was also the subject of the fourth matter complained of that was published by the fourth respondent (Channel 7), the fifth matter complained of that was published by the fifth respondent (Seven Network), and the sixth matter complained of that was published by the sixth and seventh respondents (together, Channel 9). The applicants accept that there was no evidence adduced to support the pleaded contention that there had been any publication by the eighth respondent, Nine Digital Pty Ltd, of the sixth matter complained of. The claims previously advanced by the applicants against the second respondent and third respondent with respect to the second and third matters complained of were discontinued prior to the hearing.
7 Mr R Rasmussen of counsel appeared for all applicants at the hearing.
8 The applicants contend that the publications by Fox Sports, Channel 7, Seven Network, and Channel 9 (together, respondents) 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 Naden. They contend that each of the imputations that they have pleaded are serious and false. They further contend that the publications by the respondents and the falsity of the imputations have had a significant effect on them, particularly as each applicant has a profound respect for Indigenous Australian culture and Mr Townsend is a relative of Mr Naden.
9 Mr D Sibtain SC and Mr T Senior of counsel, appeared for all respondents at the hearing.
10 The respondents contend that none of the pleaded imputations are conveyed by the matters complained of as none of the matters convey, or is capable of conveying, a meaning that the applicants are racist or had engaged in racial vilification or racial abuse, or made any vile racist remarks. They further contend that, to the extent that the Court is satisfied that any of the pleaded imputations are conveyed, each was substantially true. In addition, Fox Sports and Channel 9 seek to rely on statutory qualified privilege and honest opinion defences if the Court otherwise finds that the pleaded imputations were conveyed and were not substantially true.
11 For the reasons that follow, I have concluded:
(a) the pleaded imputations were conveyed by the first matter complained of, the justification and qualified privilege defences advanced by Fox Sports have not been established, but Fox Sports has succeeded in its honest opinion defence;
(b) the pleaded imputations that were pressed by the applicants were conveyed by the fourth and fifth matters complained of and the justification defences advanced by Channel 7 and Seven Network have not been established; and
(c) none of the pleaded imputations were conveyed by the sixth matter complained of.
12 It follows that the applicants’ claims against Fox Sports and Channel 9 must be dismissed but the applicants are entitled to judgment against Channel 7 and Seven Network.
13 I have concluded that the applicants are each to be awarded compensatory damages in the sum of $200,000 against Channel 7 and Seven Network (collectively) with respect to their publications of the fourth and fifth matters complained of.
14 I address below the principles relevant to the determination of defamatory meaning, the content of each of the first, fourth, fifth and sixth matters complained of, the imputations alleged to have been conveyed by each of those matters complained of, and whether each of those alleged imputations was in fact conveyed.
15 The question of whether an alleged defamatory imputation is conveyed by a matter complained of is a question of fact that an applicant bears the onus to prove on the balance of probabilities: Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [72]-[73] (Wigney J) (Rush (No 7)). It requires a consideration of what the publication would have conveyed to an ordinary reasonable reader: Schiff v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1120 at [6(2)] (Jagot J) citing Rush (No 7) at [74]-[80]. The meaning that words would convey to the ordinary reasonable reader is typically described as the “natural and ordinary meaning” of the words: Rush (No 7) at [76].
16 It is well settled that the ordinary reasonable reader (or viewer) is to be taken to have the following characteristics:
(a) they are a person of fair to average intelligence, experience and education: Rush (No 7) at [75]; Schiff at [6(2)];
(b) they are taken to be fair-minded and are neither perverse, suspicious of mind nor “avid for scandal”: Rush (No 7) at [75]; Schiff at [6(2)];
(c) they do not approach a publication overzealously or seek to construe it like a lawyer, rather, they approach it with a degree of “loose thinking”: Rush (No 7) at [77]; Schiff at [6(2)];
(d) they can and do “read between the lines” in light of their general knowledge and experience of worldly affairs: Rush (No 7) at [77]; Schiff at [6(2)];
(e) they are likely to draw implications, particularly derogatory implications, more freely than a lawyer would: Rush (No 7) at [77]; Schiff at [6(2)];
(f) they are likely to be influenced by the overall tone of the publication, particularly if the publication is tinged with, or even pregnant with, insinuation or suggestion: Rush (No 7) at [80]; and
(g) they consider the publication as a whole, however, a headline designed to catch the eye and give the reader a predisposition about what follows may assume more importance in assessing defamatory meaning: John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; [2003] HCA 50 at [26] (McHugh J) and [187]-[188] (Callinan J).
17 Ultimately, it is the general impression that the publication creates in the mind of the ordinary reasonable reader that determines whether it conveys one or more of the alleged defamatory imputations: Bazzi v Dutton (2022) 289 FCR 1; [2022] FCAFC 84 at [47] (Rares and Rangiah JJ) citing Lewis v Daily Telegraph Ltd [1964] AC 234 at 285 (Lord Devlin).
18 A statement that a person is being investigated by prosecuting authorities or is suspected of having committed a crime may convey nothing more than that there were reasonable grounds for suspecting that a person was guilty or that there were reasonable grounds for investigating whether a person was guilty: Rush (No 7) at [86] citing Lewis v Daily Telegraph at 267-268 (Lord Morris of Borth‐y‐Gest); Flood v Times Newspapers Ltd [2012] 2 AC 273; [2012] UKSC 11 at [8] (Lord Phillips) citing Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 218 (Brooke LJ); Sands v South Australia (2015) 122 SASR 195; [2015] SASCFC 36 at [237]-[240] (Blue, Stanley and Nicholson JJ).
19 As Lord Devlin stated in Lewis v Daily Telegraph at 285:
It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.
20 Further, as Wigney J stated in Rush (No 7) at [89] after citing the above passage from Lewis v Daily Telegraph:
There is no reason to suppose that those principles do not equally apply where the relevant publication concerns a complaint which has been made to, or is being investigated by, a person or body other than the police or the prosecution service.
21 In most cases, a description of a single specific incident is not capable of supporting an imputation expressed in terms of general application: Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 455 (Hunt J).
22 In Nationwide News Pty Ltd v Warton [2002] NSWCA 377 at [60], Heydon JA (Handley and Hodgson JJA agreeing) stated that the proposition that a specific incident is incapable of supporting a general imputation, in the context of whether a particular piece of dishonesty could support an imputation that a plaintiff was dishonest, did not necessarily bar the plaintiff’s claim, but rather called for:
… close and careful attention to the specific circumstances with a view to determining whether the specific conduct alleged in a particular case, unlike specific incidents alleged in other cases, can support a general imputation.
23 In Warton, Heydon JA concluded at [61] that the dishonest activities attributed to the plaintiff were so “extensive, serious and risky” that it was open for an ordinary reasonable reader to infer that only a dishonest person would have done them.
B.3.1. Publication and imputations
24 The first matter complained of (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 game between the Penrith Panthers (Panthers) and the New Zealand Warriors (Warriors). The Fox Sports broadcast comprised a discussion between Jessica Yates and 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, as pleaded, is set out below:
PRESENTER (FEMALE) : 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.
PRESENTER (MALE) : 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.
PRESENTER (FEMALE) : Absolutely at this point ...
[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]
25 The applicants contend that the Fox Sports broadcast conveyed the following imputations (each imputation is pleaded with respect to each applicant):
(a) each of the applicants is racist;
(b) each of the applicants racially vilified Mr Naden during the Match on 14 August 2020;
(c) each of the applicants was ejected from the Match for racial abuse aimed at Mr Naden; and
(d) each of the applicants so poorly conducted themselves towards Mr Naden by racially abusing him at the Match that they should never be allowed into an NRL game again.
26 The respondents advanced essentially the same submissions in response to the threshold issue as to whether each of the matters complained of conveyed the pleaded imputations.
27 They submit that each of the imputations is pleaded at the level of guilt but none of the pleaded imputations of guilt were conveyed by the matters complained of given the impression that would have been drawn by the ordinary reasonable reader because of the combination of the following matters.
28 First, each of the matters complained of referred or alluded to investigations by the police and the NRL into the incident.
29 Second, each of the matters complained of referred to the alleged conduct of the applicants as something that had been reported to the respondents and others.
30 Third, the matters complained of that were published by Fox Sports and Channel 9 included material that made it clear that the assertion of racial abuse against Mr Naden was an untested allegation.
31 The respondents submit that the overall impression created in the minds of the ordinary reasonable viewer by each of the matters complained of was that there were reasonable grounds to suspect or investigate the applicants for having engaged in racial abuse, an impression reinforced for the first matter complained of because it was a live report of conduct that had just taken place.
32 The respondents accepted that, if conveyed, each of the pleaded imputations was defamatory.
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.
37 I turn now to consider whether in addition to the second to fourth imputations, the Fox Sports broadcast also conveyed an imputation that each applicant is racist.
38 The question of whether a publication conveyed an imputation that an applicant is racist was recently considered by Bromwich J in Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004. His Honour was addressing defamatory meaning but also made observations that were relevant to the defence of justification. His Honour stated at [149]:
More directly in response to the question of the definition of “a racist”, Dailymail.com suggests that an appropriate benchmark for the purposes of the defence of justification by way of truth is s 18C(1) of the Racial Discrimination Act 1975 (Cth), which refers to it being unlawful to do an act (otherwise than in private) if it is reasonably likely to offend, insult, humiliate or intimidate another person or group of people, and is carried out because of the race, colour, or national or ethnic origin of that person or group of persons. I am unable to accept that such a description of unlawful conduct for the purposes of such a statute, which is not even a definition, can provide any useful guidance in this entirely different context. Even if it did, it would have to apply not just to the defence, but to whether the imputation was conveyed in the first place, with any other approach to such an evaluative exercise being inherently anomalous: see [Trad v Harbour Radio Pty Ltd [2009] NSWSC 750] [17], reproduced above. This reality makes such an approach even less tenable.
(Italics in original.)
39 His Honour considered at [138] and [141] that the imputation of being “a racist” involves an evaluative judgment by reference to community standards, because it entails assessing whether the matters complained of conveyed to an ordinary reasonable person that the applicant “had the nature or characteristic of being “a racist”, not only that she had said or done something that was able to be perceived as racist behaviour on that occasion”. His Honour further observed at [142] that at the stage of considering whether a pleaded imputation was conveyed, the assessment is confined to the publication sued upon, whereas at the stage of considering the justification defence of truth, the assessment is directed to what is proven about the applicant’s nature or character.
40 After considering dictionary definitions of “racist” as both a noun and an adjective in the third edition of the Oxford English Dictionary and the Macquarie Dictionary, online as at 2022, Bromwich J concluded at [157]:
The content of both definitions reveals their limitations in relation to this case. However, the Macquarie Dictionary online definition is more nuanced and therefore comes closer to the meaning that I would attribute being given to the word “racist” and the phrase “a racist” by the putative ordinary reasonable reader these days. It goes somewhat beyond the blunter and more obvious forms of adverse differentiation based on race described by the older or more traditional dictionary definitions, but still falls short of capturing the essence of a more modern understanding of the term “racist”, and thereby the phrase “a racist”, as I would comprehend it.
(Italics in original).
41 His Honour then provided the following guidance at [158]-[159], with which I respectfully agree and adopt, in approaching the term “racist” when deployed in defamatory imputations:
The term “racist”, applied both to conduct and to character, may now be understood in general parlance to encompass a wider range of attitudes and behaviours than was commonly the case a generation ago, with a wider range of seriousness and therefore a broader reach. It also allows for greater degrees of gradation of seriousness and the presence or absence of a state of mind, which in turn may have a bearing on the extent of damage to reputation for the purposes of defamation. The practical effect in a given case may mean that an imputation of being “a racist” is both easier to establish, but also is easier to show that it is substantially true.
I therefore conclude, adopting aspects of what has been submitted to me by both parties, that to be defamed as being “a racist” may now be considered by the ordinary reasonable person to include it being conveyed, as the single meaning of a publication read as a whole, the attributes of treating or regarding or describing someone, or something about or related to them, differently, generally adversely and in a way that is offensive or otherwise objectionable, because of their race or some feature attributed to their race. As there is no necessity for any particular state of mind, this does not necessarily need to be conveyed, although it may be inherent in what is published and also make it easier for that conclusion to be reached.
(Italics in original).
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.
B.4.1. Publication and imputations
43 On 15 August 2020, Channel 7 broadcast the fourth matter complained of (Channel 7 News Item). The Channel 7 News Item was broadcast as part of the 7 News Sydney programme. The Channel 7 News Item comprised a report by the news reader and a display of words and images. A transcript of the report, the words displayed on the screen, and a summary of the images broadcast, as pleaded, is set out below:
PRESENTER (FEMALE) : Sickening new video has emerged showing several young men making a series of vile racist remarks towards NRL Star Brent Naden. It’s understood the men were ejected from the stadium midway through Penrith’s clash with the Warriors on the New South Wales Central Coast. NRL chairman Peter V’Landys has promised swift action against those involved.
[words on the screen:
Vile racist NRL video.
NRL launches investigation after racial slurs made against Panther’s star]
[Images of the applicants being approached by police and ejected from the stands by police]
44 The applicants contend that the words and images broadcast on the screen in the Channel 7 News Item conveyed the following imputations:
(a) each of the applicants made vile racist remarks towards Mr Naden; and
(b) each of the applicants was ejected by police from the stadium midway during the Match because of his vile racist remarks towards Mr Naden.
45 The applicants confirmed in their oral closing submissions that they did not press a third imputation originally pleaded that each of the applicants is racist.
46 Unlike the Fox Sports broadcast, the Channel 7 News Item refers to a “Sickening new video” that it reports has “emerged showing several young men making a series of vile racist remarks towards” Mr Naden. The “new video” is not identified. It is clearly not the video broadcast in the Channel 7 News Item. The video broadcast in the Channel 7 News Item is the video of the ejection of the applicants and others from the Stadium. It does not show any racist remarks being made to anyone. It would appear in context that the reference to the “Sickening new video” is a reference to the video of an Indigenous Australian dance that Mr Thurston, Mr Townsend and another performed after they had been ejected from the Stadium. This dance is referred to later in these reasons at [107] below. For present purposes, it is sufficient to note that no “vile racist remarks” were made in the video.
47 Notwithstanding the largely inexplicable reference to a “Sickening new video”, the overwhelming impression created in the mind of the ordinary reasonable viewer by the combination of the words spoken, the words appearing on the screen, and the video of the police approaching and then ejecting the spectators from the Stadium is that vile racial remarks had been made by the spectators shown in the video against Mr Naden and the NRL was now going to investigate what action it would take against those spectators, not that the NRL was going to investigate whether the spectators had made vile racial remarks.
48 I am satisfied, contrary to the respondents’ submissions, that the Channel 7 News Item was exclusively directed at guilt not suspicion of guilt. The words spoken by the newsreader are unqualified. The newsreader announces that a “new video has emerged showing several young men making a series of vile racist remarks” (emphasis added). The language and tone are not of suspicion or allegation. The video is described as “Sickening” and the words appearing on the screen describe it as a “Vile racist NRL video”. The reference to a “promise” of “swift action against those involved” by Mr V’Landys proceeds on a finding or assumption of guilt, not a swift investigation to determine guilt.
49 It was common ground that each of the applicants is clearly identified in the video shown in the Channel 7 News Item.
50 For the foregoing reasons, I am satisfied the applicants have established that the Channel 7 News Item conveyed the two pleaded imputations that they pressed at the hearing.
B.5.1. Publication and imputations
51 In the period between 15 August 2020 and 30 June 2021, Seven Network published on the social media platform then known as Twitter part of the pleaded fifth matter complained of on its Twitter handle at https://twitter.com/7NewsSydney/status/1294538684465688576 (Channel 7 Tweet). The Channel 7 Tweet, as pleaded, contained an embedded video (being the Channel 7 News Item) and the middle portion of the following words and images (being the image and words of the tweet encapsulating the embedded video):
52 The applicants contend that the Channel 7 Tweet conveyed through the words and images appearing on the screen the following imputations:
(a) each of the applicants made vile racist remarks towards Mr Naden; and
(b) each of the applicants was ejected by police from the stadium midway during the Match because of his vile racist remarks towards Mr Naden.
53 Again, as I explain at [45] above, the applicants do not press a third imputation also originally pleaded as being conveyed by the Channel 7 Tweet that each of the applicants is racist.
54 The Channel 7 Tweet comprises a republication of the Channel 7 News Item in the embedded video together with the text prefacing the embedded video which is taken from the words spoken in the Channel 7 News Item. For the same reasons that I have concluded that the Channel 7 News Item conveyed the two pleaded imputations pressed at the hearing, I am also satisfied that the Channel 7 Tweet conveyed those two imputations.
B.6.1. Publication and imputations
55 On 14 August 2020, Channel 9 broadcast the sixth matter complained of (Channel 9 broadcast) on the Channel 9 Wide World of Sports Friday Night Footy programme. The Channel 9 broadcast comprised a discussion between Danika Mason and 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, as pleaded, 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 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]
56 The applicants contend that the Channel 9 broadcast conveyed the following imputations:
(a) each of the applicants is racist;
(b) each of the applicants racially abused Mr Naden during the Match on 14 August 2020;
(c) each of the applicants was ejected by police from the stadium during the Match because of his racist remarks towards Mr Naden; and
(d) each of the applicants so conducted himself in racially abusing Mr Naden at the Match that they should be banned for life from attending NRL matches.
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.
61 The respondents contend that to the extent that any of the imputations are conveyed by any of the matters complained of then each imputation was substantially true. The respondents rely on the particulars of justification set forth in Annexure A to their defences for each pleaded imputation.
62 Given my conclusion that the Channel 9 broadcast did not convey any of the pleaded imputations, it is only necessary to address the defence of justification in answer to the imputations that I have found were conveyed by the Fox Sports broadcast, and by the Channel 7 News Item and the Channel 7 Tweet (together, Channel 7 broadcasts).
63 The particulars of justification relied upon by the respondents in their defences included the following contested alleged facts (the paragraph references are to paragraphs of the particulars of justification set forth in Annexure A to each of the respondents’ defences):
(a) the comments made by the group of men at the Match, including the applicants (Group) to Mr Naden included comments to the effect that Mr Naden was a murderer and rapist like his cousin, Malcolm Naden (at [4(b)]);
(b) the Group loudly and repeatedly made sounds associated with and made at traditional Indigenous Australian ceremonies or during ritual practices (at [4(c)]);
(c) all members of the Group participated in the abuse of Mr Naden at least because no member of the Group, including any of the applicants, disassociated themselves or took any steps to disassociate themselves from the abuse (at [5]);
(d) the abuse of Mr Naden (defined as the First Abuse) was racial abuse (at [7]);
(e) the Group was verbally abusive towards the Panthers’ trainer, Hayden Knowles for contacting security (at [10]);
(f) Mr Renner did not disassociate himself or take any steps to dissociate himself from the sounds made by members of the Group, including Mr Thurston and Mr Townsend, made outside the Stadium that were associated with and made at traditional Indigenous Australian ceremonies or during ritual practices, and simulated a traditional Indigenous Australian dance (defined as the Second Abuse) (at [12]);
(g) the Second Abuse was racial abuse (at [13]); and
(h) the applicants’ involvement in the First Abuse and the Second Abuse warranted each of them being banned for life from attending NRL matches (at [16] of Annexure A to the defence filed by the second to eighth respondents, including the Channel 7 defence and at [15] of Annexure A to the Defence filed by Fox Sports).
64 I address each of these contested alleged facts below.
65 In order to succeed on a defence of justification both under s 25 of the Act and at common law, it is necessary to prove the substantial truth of each of the imputations conveyed. Section 25 of the Act provides:
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
66 The concept of “substantially true” is defined in s 4 of the Act as “true in substance or not materially different from the truth”. It is not necessary to establish that every part of an imputation is literally true, it is sufficient if the “sting” or gravamen of an imputation is true: Palmer v McGowan (No 5) (2022) 404 ALR 621; [2022] FCA 893 at [278] (Lee J).
67 As submitted by the respondents, while the defence focuses on the truth of the imputations, the proper approach is to consider the propositions contained in the imputation in context, construing the matter complained of as a whole: Feldman v Polaris Media Pty Ltd (as trustee of The Polaris Media Trust (trading as The Australian Jewish News)) (No 2) [2018] NSWSC 1035 at [155] (McCallum J) citing Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165; [2002] NSWCA 41 at [26] (Mason P, Wood CJ at CL agreeing).
C.3. Evidence directed at justification defences
C.3.1. The applicants’ evidence
68 Each of the applicants, together with William (Billy) Perry, Harry Pirini and Ryan Xerri, gave evidence denying that any member of the Group had engaged in racial abuse. Each denied that any member of the Group had made a distinctive Indigenous Australian sound, that was referred to by the parties at the hearing as a rolling sound (Rolling Sound) in the Stadium, other than when Mr Perry made the Rolling Sound from Bay 8 in the course of nine members of the Group being ejected.
69 Each of the applicants, as well as Mr Perry, Mr Pirini and Mr Xerri, found being cross examined a challenging experience and at times their evidence was evasive and non-responsive. This tendency was particularly prominent in their evidence concerning the Rolling Sound.
70 Mr Thurston initially gave evidence that both he and other members of the Group, including Mr Townsend and Mr Renner, were familiar with the Rolling Sound and each of them knew how to make the Rolling Sound. He subsequently, however, gave the following evidence after being played a video of Mr Perry making the Rolling Sound:
All right. You will have observed – well, you were standing about a metre away from Billy Perry, weren’t you?---He was making a Warriors chant.
Right. He made a Warriors chant and, at the end, he made the rolling sound, didn’t he?---Well, I think you’re getting it mixed up. It could be an Aboriginal noise or a Māori noise. What’s the difference? He’s doing a Warriors chant. He’s clearly going “Warriors, Warriors” and makes a noise. Where do you - - -
And the noise - - -?---I’m not sure what the – the line is, where it’s a Warriors chant, or an Aboriginal chant.
The noise that he made was the noise that, you accepted earlier, was a noise that was made at cultural Aboriginal indigenous ceremonies?---And Māori, also, ceremonies as well. It’s also affiliated with the Māori. We also make Māori noises as well. A lot of the boys know the haka, so they go off that as well.
That wasn’t the haka, was it?---He was screaming “the Warriors”.
Could you answer my question? That wasn’t the haka, was it?---No, it wasn’t the haka.
71 After Mr Townsend was shown the video of Mr Perry making the Rolling Sound, he gave the following evidence:
MR SIBTAIN: Were you – I’m going to suggest to you: you looked directly at Mr Perry at the time that he made that sound. You looked directly face-to-face – you were directly face-to-face with Mr Perry at the time he made that sound?---I don’t – I don’t recall him doing it, to – like, I really don’t.
Well, can I suggest that’s not true. You do remember him making that sound?---Are you asking me if I do?
I’m suggesting to you that you do remember him making that sound at the game?---I don’t know what you mean when you – are you – I’m suggesting? Like - - -
HIS HONOUR: He’s saying to you you’re not telling the truth when you say now you don’t remember him making that sound at the game?---Yes. No, I – sorry. I don’t remember him doing it but, as you can see up on the TV, back on the video, he does that.
MR SIBTAIN: Are you saying you don’t remember him doing it but you accept seeing the video that he did do it?---Yes.
Is that what you’re saying?---Yes. But – no. Sorry.
Can I suggest to you: you do remember him doing it?---No, I don’t remember him doing it. No.
72 Equally evasive and non-responsive was the following evidence given by Mr Renner after being played the video of Mr Perry making the Rolling Sound:
MR SIBTAIN: Did you hear at the end he made a rolling sound; a “brr” sound?---Yes, sort of. I couldn’t recall that to be an Aboriginal sound, though, because his – I hear a Warriors chant and then “hoot hoot hoot” and a bang on the chest, and a noise after that, but I could not pick that to be an Aboriginal noise.
All right. But when you were, earlier in your evidence, saying you had an understanding of the sorts of sounds - - -?---A small understanding of things.
You had an understanding, whether it be a small understanding – I think were your words?---Yes.
Of the sorts of sounds that are made at Aboriginal cultural ceremonies from the various ceremonies that you had attended prior to the game?---Yes.
Yes? That’s right?---Yes. Yes, I – some sounds, yes.
Yes. And I’m just going to suggest to you that’s one of the sounds that you had heard at those ceremonies?---I cannot recall.
But you can’t recall whether the rolling sound is a sound that you’ve heard made at Aboriginal ceremonies?---Well, the noises I’ve heard at Aboriginal ceremonies have been the didgeridoo and dancing and things like that.
73 Given the manner in which the applicants and their other witnesses gave evidence concerning the alleged racial abuse, I treated their evidence with caution, in particular their asserted denials of knowledge or recollection of the making of the Rolling Sound in the Stadium.
C.3.2. The respondents’ evidence
74 The respondents relied on the evidence from Mr Naden, the Panthers’ trainer Mr Knowles, the Panthers’ medical and rehabilitation coordinator Craig Catterick, the Fox Sports freelance cameraman Gary Gare, and two Panthers supporters who were seated in Bay 5 during the Match, Dorothy Cowie and Stuart Walford, in support of their justification defences.
75 Each of the respondents’ justification witnesses responded directly and cogently to the questions they were asked in chief and in cross examination and I am satisfied that their evidence was generally consistent with the video evidence played and tendered at the hearing. I accepted their evidence where it conflicted with the evidence given by the applicants and the other members of the Group with respect to the racial abuse allegations, except to the extent that the evidence of the respondents was inconsistent with the apparent logic of events and the video evidence.
C.4.1. Seating arrangements of the Group at the Stadium
76 On the afternoon of 14 August 2020, the applicants together with the other members of the Group, namely Mr Perry, Mr Xerri, Mr Pirini, Luke Ponton, Trust Ledger, Bobby Johnathan, Thomas Starkey, Zion Pene, Nick Valentine, Jason Kakato and Kohatu Tierney, met for a birthday celebration for Mr Renner at the Budgewoi Hotel before travelling by a party bus to the Stadium to watch the Match.
77 The Stadium was only about a quarter full because of COVID-19 restrictions.
78 The applicants entered the Stadium at approximately 6.00 pm at or shortly after the commencement of the Match 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 of the Stadium (Bay 4 Group). Bay 4 is located on the western side of the Stadium. Mr Renner initially sat with Mr Valentine in Bay 8 of the Stadium. Mr Jonathan and Mr Starkey initially sat in another area in or near Bay 8. Bay 8 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.
79 After approximately 15 to 20 minutes, 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.
80 In the first half of the Match, 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 of the Stadium. Mr Naden was playing on the right wing for the Panthers during the Match and was therefore playing in a position that placed him close to the western side of the Stadium and the applicants in the first half.
81 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.
82 Before moving to Bay 8, the Bay 4 Group made 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”. Mr Naden gave evidence that he was initially not unduly affected by the comments made by the Bay 4 Group. He described it 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”.
83 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”.
84 Mr Walford gave evidence that he heard a group of males yelling out quite loudly during the first half of the Match words like “black” and “brother”, the latter with an “Aboriginal type accent” that sounded like “bruddah”.
85 The evidence given by Ms Cowie and Mr Walford was consistent with statements that were made in an email that she jointly drafted with Mr Walford and sent to Karyn Murphy of the NRL Integrity Unit on 15 August 2020, the day after the Match, that the group of men were yelling “with the same type of accent using such terms as “Brudder instead of brother, and appeared to us to be attempting to sound [I]ndigenous” and “We did hear the word ‘black’ and “brudder” used frequently and at one point the phrase ‘domestic violence’, although we could not state in what context”.
86 The evidence of Ms Cowie and Mr Walford and the extracts from the email to Ms Murphy referred to above were objected to by counsel for the applicants on the basis that the evidence fell outside the particulars of justification provided by the respondents. The evidence was admitted only provisionally. I address the basis on which I was ultimately prepared to admit this evidence and its relevance and probative value at [141] below.
C.4.3. Alleged racial abuse of Mr Naden
87 Mr Naden’s attitude to the comments made by the Bay 4 Group changed markedly, however, when the comments included a reference to Malcolm Naden. Malcolm Naden is a distant relative of Mr Naden. He is a notorious fugitive who was arrested and convicted of murder and rape in or about June 2013 and was sentenced to life imprisonment.
88 Mr Naden gave evidence, that I accept, 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. I do not accept the denials of each member of the Bay 4 Group, including Mr Perry, that no member of the group made the Rolling Sound while they were seated in Bay 4.
89 I am satisfied that Mr Naden’s evidence is inherently more plausible given his contemporaneous reporting to Mr Knowles of what he considered to be racial abuse and each of the applicants’ alleged absence of any contemporaneous recollection of Mr Perry subsequently making the Rolling Sound, as otherwise objectively established on video, during the course of the Group’s subsequent ejection from the Stadium. Moreover, the reliability of Mr Naden’s evidence is enhanced by his acceptance that he only heard the Rolling Sound once and that was only from a member of the Bay 4 Group when they were sitting in Bay 4. He did not suggest, and indeed denied, that he heard it on any other occasion, including when Mr Perry made the Rolling Sound in the course of the Group’s ejection.
C.4.4. Initial complaint made by Mr Naden
90 Following the reference to Malcolm Naden and the making of the Rolling Sound, Mr Naden had a discussion on the field with Mr Knowles (First Complaint). Mr Knowles was the on-field trainer for the Panthers in the Match. Mr Knowles gave evidence, that I accept, 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. Mr Knowles’ evidence is consistent with the evidence given by Mr Naden and is consistent with statements that he made in an email that he sent to Ms Murphy on Monday, 17 August 2020. In that email, Mr Knowles reported that Mr Naden had reported to him “on more than one occasion that some members of the crowd were saying inappropriate things and aboriginal jokes plus making aboriginal sounds”.
C.4.5. Second complaint made by Mr Naden
91 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 (Second Complaint).
92 Shortly after Mr Naden’s discussion with Mr Knowles, Mr Naden was approached on the field by Mr Catterick. Mr Naden told Mr Catterick that he was trying to remain focused on the Match 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 what Mr Catterick described in an email he sent to Ms Murphy on 16 August 2020 as “a group of people sitting at the Northern end of the lower grandstand”.
C.4.6. Sledging of Mr Naden from Bay 8
93 The 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. The sledging directed at Mr Naden 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”.
94 Mr Gare gave evidence, that I accept, that he heard members of the Group shout at Mr Naden, while he was filming them, “you’re shit, you’re shit” and “You effing dog”. Contrary to the case advanced by the respondents in their opening submissions, Mr Gare did not give evidence that he heard any member of the Group call Mr Naden a “black dog”.
95 Other 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.
C.4.7. Mr Knowles’ approach to the Group
96 Shortly after the Second Complaint, Mr Knowles approached the Group and exchanged words with them.
97 Mr Knowles gave evidence that his exchange with the Group commenced with a member of the Group saying to him “[y]es, yes, yes. We know that racial abuse won’t be tolerated”. In his email to Ms Murphy on 17 August 2020, Mr Knowles stated that when he approached the Group, and before he could say anything, they said “yeah yeah we know … racial abuse won’t be tolerated … we can say whatever we want” as he was saying “you can’t do this shit, you can’t …”. On balance, I find that Mr Knowles’ more contemporaneous account of the exchange captures more accurately the sequence in which it took place, namely as Mr Knowles was telling the Group that they could not continue to “do this shit”, a member of the Group responded we know “racial abuse won’t be tolerated” and “we can say whatever we want”.
98 Mr Thurston gave evidence that Mr Knowles “told us that he’s going to get us kicked out” to which he responded, on multiple times, “[y]ou cannot kick us out unless we’re swearing or saying anything racial”.
99 Mr Perry gave evidence that the Mr Knowles was “shouting out stuff” but Mr Perry did not know what he was saying and Mr Thurston responded along the lines of “we’re allowed to sledge. We’re not saying anything [racist] … and we’re not swearing”.
100 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”.
101 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.
102 I accept that in addition to protesting that they were not saying anything racist, Mr Thurston also stated the Group was not swearing. I am satisfied that Mr Knowles would be concentrating on the denial of making racist comments, given what he had been told by Mr Naden, and Mr Thurston and the other members of the Group would be focusing on both racism and swearing, given the extent of the sledging that they had conducted of Mr Naden. I do not accept, contrary to the propositions put to the applicants 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.
C.4.8. Removal of the Group from the Stadium
103 At approximately 6.40 pm, shortly before half time in the Match, nine members of the Group were approached by New South Wales police officers and after a short discussion were escorted out of the Stadium by the police officers. 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.
104 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, I accept Mr Perry’s evidence that he made the Rolling Sound as part of his “cheering in the [W]arriors”, not as “voicing” his annoyance at being ejected from the Match, as suggested to him in cross examination, nor as any racial abuse directed at Mr Naden.
105 At the time they were asked to leave the Stadium by the police, Mr Townsend understood that they were being asked to leave for being “drunk and disorderly”.
106 After leaving the Stadium, the applicants learnt as a result of messages that they received on their phones that it had been reported that they had been ejected from the Stadium for making racially abusive comments directed at Mr Naden.
107 At or about that time, and while still outside the Stadium, Mr Thurston, Mr Townsend and Mr Perry performed a short dance that is associated with and performed at traditional Indigenous Australian ceremonies or during ritual practices (Dance). Mr Pene filmed Mr Thurston, Mr Townsend and Mr Perry performing the Dance. The video of the Dance, together with a shorter video in which Mr Pene shouted “F*** the Panthers”, was subsequently uploaded onto a social media platform. Both Mr Pene and Mr Townsend can be heard making the Rolling Sound in the video of the Dance.
C.4.10. Summary of factual findings
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;
(j) Mr Thurston, Mr Townsend and Mr Perry performed the Dance shortly after being ejected from the Stadium; and
(k) Mr Pene and Mr Townsend made the Rolling Sound in the course of the Dance.
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)].
110 The respondents submit that it was the combination of the sledging with a racial element, namely the Rolling Sound, that elevated the conduct of the applicants to racial abuse. They submit that it was racial abuse directed at Mr Naden by the Group that the applicants were members of, and the applicants did not seek to disassociate themselves from that abuse.
111 More specifically, the respondents submit that the sledging of Mr Naden turned “nasty and outright abusive” when the name Malcolm Naden was shouted at him, which was then followed by the making of the Rolling Sound. They submit that the combination of the abuse about Malcolm Naden and the Rolling Sound converted the abuse into “an act of ignorant racist abuse or an ignorant racist remark”.
112 The respondents submit that the escalation of the abuse to racial abuse through the use of the Rolling Sound is consistent with the use of that sound by Mr Perry as the Group was being ejected from Bay 8. Relatedly, they also submit that the making of the Rolling Sound at that time was conduct that was consistent with the Group continuing to direct the same racial abuse to Mr Naden that had earlier been directed at him from Bay 4.
113 The respondents also submit that the Group knew that the abuse they were directing at Mr Naden was racial abuse because that was the only rational explanation for why they volunteered that they were not engaging in racism or racial abuse when they were approached by Mr Knowles shortly prior to them being ejected from the Stadium.
114 The applicants submit that the particulars of justification relied upon by the respondents are not capable of meeting any rational standard of racial abuse. They submit that there is nothing inherently racist in telling someone they have a “shit haircut”, calling out the name “Malcolm Naden” or using the Rolling Sound. None could be objectively construed as denigrating someone on the basis of perceived racial characteristics.
115 The applicants submit that the Court should accept the denials of each of the applicants and other members of the Group that they had participated in any racial abuse of Mr Naden.
116 The applicants submit that the evidence given by Ms Cowie and Mr Walford that they heard the Bay 4 Group shout the words “brudder”, “black” and “domestic violence” from Bay 4 cannot assist the respondents as it was not included in their particulars of justification and were not words alleged to have been heard by Mr Naden. They further submit that there was another group of some six to eight men seated under a red umbrella behind Ms Cowie and Mr Walford who “were possibly the ones responsible” for shouting those words.
117 The respondents submit that they relied on the evidence of Ms Cowie and Mr Walford not as direct proof of the alleged racism that Mr Naden heard but rather as evidence that was capable of rationally affecting, in an indirect manner, the assessment of a central fact in issue, namely whether the Group racially abused Mr Naden. Relatedly, they also submit that the evidence is supportive of the fact that the Rolling Sound was used in a mocking way rather than in a celebratory way or as a show of pride as suggested by Mr Townsend.
118 Whether conduct is racist requires an objective and evaluative assessment: Molan at [142], [145]-[146] (Bromwich J).
119 The justification defence advanced by the respondents turns on the premise that verbal abuse combined with the making of the Rolling Sound elevates the abuse to “racial abuse” and “racial vilification” or the making of “vile racist remarks” and therefore each of the imputations that I have found to have been conveyed was substantially true. The differently formulated imputations were directed at the specific language in each of the matters complained of. The three formulations are conceptually distinct, but the respondents relied on the same particulars of justification to contend that each was substantially true and for present purposes the “racial abuse” and “vile racist remarks” were synonymous and the “racial vilification” was limited to the “racial abuse” and the “vile racist remarks”.
120 Given the defence requires an objective and evaluative assessment of whether the alleged conduct was racist, Mr Naden’s subjective understanding of whether the conduct was racist is not determinative.
121 Equally, whether the Group intended or understood that their sledging amounted to racial abuse is not determinative. In any event, contrary to the respondents’ submissions, I am not satisfied that the Group’s statements to Mr Knowles to the effect that they were not making racist comments establishes a consciousness of wrongdoing.
122 Mr Knowles gave the following evidence in cross examination, that I accept, of his interaction with the Group in Bay 8:
MR RASMUSSEN: Mr Knowles, you never said to them – I’m sorry, I withdraw that. They never said to you, “Yes, yes, yes. We know we’re not supposed to racially abuse”; they didn’t say anything like that to you, did they?---Yes, they did.
They never said to you those words. What they, in fact, said to you, or one of them said to you, was, “You can’t have us kicked out unless we are swearing or saying something racial”; that was what they said, wasn’t it?---I told you what they said to me.
So are you suggesting that, as you walk up to this group of people, they appear to know what it is you’re coming up to talk to them about; is that right?---They definitely knew what I was coming to talk to them about.
123 The statement that “[y]es, yes, yes. We know we’re not supposed to racially abuse” might well suggest, as Mr Knowles concluded, that the Group knew what Mr Knowles was going to talk to them about. The Group knew that they had been vigorously sledging, if not abusing, Mr Naden, an Indigenous Australian player. In that context, it might be expected that the Group was concerned to make clear that they understood that they were not permitted to engage in racial abuse when approached by a Panthers trainer. It is not persuasive evidence of a consciousness of guilt.
124 Equally, the evidence that Mr Knowles gave in chief that the Group were “all kind of giggling and laughing” while he was talking to them is largely equivocal as to whether it suggested or was otherwise consistent with any consciousness of guilt. It might well be explicable on the basis that many of the members of the Group were themselves of Indigenous Australian heritage and were not taking seriously any suggestion that they were racially abusing Mr Naden. In any event, given that racist conduct is ultimately an objective issue, any alleged consciousness of guilt is of limited evidentiary weight.
125 The respondents’ justification defence depends on a finding that the use of the Rolling Sound, in context, had the objective effect of elevating the abuse to abuse directed at Mr Naden in a manner that was different, generally adverse and in a way that was offensive or otherwise objectionable, because of his race or some feature attributed to his race.
126 I am satisfied that the evidence given by the applicants themselves is sufficient to find that they and other members of the Group engaged in targeted and vigorous sledging or verbal abuse of Mr Naden. The critical question for determination is whether the combination of the Rolling Sound and the sledging directed at Mr Naden from Bay 4 constitutes racial abuse.
127 The answer to that question turns on an objective characterisation of the context in which the Rolling Sound was made. The making of the Rolling Sound in and of itself could not objectively be an act of racial abuse or racial vilification.
128 The respondents seek to rely on the Dance as evidence of the kind of conduct that the applicants and the other members of the Group were engaged in inside the Stadium and the video of the Dance as a second form of racial abuse directed at Mr Naden because the applicants allowed the conduct of which Mr Naden complained about inside the Stadium to be published on social media.
129 The videos in evidence illustrate how the Rolling Sound was made by Mr Perry in Bay 8 at the time that the Group was ejected from the Stadium and by Mr Pene and Mr Townsend during the Dance outside the Stadium. There was no video evidence of the Rolling Sound being made from Bay 4 by any member of the Group.
130 As I conclude above at [104], I am satisfied that the Rolling Sound made by Mr Perry in the course of the ejection from the Stadium was to demonstrate support for the Warriors and was not directed at Mr Naden. I accept the following evidence given by Mr Perry in the course of his cross examination immediately after he was shown a video of the applicants being removed from the Stadium:
MR SIBTAIN: And you’ve seen – you’ve seen about – if we can go back, perhaps without the sound, just about a second. We will stop there. You saw that when you were shouting out “Go the Warriors” and hooting, you made that sound, made the rolling sound after you had done the hooting?---Yes.
Yes. And that’s the cultural aboriginal sound that you had identified - - -?---Yes.
- - - previously. And you were looking out – it looked like you were looking out onto the field at the time?---Yes.
And what you were doing, can I suggest, was not just showing your proud support of the warriors on that night, but voicing your annoyance at being ejected?---No. The warriors had just made a good play at that time, and trapped Penrith in the in-goal, I think it was.
So they had just made a good play, had they?---Yes.
Yes. And you were going – you were shouting out “Go the Warriors”?---Yes.
What was the addition of the rolling sound, how did that add to it?---Just cheering in the warriors.
But the warriors are a New Zealand team?---What does that supposed to mean?
The Warriors are not an indigenous Australian team, are they?---No.
Why do – what’s your explanation for doing the rolling sound?---Don’t have one.
You don’t have one?---Why not?
131 The evidence given by Mr Perry is inherently plausible. The video shows him turning to the field of play and then shouting enthusiastically “Go the Warriors” and then immediately making the Rolling Sound. The absence of any discernible pause demonstrates that the Rolling Sound is plainly being used to reinforce his excitement with the Warriors’ move on the field rather than expressing any annoyance at being ejected or any attempt to abuse Mr Naden. It comes across as a spontaneous exhortation of support, not racial abuse or vilification. The fact that the Warriors is not an “Indigenous Australian team” and Mr Perry’s response that he does not have an explanation for why he did the Rolling Sound does not relevantly detract from the context in which he made the sound. Mr Perry is of Indigenous Australian heritage and was making a sound that he was familiar with. I accept his evidence, given the context in which he made the Rolling Sound, that it was made as a “war cry”, as an instinctive show of support, not a considered selection of a culturally relevant or appropriate method to show support for the Warriors. Moreover, it is inherently implausible that Mr Perry was making the Rolling Sound as a form of racial abuse or mockery given that he was effectively standing next to a police officer at the time he was being ejected from the Stadium.
132 Mr Naden gave the following evidence in chief about his reaction when he first saw the video of the Dance:
So you remember seeing some video on social media; is that correct?---Mmm.
And is there anything you remember about the video?---I remember that video they were swearing and yelling out “F the Panthers” making a noise and doing the shake a leg. That’s the dance we call it – what it’s called, and yes.
I’m just going to have played for you exhibit A3 just watch this. Video played.
VIDEO SHOWN
MR SIBTAIN: That’s the video that you saw?---Yes.
How did that make you feel?---Once again, I was quite angry.
Why did that make you feel angry?---Obviously they – this group of men made that noise at the ground and then to go and – I don’t know, gloat it on social media, yes, I was pretty pissed off – sorry, your Honour
133 I accept Mr Naden’s evidence that when he saw the video of the Dance on social media, particularly given that it was combined with the video of Mr Pene shouting “F*** the Panthers”, he was angry.
134 Mr Townsend gave the following evidence, that I accept, as to why he performed the Dance:
You knew, at the time that you did this dance, that Brent Naden’s complaint about racism that had been reported was the reason why you had been kicked out. You knew that, didn’t you?---Yes.
And you weren’t happy about it, were you?---Yes. I was not happy.
No[t] happy about it. And by doing that dance, I’m going to suggest that you and the group were mocking Brent Naden?---No, we – we were not mocking Brent Naden. I’ve had racism to myself for being a brown-coloured young man at school, during football – to myself. I’ve done Aboriginal dances since I was young. I’ve been out bush. I’ve been at men’s camps – like, Aboriginal Indigenous men’s camps. Indigenous NAIDOC weeks. Like, going to the events for the NAIDOC week. Do you know what NAIDOC week is, your Honour?
HIS HONOUR: Yes?---Yes. Going to those and, like, participating [in] the Aboriginal knockouts. Like – and no, I – like, I would never disrespect my own culture, or any culture.
MR SIBTAIN: You were, on this occasion, mocking a particular person, Brent Naden, for your ejection from the game?---No, I was not mocking.
Well, you were doing that dance as a response to your ejection from the game, weren’t you? As a reaction to your rejection from the game?---To – to show that I was proud to be an Aboriginal person.
135 This evidence of Mr Townsend is compelling, persuasive and consistent with the video of the Dance that is in evidence, as I also found the following evidence given by Mr Thurston about why he participated in the Dance:
You were expressing your dissatisfaction at being thrown out of the game, because of a report of racial abuse?---No, I was just joining in with a dance with my two mates. No, I felt welcome.
At this stage, you knew – I’m sorry, did you want to volunteer something else?---Yes, I said I felt welcome to do that dance through Aboriginal males. Both have learnt how to grow up and do this. I’ve done this around them before, I feel comfortable being able to join in and do this. I’ve learnt how to do this as well. You –look at the dance. They’re – it’s obviously not their first time of doing it. So they–they’re not mocking anything. You can see that they know how to do this dance.
136 I also accept the following denials given by Mr Perry when challenged as to his reasons for joining in the Dance:
And I’m going to suggest to you that when you did this video, this was a second act of defiance on your part and also Cherokee’s and Will’s and Zion’s part, for being chucked out of the – out of the stadium; do you agree with that?---No.
You were mocking Brent Naden - - -?---No. How - - -
- - - by doing this?---How am I mocking Brent?
I’m just asking, do you agree, were you mocking him or not?---No.
137 I am not persuaded that the Dance or the video of the Dance relevantly sheds any light on the character of the sledging or abuse directed by the Group at Mr Naden in the Stadium.
138 First, it is readily apparent that the making of the Rolling Sound outside the Stadium by Mr Pene and Mr Townsend is made as an integral aspect of the Dance. There is nothing to suggest that it was being made in any way that was disrespectful or culturally insensitive.
139 Second, there was no evidence that any of the applicants were aware that Mr Pene, or any other person, proposed to post the video to social media or proposed to post the video combined with the separate recorded statement by Mr Pene directed at the Panthers. Such evidence, given the addition in the social media post of the “F*** the Panthers” video clip made by Mr Pene, may well have been consistent with the respondents’ contentions that the applicants’ performance of the Dance provided evidence from which it could be inferred that the making of the Rolling Sound from Bay 4 was performed in a mocking or derogatory manner, rather than as an expression of Indigenous Australian culture.
140 Third, the more compelling and plausible inference is that the three participants in the Dance, Mr Thurston, Mr Townsend and Mr Perry were outraged to hear that they had been ejected for racial vilification and were, as submitted by the applicants, and consistently with the evidence given by Mr Townsend in cross examination, proudly declaring their Aboriginal heritage or identification with Indigenous Australians by performing a traditional Aboriginal dance combined with the Rolling Sound to demonstrate that they are not racist.
141 I accept that the evidence of Ms Cowie and Mr Walford is admissible on the basis that the evidence is capable of rationally affecting, but only in an indirect manner, the assessment of a central fact in issue, namely whether the Group racially abused Mr Naden and relatedly might be consistent with the contention that the Rolling Sound was used in a mocking way rather than in a celebratory way or as a show of pride as suggested by Mr Townsend.
142 The evidence given by Ms Cowie and Mr Walford that they heard members of the Group shout the words “brudder”, “black” and “domestic violence” from Bay 4, however, provides only limited context to the circumstances in which the Rolling Sound was made from Bay 4. Significantly, neither gave evidence that the words were combined with the making of the Rolling Sound nor that they even heard any member of the Group make the Rolling Sound.
143 Moreover, the subjective nature of their evidence is apparent from the content of their 15 August 2020 email to Ms Murphy in which they stated:
At this stage [the fans abusing Mr Naden] attention was directed solely to Brent Naden and they continued to yell out loudly to Brent with the same type of accent using such terms as “Brudder” instead of brother, and appeared to us to be attempting to sound Indigenous. …
We were trying to focus on the game and ignore them so we could not categorically state exactly what they were yelling out although it was clear they were not words of encouragement but rather they were taunting him . We did hear the word ‘black’ and “brudder” used frequently and at one point the phrase ‘domestic violence’ was used, although we could not state in what context.
144 More objective evidence of the nature of the abuse directed at Mr Naden by the Group from Bay 4 is provided by a short video clip tendered in evidence of the Bay 4 Group abusing Mr Naden in which the words “brother”, not “brudder”, and “bro” are clearly discernible. The audio of the video makes plain that the words were not shouted in a mocking or disrespectful manner, but rather in an attempt to attract Mr Naden’s attention in the same manner that other persons might shout “hey mate”, or similar expressions, to attract someone’s attention.
145 Nor can shouting the name Malcom Naden either in itself or at or about the time that the Rolling Sound was made from Bay 4 elevate the sledging and abusive comments made by the Group to racial abuse. Given Malcolm Naden’s notoriety as a convicted murderer, shouting his name at Mr Naden was objectively highly offensive but not evidence of racist abuse or contextual evidence from which a finding of racial abuse could be made.
146 Finally, I do not accept that the evidence of the verbal abuse directed by the Group towards the Panthers’ trainer, Mr Knowles, could provide any material support for a finding that any of the pleaded imputations was substantially true. An acknowledgement of an awareness that racism would not be tolerated or a denial of engaging in racist abuse cannot constitute racist abuse or vilification.
147 For the foregoing reasons, I am not satisfied that there is a sufficient evidentiary basis to conclude that, in context, the making of the Rolling Sound in Bay 4 by a member of the Group, or on the other two occasions I have found that it was made, elevated or otherwise had the effect of converting the vigorous sledging of Mr Naden into racial abuse or racial vilification.
148 The respondents have not established that any of the pleaded imputations alleged to have been conveyed in the Fox Sports broadcast and the pleaded imputations that were ultimately pressed in the Channel 7 News Item and the Channel 7 Tweet was a matter of substantial truth. Each of those imputations conveyed actual guilt, not alleged guilt, and therefore for each to be a matter of substantial truth it was necessary for the respondents to establish that the applicants had engaged in racial vilification and racial abuse or made vile racist remarks. This included the imputations that each of the applicants is racist and each of the applicants was ejected from the Stadium for “racial abuse”, conveyed by the Fox Sports broadcast, and for making “vile racist remarks”, conveyed by the Channel 7 broadcasts.
149 Further, given that I am not satisfied that the applicants had engaged in any racial abuse or racial vilification, or made “vile racist remarks”, it necessarily follows that the respondents have not established that the imputations that each of them is racist, that I have found were conveyed by the Fox Sports broadcast, were substantially true.
150 It does not follow, however, that I do not accept that Mr Naden believed that he had been racially abused by members of the Group from the time that he heard the Rolling Sound. That belief may objectively have been mistaken for the foregoing reasons, but I am satisfied that Mr Naden did honestly and genuinely believe that he had been subjected to racial abuse by the applicants and other members of the Group.
D. Defence of qualified privilege
151 Given the qualified privilege defence was not pressed for the Channel 7 broadcasts and my conclusion that the Channel 9 broadcast did not convey any of the pleaded imputations, it is only necessary to consider the defence of qualified privilege pursuant to s 30 of the Act for the Fox Sports broadcast.
152 Fox Sports contends that the Fox Sports broadcast was published to persons who had an interest or apparent interest in receiving information on:
(a) the reports of racial abuse by Mr Naden (Naden Reports);
(b) the actions of match and NRL officials and the police in ejecting the applicants and other Group members from the Stadium (Actions);
(c) media statements issued by the Chief Executive Officer of the Warriors, Cameron George (Warriors Statement) and the Acting Chief Executive Officer of the NRL, Andrew Abdo (NRL Statement);
(d) comments made by the Panthers Head Coach, Ivan Cleary in a post-match press conference (Cleary Comments); and
(e) the general and longstanding issue of racism in Australian sport, particularly in the sport of rugby league,
(together, the Subjects).
153 Next, Fox Sports contends that the Fox Sports broadcast, understood in the context of the “Friday Night Footy” broadcast on the Fox League Channel (Friday Night Show), was published to viewers in the course of giving them information on the Subjects and its conduct in publishing the Fox Sports broadcast was reasonable in the circumstances.
154 Fox Sports provided the following particulars of the matters it relies on to contend that its conduct in publishing the Fox Sports broadcast was reasonable in the circumstances:
(a) the whole of the Friday Night Show, including the Fox Sports broadcast, and the manner in which it was researched, prepared and presented;
(b) the Friday Night Show, including the Fox Sports broadcast, were matters of legitimate and important public interest;
(c) the Friday Night Show, including the Fox Sports broadcast, comprised fair and accurate statements of the Naden Reports, the Actions, the Warriors Statement, the NRL Statement and the Cleary Comments;
(d) the Friday Night Show, including the Fox Sports broadcast, distinguished between allegations and proven facts;
(e) it was in the public interest for the Friday Night Show, including the Fox Sports broadcast, to be published expeditiously; and
(f) the Friday Night Show, including the Fox Sports broadcast, was published in the context of the business environment in which Fox Sports operates, namely news and sports reporting and sports broadcasting.
155 The applicants contend that the conduct of Fox Sports in publishing the Fox Sports broadcast was not reasonable and therefore Fox Sports cannot make out its defence of qualified privilege.
156 In addition, the applicants contend that if the Court were to find that the Fox Sports broadcast was published on an occasion of qualified privilege, Fox Sports’ conduct in publishing it was actuated by the improper purposes pleaded in the applicants’ reply to the Fox Sports defence. These improper purposes comprised a predominant motivation to injure the reputation of the applicants, making a wrongful assertion of racial vilification without making any attempt to obtain the applicants’ version of events and choosing language to ridicule the applicants in a public forum so as to injure their reputation and feelings and cause others to be suspicious of them and shun them.
157 At the relevant time, the defence of qualified privilege was set out in s 30 of the Act in the following terms:
30 Defence of qualified privilege for provision of certain information
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—
(a) the recipient has an interest or apparent interest in having information on some subject, and
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
(a) the extent to which the matter published is of public interest, and
(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and
(c) the seriousness of any defamatory imputation carried by the matter published, and
(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and
(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and
(f) the nature of the business environment in which the defendant operates, and
(g) the sources of the information in the matter published and the integrity of those sources, and
(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
(i) any other steps taken to verify the information in the matter published, and
(j) any other circumstances that the court considers relevant.
(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.
158 If the defence of qualified privilege under s 30(1) of the Act is established by a respondent, the onus shifts to the applicant to prove by way of defeasance that the publication of the defamatory matter was actuated by malice: s 30(4) of the Act. The defence will not be defeated merely because the defamatory matter was published for reward: s 30(5) of the Act.
159 Section 30(3) of the Act sets out a non-exclusive list of factors that the Court may take into account in determining whether the conduct of the respondent in publishing the matter complained of was reasonable in all the circumstances: Leyonhjelm v Hanson-Young (2021) 282 FCR 341; [2021] FCAFC 22 at [58] (Rares J, in dissent but not on this issue). The list of factors should not be approached inflexibly as it is neither exhaustive, nor mandatory: Rush v Nationwide News Pty Ltd [2018] FCA 357 at [139] (Wigney J); Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at [30] (Gleeson CJ and Gummow J).
160 As a general rule, the conduct of a respondent in publishing a defamatory matter will be reasonable if they had reasonable grounds for believing the imputations to be true, took proper steps reasonably open to them to verify the accuracy of the material and did not believe the imputation to be untrue: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 at 574 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ). Reasonableness does not require a standard of perfection, not least because it only arises if the imputations in question are not true and the conduct of the respondent is not beyond criticism: Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; [2015] FCA 652 at [228] (White J).
161 In most cases, the more serious the imputation that is conveyed, the greater the obligation on the respondent to ensure that its conduct in relation to the publication was reasonable: Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [109] (Wigney J), citing Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387 (Hunt AJA, Samuels JA agreeing).
162 In the usual course, the conduct of the respondent will not be reasonable unless they sought a response from the person defamed and published any response made, except when it is not practicable or it was unnecessary to give the applicant an opportunity to respond: Lange at 574, citing Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; [1994] HCA 45 at 252-253 (Brennan J); Herron v HarperCollins Publishers Australia Pty Ltd (2022) 292 FCR 336; [2022] FCAFC 68 at [188]-[192] (Rares J, Wigney and Lee JJ agreeing).
163 A defence of qualified privilege that has been established pursuant to s 30 of the Act may be defeated if the applicant can establish that the publication of the matter complained of was actuated by malice: s 30(4) of the Act. Express malice is any improper motive or purpose that induces a respondent to use an occasion of qualified privilege to defame an applicant. The evidence or the publication must show a ground for concluding that any ill-will, lack of belief in the truth of what was published, recklessness, prejudice, bias or other motive existing on the privileged occasion, also actuated the publication: Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [76] (Gaudron, McHugh and Gummow JJ).
164 It is not sufficient for an applicant to establish that the publication was actuated in part by an improper motive, a respondent is entitled to the protection of the privilege unless an applicant can prove the publication was actuated by a dominant and improper motive on the part of the respondent: Horrocks v Lowe [1975] AC 135 at 149 (Lord Diplock).
D.3. Evidence directed at qualified privilege defence
165 Fox Sports relied on the evidence of the following witnesses in support of their qualified privilege defence:
(a) Tony Chalmers, a Fox Sports side line producer at the Match;
(b) Matt Russell, a side line commentator for Fox Sports at the Match;
(c) Michael Sullivan, the producer of the Friday Night Show, who was located at the Fox Sports studio in Artarmon;
(d) Ms Yates, a member of the Fox Sports commentary team, who was located at the Fox Sports studio in Artarmon; and
(e) Mr Alexander, a member of the Fox Sports commentary team, who was located at the Fox Sports studio in Artarmon,
(together, qualified privilege witnesses).
166 All of the qualified privilege witnesses gave evidence orally in chief and were cross examined.
167 Each of Mr Chalmers, Mr Russell and Ms Yates answered all questions put to them authoritatively and without prevarication or equivocation. Each was an impressive witness and I had no reason not to accept their evidence. Their evidence was persuasive and consistent with the apparent logic of events and I accepted that it was given truthfully to the best of their respective recollections.
168 Mr Alexander appeared to have a very limited recollection of the circumstances in which the Fox Sports broadcast was published and I found his evidence of limited assistance.
169 Mr Sullivan was not an impressive witness. He had a pronounced tendency to resist answering questions in cross examination directly. He claimed to have little recollection of a broadcast that must have stood out for him given the seriousness of the issues addressed, the tone of the broadcast and because he could not recall any other occasion on which he had produced a programme for Fox Sports that included a report of racial vilification. His prevarication and reluctance to answer questions in cross examination is amply demonstrated in the following exchange with his cross examiner about the insertion of the words “No tolerance” and “Fans ejected for racial abuse aimed at Brent Naden” in the Fox Sports broadcast:
MR RASMUSSEN: Mr Sullivan, I’m not talking about who was physically doing the typing?---Yes.
I’m talking about the person who made the decision to use those words that we see at the bottom of the screen; was that you or a different person?---In this instance?
Yes. In this instance?---I don’t remember.
You don’t recall? You were the production manager at the studio; is that right?---The producer, yes.
The producer. In the normal course you’re the person who makes that decision, aren’t you?---Yes.
Is it fair to say that you are the person who decided – who decided to use those words that we see at the bottom of the screen?---In that – particular instance, no.
Yes. In that instance?---No.
Was there another person responsible for it?---I don’t remember.
170 It is implausible that Mr Sullivan has no more specific recollection of who produced the Fox Sports broadcast given its obvious significance and the notoriety of its content, and his attempt to sow some seeds of doubt as to who might have produced it reflects poorly on his credit. To the extent that there was any inconsistency in the evidence of Mr Sullivan and Ms Yates, I accepted the evidence of Ms Yates.
171 The evidence given by the qualified privilege witnesses was also relevant to the honest opinion defence advanced by Fox Sports.
172 Ms Yates was the presenter of the Friday Night Show in 2020. She would sit alongside two or three expert panellists. Ms Yates and her expert panellists would do a pre-game show, a half-time show for the first match, either a “recap” of the first match or a preview of the second match, a half-time show for the second game and then a post-game show following both matches.
173 Ms Yates and her expert panellists broadcast their segments of the Friday Night Show from the Fox Sports studio at Artarmon in Sydney. At the conclusion of the pre-game show and as the live broadcast of the first match commenced, Ms Yates and her expert panellists would leave the studio and move to what was called the “green room”. Ms Yates and her expert panellists would then watch the first match on the television screens in the green room until they left the green room approximately ten minutes before half time to return to the studio to present the half-time show.
174 By the time Ms Yates would return to the studio there was typically two to three minutes before the half-time show would go to air. In that time, Ms Yates would turn her microphone on, put her earpiece in, hair and make-up artists would do their final touches, production staff would attend to any necessary matters in the studio and Ms Yates would receive a briefing through her earpiece from her producer of the information to be covered in the half-time show.
175 The Friday Night Show broadcast on 14 August 2020 was approximately six and a half hours in length. Ms Yates was joined by former NRL players Mr Alexander and Cooper Cronk as her expert panellists and Mr Sullivan was the producer of the show. The first match broadcast was the Match and the second match broadcast was between the Parramatta Eels and the St George Illawarra Dragons (Second Match).
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.
185 The footage of the ejection of the applicants and other members of the Group was not replayed in any of the subsequent reporting in the Friday Night Show that evening of the alleged racial vilification and racial abuse of Mr Naden.
D.4.7. Warriors and NRL Statements
186 At 7.00 pm, the Chief Executive Officer of the Warriors, Mr George, released the Warriors Statement. The Warriors Statement was in the following terms:
We do not condone any sort of racial remarks towards anyone playing rugby league or in general and we completely support a tough stance against this behaviour.
The NZ Warriors embrace all cultures and race and proudly promote inclusiveness of all cultures and race in our great game.
187 At 7.51 pm, the Acting Chief Executive Officer of the NRL, Mr Abdo, released the NRL Statement. The NRL Statement was in the following terms:
STATEMENT FROM NRL ACTING CEO ANDREW ABDO
Racism and vilification will not be tolerated in our game.
Bringing communities and cultures together is part of rugby league.
We pride ourselves on being inclusive and taking a leadership role in driving social change.
Any fan found to have racially abused a player or another fan will not be welcome at our games.
We have shown in the past that we will take the strongest possible action to ensure fans guilty of racial abuse are banned from attending the Telstra Premiership.
We will work closely with NSW Police, stadium authorities and the clubs to determine the facts and take decisive action against anyone guilty of racial abuse.
Later tonight, I will call any player involved to ensure they are receiving the support they need. We will always stand by our players.
188 At approximately 7.52 pm, in the segment of the Friday Night Show broadcast between the Match and the Second Match, Ms Yates informed viewers that in the half time break in the Second Match, there would be a cross back to Mr Russell at the Stadium for an update on the allegations of racial vilification arising from the Match. Ms Yates was instructed by Mr Sullivan to make that announcement. Ms Yates did not know anything at that stage about the content of the proposed cross to Mr Russell.
D.4.8. Post-Match Press Conference
189 Shortly after the end of the Match, the Head Coach of the Panthers, Mr Cleary, attended a post-match press conference (Post-Match Press Conference) in which he made the Cleary Comments in the course of the following exchanges with two journalists:
Journalist 1: Ivan, some ugly allegations of racial vilification directed towards Brent Naden. Firstly and most importantly, how is Brent?
Cleary: Yeah Brent’s, he’s OK. He said that it’s not the first time he’s heard that in his life but I think in this forum it has been, so he’s a little bit…he took it certainly took offence to it at the time but he’s ok now.
Journalist 1: It would have been easy for him not to say anything, I imagine. How much pride do you have in him for standing up to that?
Cleary: Well, it’s one of those situations, I guess, that you can only react how you feel at the time. So whatever was said, I don’t know exactly what was said, it definitely affected him, and by the sounds of it the appropriate action was taken and what happens from here, I’m not too sure.
Journalist 1: It must be immensely disappointing that you create club history but you have to share that publicity with this ugly storyline.
Cleary: Uh yeah, well it’s two different things, but obviously this incident is worth talking about for sure…As I said, I don’t really know the exact details. It’s obviously a big deal and there’ll need to be some sort of investigation that goes into it. After that our main objective at the moment is just making sure Brent’s alright, um yeah, where we go from there I’m not too sure.
Journalist 2: How is he?
Cleary: He’s OK, yeah he’s OK. It definitely affected him. He even said, you know, he didn’t expect it to affect him, he was a bit surprised that he was affected like that, so I don’t know what that means. I don’t know whether what was said was something more than what he was happy with … but he’s okay.
190 At approximately 8.51 pm, during the half-time show in the Second Match, Ms Yates introduced the cross back to Mr Russell for an update on the “alleged racial abuse” that had occurred in the Match and then at approximately 8.53 pm the half-time show returned to Ms Yates in the studio. Ms Yates commenced her segment by stating the NRL was “swiftly calling out this alleged abhorrent behaviour” and then read extracts from the NRL Statement and the Warriors Statement. The extracts appeared intermittently on the screen while Ms Yates was reading from them. There was no repetition of the coverage of the ejection of the Group from the Stadium. Mr Sullivan provided Ms Yates with the information about the NRL Statement and the Warriors Statement.
191 At approximately 10.04 pm, in the course of the post-game show, Ms Yates reintroduced the 8.51 pm cross back to Mr Russell, the cross with Mr Russell was then replayed, Ms Yates then read from and otherwise summarised extracts from the NRL Statement and the Warriors Statement, and the Cleary Comments were then played. Mr Sullivan instructed Ms Yates to play those exchanges in the Post-Match Press Conference.
192 Fox Sports advances the following principal submissions in support of its qualified privilege defence.
193 First, it submits that the information reported by Ms Yates and Mr Alexander in the Fox Sports broadcast was the same information reported by Mr Naden to Mr Knowles and Mr Catterick. It submits that there was no degradation or distortion in the essential integers of the information conveyed by Mr Naden to Mr Knowles and Mr Catterick and the only additional information was that the applicants had been ejected from the game, a matter established by the footage of their ejection. It submits that the information broadcast by Fox Sports was “no more and no less” than the information reported by the victim of the conduct, Mr Naden, that had been passed up through the production and commentary team.
194 Second, Fox Sports submits that an assessment of the reasonableness of its conduct must take into account that the Fox Sports broadcast was part of a live broadcast of some five hours duration.
195 Third, it submits that the omission of the word “alleged” at various times would not lead to a conclusion that the conduct of Fox Sports was unreasonable given it had been made clear to the viewer that a report had been made and that an investigation was to take place.
196 Fourth, it submits that there can be little doubt that a report of racial abuse of an Indigenous Australian player in an NRL game was an important matter of public interest warranting expeditious reporting.
197 The applicants submit that Fox Sports’ conduct in publishing the Fox Sports broadcast was not reasonable and therefore the qualified privilege defence advanced by Fox Sports must fail. They submit that the exact composition of the Fox Sports broadcast was wholly within the power and control of Fox Sports, including the vision to be used, the words spoken and the text to be inserted on the screen, known as “visual integrations”. They submit that given the fact being reported in the Fox Sports broadcast was only a report of racial abuse made by Mr Naden, it was unnecessary and unreasonable for Fox Sports to have broadcast the vision of the ejection of the Group from the Stadium in which each of the applicants was clearly identified. They submit that there was no apparent imperative to publish the vision of the applicants and had the Fox Sports broadcast been limited to a report that some fans had been ejected from the Match following a report of racial abuse by Mr Naden, without vision of the ejection, Fox Sports “would have no case to answer”.
198 Fox Sports contends that viewers had an interest or apparent interest in the Naden Reports, the ejection of the Group, including the Actions, the content of the Warriors Statement, the content of the NRL Statement, the Cleary Comments and the general and longstanding issue of racism in Australian sport and by spectators of Australian sport, in particular NRL.
199 I am comfortably satisfied that the viewers of the Fox Sports broadcast had an interest or apparent interest in receiving information on each of those subjects. Racial abuse at major sporting fixtures in Australia is a matter of considerable public concern and interest as demonstrated not least by the unequivocal condemnation of racial abuse in the Warriors Statement and the NRL Statement in response to the Naden Reports and the speed with which those media statements were issued.
200 I am also satisfied the information was provided to viewers in the Fox Sports broadcast in the course of giving them information on those reports.
201 I am not satisfied, however, that the conduct of Fox Sports in publishing the Fox Sports broadcast was reasonable in the circumstances.
202 I accept that the matters the subject of the Friday Night Show, including the Fox Sports broadcast, were matters of legitimate and important public interest, it was generally in the public interest for the Friday Night Show, including the Fox Sports broadcast, to be published expeditiously, and the Friday Night Show, including the Fox Sports broadcast, was published in the context of the business environment in which Fox Sports operates, namely news, sports reporting and sports broadcasting.
203 I accept that it would not have been unreasonable for Fox Sports to broadcast that there had been a report of racial abuse by Mr Naden without making any enquiries of the persons alleged to have engaged in the racial abuse. The Fox Sports broadcast was essentially a live broadcast, the subject matter was a significant matter of public interest and the report of racial abuse came from the person to whom it was alleged to have been directed.
204 I also accept that (a) the manner in which the Friday Night Show, other than the Fox Sports broadcast, was researched, prepared and presented was reasonable, (b) the Friday Night Show, other than the Fox Sports broadcast, comprised fair and accurate statements of the Naden Reports, the Actions, the Warriors Statement, the NRL Statement and the Cleary Comments, and (c) the Friday Night Show, other than the Fox Sports broadcast, distinguished between allegations and proven facts.
205 The Fox Sports broadcast, however, unlike the balance of the Friday Night Show, conveyed to viewers that there had been racial abuse, not that there had been a report of racial abuse. It commenced with the statement by Ms Yates that “[u]nfortunately we do have to report some unacceptable behaviour at Central Coast Stadium tonight from these [W]arriors fans” and while those words were being said, images were broadcast of the applicants and other members of the Group being ejected from the Stadium by police and the words “Fans ejected for racial abuse aimed at Brent Naden” were shown on screen. That the broadcast was in substance stating there had been racial abuse, not a report of racial abuse, was then further emphasised by the subsequent statement of Ms Yates that “[e]ight men in their early twenties racially vilifying Brent Naden tonight”.
206 The statement by Ms Yates that Mr Naden had reported to a Panthers trainer that he was racially vilified by “these fans” in isolation could well have been characterised as limited to a report of racial abuse, but that statement must be assessed in the context of the Fox Sports broadcast as a whole.
207 Moreover, it was not reasonable to broadcast images of the applicants and other Group members and to identify them so clearly as “the fans” and “these fans” who had racially abused Mr Naden given the only information that had been conveyed from Mr Knowles and then the Fox Sports production team was that Mr Naden had reported that he had been racially abused and that Mr Knowles had pointed out to Mr Gare the fans who Mr Naden had told Mr Knowles had been racially abusing him. Fox Sports did not have any information independently of Mr Naden that he had in fact been the subject of racial vilification or racial abuse at the Match.
208 The serious ramifications for the applicants’ reputations if they had engaged in racial abuse must have been self-evident to Fox Sports. The decision to broadcast their images and insert the words “Fans ejected for racial abuse aimed at Brent Naden” in circumstances where the information available to Fox Sports was that Mr Naden had reported being racially abused was not reasonable.
209 I do not accept that the subsequent reporting of the alleged racial abuse in the Friday Night Show could justify a finding that the conduct of Fox Sports in publishing the Fox Sports broadcast was reasonable in the circumstances, for the following reasons.
210 First, the subsequent reporting of the alleged racial abuse, as summarised at [190] and [191] above, occurred more than an hour after the broadcast of the Fox Sports broadcast. Equally significant, it first occurred in the half-time show of the Second Match. On no view could it be assumed that all sports fans of the Panthers and the Warriors would be interested in watching a match between two other NRL teams. Nor could it be assumed that all sports fans of the Panthers and the Warriors would be interested in rejoining or staying with the Friday Night Show until the post-game show more than two hours after the Fox Sports broadcast went to air.
211 Second, the subsequent reporting of the alleged racial abuse highlighted the unreasonableness of the Fox Sports broadcast. Ms Yates, Mr Alexander and Mr Russell assiduously only referred to alleged racial abuse in the subsequent reporting and the image of the applicants and other Group members being ejected from the Stadium were not rebroadcast. Moreover, the subsequent reporting included objective reporting of the various statements made by the NRL, the Warriors and the Panthers’ coach.
212 The qualified privilege defence advanced by Fox Sports must be rejected.
213 Given my conclusion that Fox Sports has not made out its qualified privilege defence to the Fox Sports broadcast, it is not necessary to address the applicants’ contentions that Fox Sports’ publication of the Fox Sports broadcast was actuated by an improper motive or improper motives.
214 Given the honest opinion defence was not pressed for the Channel 7 broadcasts and my findings that the Channel 9 broadcast did not convey any of the pleaded imputations, it is only necessary to consider the defence of honest opinion for the Fox Sports broadcast.
215 Fox Sports provided the following particulars of its honest opinion defence:
(a) the opinions were the opinions of the presenters of the Fox Sports broadcast, relevantly Ms Yates and Mr Alexander;
(b) the Fox Sports broadcast related to the Subjects that Fox Sports relied upon for its qualified privilege defence, each of which was a matter of public interest;
(c) the expressions of opinion were based on the Naden Reports, the images and footage of the Actions, the NRL Statement, the Warriors Statement and the Cleary Comments each of which was set out in specific or general terms in the Friday Night Show;
(d) the Naden Reports were published on an occasion of qualified privilege at common law, in that Mr 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;
(e) the Actions were matters of substantial truth, in that match officials, NRL representatives and the police ejected the applicants and other Group members in response to the Naden Reports; and
(f) the statements were made on occasions of qualified privilege pursuant to s 30 of the Act in that by reason of the Naden Reports and the Actions it was reasonable in all the circumstances for Mr George to make the Warriors Statement, Mr Abdo to make the NRL Statement, and Mr Cleary to make the Cleary Comments.
216 At the relevant time, the defence of honest opinion was set out in s 31 of the Act in the following terms:
31 Defences of honest opinion
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion 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.
(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) in the case of a defence under subsection (1) — the opinion was not honestly held by the defendant at the time the defamatory matter was published, or
(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) in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.
(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) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
(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.
217 In order to rely on the defence of honest opinion under s 31(2) of the Act, a respondent must prove that (a) the matter was an expression of opinion of an employee or agent of the respondent, rather than a statement of fact, (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material.
218 If a defence under s 31(2) is established, the onus shifts to the applicant to prove by way of defeasance that the respondent did not believe that the opinion was honestly held by the employee or agent at the time the defamatory material was published: s 31(4)(b) of the Act.
219 There are two matters within s 31(2)(a) of the Act which must first be addressed because they bear upon the determination of whether the matter was an expression of opinion of an employee or agent of the respondent rather than a statement of fact.
220 First, s 31(2)(a) of the Act directs attention to whether the matter was an expression of opinion or a statement of fact.
221 Section 4 of the Act relevantly defines matter in the following terms:
matter includes—
(a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and
(b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and
(c) a letter, note or other writing, and
(d) a picture, gesture or oral utterance, and
(e) any other thing by means of which something may be communicated to a person.
222 As White J observed in Dutton v Bazzi [2021] FCA 1474 at [70] (reversed on appeal but not on this aspect), “matter” as defined in s 4 of the Act, suggests that the defamatory matter in s 31 of the Act is to be construed as a reference to the medium by which the defamatory imputation is conveyed rather than the defamatory imputation itself. In contrast, the common law defence of fair comment on a matter of public interest focuses on the defamatory meaning found to have been conveyed: Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at [83] and [85] (Gummow, Hayne and Heydon JJ).
223 The relevant question, therefore, is whether the matter would have been understood by the ordinary reasonable reader to be an expression of opinion rather than a statement of fact. This question is necessarily contextual and requires consideration of the meaning found to be conveyed in the matter but it is not constrained or dictated by their terms, so as to transform into a consideration as to how each imputation would be understood: Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 at [131] (Lee J).
224 Second, the Act distinguishes between an expression of opinion and a statement of fact. An opinion is not defined in the Act.
225 An opinion has been understood to refer to “a deduction, inference, conclusion, criticism, judgment, remark, observation”: John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [25] (Giles JA) citing Gatley on Libel and Slander, 10th ed, 2004, at [12.6]; New South Wales v IG Index plc (2007) 17 VR 87; [2007] VSCA 212 at [48] (Nettle JA); Stead at [128].
226 The distinction between facts and opinions can be elusive. As Giles JA stated in O’Shane at [27]:
There cannot be a clear line between comment and statement of fact. Many defamatory words have elements of fact, conclusion from facts and expression of opinion. A characterisation must nonetheless be made, and the context and circumstances of the use of the words will be important.
227 The foundational passage for a discussion of qualified privilege at common law was stated by Simpson AJA in Wraydeh v Fairfax Media Publications Pty Ltd (2021) 105 NSWLR 254; [2021] NSWCA 153 at [37] to be the following statement by Parke B in Toogood v Spyring (1834) 149 ER 1044 at 1049-1050:
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.)
228 In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5, Gleeson CJ, Hayne and Heydon JJ, after observing that the statement of Parke B in Toogood was frequently referred to in discussions of the principles to be applied in determining whether a statement was made on an occasion of qualified privilege, stated at [10]:
These principles are stated at a very high level of abstraction and generality. ‘The difficulty lies in applying the law to the circumstances of the particular case under consideration.’ Concepts which are expressed as ‘public or private duty, whether legal or moral’ and ‘the common convenience and welfare of society’ are evidently difficult of application. When it is recognised, as it must be, that ‘the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact’, it is clear that in order to apply the principles, a court must ‘make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication’.
(Citations omitted.)
229 More recently, qualified privilege at common law was described in the following terms in the joint judgment of French CJ, Gummow and Hayne JJ in Atkas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; [2010] HCA 25 at [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.
230 Fox Sports submits that the relevant opinions in the Fox Sports broadcast were based on material that was substantially true or published on an occasion of qualified privilege. In summary, Fox Sports submits that the opinions expressed in the Fox Sports broadcast were based on proper material in that they were based on (a) Mr Naden’s reports which were published on an occasion of common law qualified privilege and (b) the actions of Mr Knowles, the NRL ground manager and police and security in ejecting the group, each of which were matters of substantial truth.
231 Fox Sports submits that the comments made by Ms Yates in the Fox Sports broadcast that the racial abuse reported by Mr Naden was “absolutely unacceptable” and “a disgrace” and the comments made by Mr Alexander, that he had prefaced with the words “if it’s true”, would be understood by the reasonable viewer to be expressions of opinion.
232 Fox Sports submits that the relevant occasion of qualified privilege at common law that is sufficient to support the defence of honest opinion in the Fox Sports broadcast is the report by Mr Naden to Mr Knowles that he was the subject of racial abuse by a group of spectators. They submit that first, there was an obvious commonality of duty or interest in Mr Naden, as a player, reporting to Mr Knowles, the Head of Performance at the Panthers with responsibility for the performance of players during games, second, Mr Naden had a duty or interest to report racial abuse to Mr Knowles and Mr Knowles had a corresponding duty or interest to receive such a report, and third, the content of the report made by Mr Naden to Mr Knowles was “self-evidently germane or connected to the privileged occasion”. They submit that the same privileged occasion arose when Mr Naden made his second report to Mr Knowles, which led to the ejection of the Group from the Stadium.
233 The applicants submit that the defence of honest opinion cannot succeed because all that is stated is a conclusion of racial vilification without any indication to the ordinary reasonable viewer of any particulars of that conclusion. The applicants submit that the comments made in the Fox Sports broadcast by Ms Yates and Mr Alexander could not relevantly be understood as opinions for the purposes of a defence of honest opinion as there was no disclosure of the detailed facts, including the making of the Rolling Sound, to support those comments being made.
234 The applicants submit that the relevant communication for the purpose of determining whether the Fox Sports broadcast was published on an occasion of common law qualified privilege was the discussion between Mr Sullivan and Ms Yates, not that between Mr Naden and Mr Knowles. They submit that the discussion between Mr Sullivan and Ms Yates was not sufficiently proximate to the allegation or opinion that was expressed because Mr Sullivan did not pass on to Ms Yates that it was only an allegation of racial abuse.
235 Further, the applicants submit that Fox Sports could not have had any reason to believe the comments made by Ms Yates and Mr Alexander were genuine opinions held by them because it must have been aware that they were relying entirely on what Mr Sullivan had told them and had not conducted any independent assessment.
236 For convenience, I set out again the content of the Fox Sports broadcast:
[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, thats [sic] the end of those blokes. They've just watched their last live game.
[Ms Yates]: Absolutely at this point ...
[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].
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. In the light of the Naden Reports and the Actions it might readily be concluded that it was reasonable in all the circumstances for Mr George to make the Warriors Statement, Mr Abdo to make the NRL Statement, and Mr Cleary to make the Cleary Comments but that does not assist Fox Sports in establishing its honest opinion defence. I do not accept, however, that the opinions expressed by Ms Yates and Mr Alexander could have been based on any of the Warriors Statement, the NRL Statement and the Cleary Comments. At the time the Fox Sports broadcast was televised, the NRL Statement had not been issued, the Post-Match Press Conference had not yet taken place and there was no evidence that either Ms Yates or Mr Alexander was aware of the Warriors Statement.
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.
246 The applicants seek damages, including aggravated damages by reason of their knowledge of the falsity of the pleaded imputations, against the respondents on the basis that they have been greatly injured in their character, credit and personal, business and professional reputation and have been brought into public hatred, ridicule and contempt. The applicants also seek interest pursuant to s 51A and s 52 of the Federal Court of Australia Act 1976 (Cth), including interest on costs.
247 The respondents contend that to the extent that the applicants are found to be entitled to damages, they rely in each of their defences, on the following facts, matters and circumstances in mitigation of damages:
(a) the circumstances in which it is proved the matters complained of were published;
(b) the facts, matters and circumstances proved in evidence in support of the defences pleaded in the defences;
(c) the substantial truth of such of the pleaded imputations that are found to be true;
(d) the substantial truth of such of the particulars of truth as are found to be true; and
(e) such other evidence as is properly admitted at trial.
248 In the light of my findings with respect to the claims advanced against Fox Sports and Channel 9, it is only necessary to address damages for the publication of the Channel 7 News Item by Channel 7 and the Channel 7 Tweet by Seven Network.
249 The principles relevant to the award of damages for non-economic loss in defamation cases are well settled and were not in dispute. I recently summarised those principles in Callan v Chawk [2023] FCA 898 at [176]-[180] in the following terms.
250 Damage to the reputation of the defamed person is presumed and need not be specifically proved by the defamed person: Ratcliffe v Evans [1892] 2 QB 524 at 528-530 (Bowen LJ). In practice, the presumption of at least some damage is effectively irrebuttable: Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 at [32] (Lord Phillips of Worth Matravers MR); Bristow v Adams [2012] NSWCA 166 at [20]-[31] (Basten JA).
251 The three purposes of an award of general damages are (a) consolation for the personal distress and hurt caused to the defamed person, (b) recompense for damage to personal and, if relevant, business reputation, and (c) vindication of reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61 (Mason CJ, Deane, Dawson and Gaudron JJ); Rogers at [60] (Hayne J, Gleeson CJ and Gummow J agreeing). The first two purposes are often considered together because they account for the wrong done to the applicant. The third purpose, vindication, looks to the attitudes of others: Carson at 60-61; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [70]-[78] (Tobias and McColl JJA). As to vindication, the sum of the damages award should be “sufficient to convince a bystander of the baselessness of the charge”: Cassell & Co Ltd v Broome [1972] AC 1027 at 1071 (Lord Hailsham of St Marylebone LC); Ali at [75].
252 The reputation of the person defamed, the extent of the publication and the seriousness of the defamatory sting are relevant considerations in assessing damages: Nationwide News Pty Ltd v Rush (2020) 380 ALR 432; [2020] FCAFC 115 at [387]-[393] (White, Gleeson and Wheelahan JJ); Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674; [2018] VSCA 154 at [165] (Wilson J).
253 Allowance should also be made for the “grapevine effect” which recognises that the dissemination of defamatory material is rarely confined to those to whom it is immediately published, the tendency of the “poison” in the defamatory publications to “percolate through underground passages and contaminate hidden springs” or to be “driven underground” only later to emerge from their “lurking place”: Rush (No 7) at [786] (Wigney J) and the cases cited therein; Webster v Brewer (No 3) [2020] FCA 1343 at [44] (Gleeson J).
254 The Court is required by s 34 of the Act to ensure that there is an appropriate and rational relationship between the harm sustained and the amount of damages of awarded.
255 An award of aggravated damages may be made where a respondent’s conduct towards an applicant is found to have been improper, unjustifiable or lacking in bona fides: Triggell v Pheeney (1951) 82 CLR 497 at 514 (Dixon, Williams, Webb and Kitto JJ).
256 Further, as the Full Court explained in Nationwide News Pty Ltd v Rush (2020) 380 ALR 432; [2020] FCAFC 115 at [431] (White, Gleeson and Wheelahan JJ) (Rush FC), a respondent’s conduct after publication may be relied on as evidence both of malice at the time of publication and as improperly aggravating the harm to the person defamed, citing the following summary of the principles applicable to aggravated damages by Nourse LJ in Sutcliffe v Pressdram Ltd [1991] 1 QB 153 at 184:
The conduct of a defendant which may often be regarded as aggravating the injury to the plaintiff’s feelings, so as to support a claim for “aggravated” damages, includes a failure to make any or any sufficient apology and withdrawal; a repetition of the libel; conduct calculated to deter the plaintiff from proceeding; persistence, by way of a prolonged or hostile cross-examination of the plaintiff or in turgid speeches to the jury, in a plea of justification which is bound to fail; the general conduct either of the preliminaries or of the trial itself in a manner calculated to attract further wide publicity; and persecution of the plaintiff by other means.
257 A bona fide defence that has been advanced properly or justifiably in the circumstances known to a publisher cannot be taken into account in an award of aggravated damages: Rush FC at [432].
258 Each of the applicants gave evidence of the impact of the broadcasts of the matters complained of. The manner in which the applicants gave this evidence was both compelling and persuasive. It was not challenged in cross examination and it was consistent with the inherent logic of events given the seriousness of the imputations that I have found to have been conveyed and the applicants’ connections with Indigenous Australians and their culture.
259 The applicants’ evidence was corroborated by unchallenged evidence, that I accept and that is more fully set out below in the factual findings, from their relatives and friends of their observations of the impact of the publication of the matters complained of on the applicants. The applicants relied on affidavits from (a) Renette Burgess, the grandmother of Mr Townsend, (b) Belinda Relf, a friend of Mr Renner, (c) Brooke Van der Zwan, the former girlfriend of Mr Thurston, (d) Ebony Renner, the sister of Mr Renner, (e) Emma Komaisavai, the mother of Mr Renner, (f) Kisha Mohomed, the aunt of Mr Townsend, (g) Maryanne Gwyn, a friend of Mr Townsend’s aunt, (h) Sonny Black, the uncle of Mr Townsend, (i) Jake Harper, a friend of Mr Thurston and Mr Renner, (j) Russell Hughan, a friend of Mr Thurston and Mr Renner, (k) Colin Thurston, the father of Mr Thurston, (l) Stacey Townsend, the aunt of Mr Townsend, (m) Peter Townsend, the father of Mr Townsend, (n) Nicholas Kelly, a friend of Mr Renner, (o) Jennifer Patane, a friend of Mr Renner, and (p) Ty Hillyard, a friend of Mr Renner. These witnesses gave evidence as to when they first heard about the ejections, commentary they saw online, their reactions to the coverage, and the negative impact they observed that the coverage had on the applicants.
260 Additionally, Mr Xerri, gave evidence orally, that I accept, that he had observed that Mr Thurston was “very happy, always keen to do stuff”, but after the Match he was “the complete opposite … didn’t want a bar of no one, didn’t want to go out”. Similarly, Mr Xerri gave evidence that Mr Renner was “a happy lug” and a “people person” but that after the Match he did not see Mr Renner for a couple of months at least, and when he did speak to him he “seemed pretty sad, mopey …”.
261 Mr Pirini also gave evidence in chief to the same effect, that I accept, that to his observation Mr Renner was “a little bit more withdrawn” and “wasn’t as happy” after the Match.
262 Mr Kakato gave evidence in chief, that I accept, that to his observation Mr Renner’s character “drastically and dramatically changed” in the time following the Match. Mr Kakato observed that at a rugby game following the Match, Mr Renner “wasn’t wearing what he would normally wear”, his “whole demeanour … was completely different”, “his facial hair was gone”, and “his hat was down low on his head”. Mr Renner resided with Mr Kakato for a period of around 12 months in the months following the Match. During this period, Mr Kakato observed that Mr Renner “box[ed] himself up in four walls in a bedroom” and “deleted his social media”.
263 Neither Channel 7 nor Seven Network called any witnesses on damages issues.
264 Mr Thurston gave the following evidence, that I accept, of telephone calls that he had with his parents after the media had reported the outcome of an investigation by the NRL integrity unit into the allegations of racial vilification of Mr Naden in the Match:
Okay. Do you remember something your mother told you?---Yes. She was embarrassed and she was disappointed that all of her friends and family – well, her friends and family have called her asking why – why I have apologised to Brent Naden for racial abuse.
Okay. And what did you say to that?---I explained to my mum again that we did nothing wrong. I was – I was upset, she was upset. I told her that nothing was wrong. I told her that I’m trying to fix this. I’ve done everything in my right means to fix this, trying to cheer her up and just trying to bring back a bit of light to her life because she was in a bad place at that point in time.
Okay. And you’ve indicated your father rang you, is that right?---Yes.
What did he say to you?---He had the same situation as my - - -
No, no, no. No, no, no. What did he say to you?---He said my uncles and aunties are calling him, asking what has happened, why have I apologised for racial abuse to Brent Naden.
Okay. Did he say anything else?---He was also disappointed in me. And why – why did that come out in the statement.
Did you – and what was your reaction to – to those things told to you by your mother and father? What were you - - -?---Well, I told them that I did not apologise for any abuse – racial abuse – to Brent Naden and that it was sledging.
Okay. What – how did you feel, that your parents rang you and expressed these words to you?---Like I was saying yesterday, I wouldn’t wish that upon anyone, to have their parents call up and be crying on the phone to them and being that upset. I didn’t want to put them through any more grief than they’ve been through.
265 Mr Thurston stopped working for three to four months after the publication of the matters complained of. At one time during that period he was confronted by an Indigenous Australian man at a service station who recognised him and said, “there he is, that’s the dog there” and then approached Mr Thurston in an aggressive manner that caused Mr Thurston to return to his car and lock the doors.
266 When Mr Thurston resumed working, he was recognised as a person who had been ejected from the Match for making racist comments and his name on the work site became “the racist dog”, a name that was constantly used to refer to him while he was working.
267 Mr Harper, who has known Mr Thurston for about 10 years, gives evidence that Mr Thurston is a “social guy in general” but that after the Match and the media attention afterwards, Mr Thurston’s “whole attitude changed”. Mr Harper would “ask him to come out with me to do things and Will would decline”. Mr Harper also gives evidence that his father called him the same weekend of the Match and asked “[i]s that your mates on the news that were being racist?”.
268 Mr Hughan observed that Mr Thurston became “less friendly and less outgoing” after the Match.
269 Ms Van der Zwan, who was Mr Thurston’s girlfriend at the time, observed that directly following the Match, Mr Thurston appeared “to be overwhelmed by the situation and very worried”. Ms Van der Zwan noticed a “dramatic change” in Mr Thurston after the incident, as he appeared to her to be “depressed and messed up”. She noted that their relationship “went downhill”. Ms Van der Zwan also gave evidence that Mr Thurston told her that he was recognised at work and “copping shit at work on site”.
270 Mr Thurston’s father, Colin Thurston, gave evidence that he was contacted by each of his three brothers, sister, his eldest daughter, his eldest son, and niece shortly after the Match, advising him that they had seen Mr Thurston on television being ejected for racism, asking whether this was true, and asking what had happened that night. Colin Thurston was also asked by people at job sites, whether it was his son “that was kicked out of the football for being racist”.
271 Mr Townsend gave evidence, that I accept, of the following conversations that he had with his father and grandmother after the publication of the matters complained of:
Okay. Was your father speaking to you about things that have been told to him?---Yes. Yes. He said a couple of family members – a couple of family members didn’t – like, saw what happened on the TV and they were telling – telling him that is – like, “Is that your boy on TV for being racist?” And Dad said, “Yes.” 20 And they said, “Well, you’ve got to pull your son up about that.”
Okay. And how did you feel about knowing that your father was being told these things about you? How did you feel?---Yes. More angry than anything, that like others will – like your dad – your dad – from extended family, then has come to my dad, who is the Aboriginal one and who I was looking up to, like doing all these – like all these Aboriginal dance stuff and go – go out bush with him and then – and then he’s getting told that I’ve been racist. I’ve – I was very angry. A bit nervous. Just – it’s just not right. This is – this is wrong.
…
Now, do you recall whether your grandmother spoke to you and said anything to you?---Yes. Well, she – my nan, she got – she got message from her cousin, but, like, my second cousin or third cousin, Tyson Car, saying, like, “You need to pull” – excuse my French, your Honour. “You need to pull your [f…ing] grandson up. He’s being racist on TV,” and like – like all that type of stuff, you know, from – like, my nan getting that. Who explained – telling me that. You would think, like, myself, hearing that from my own nan and my father, like, I just wanted to, like, pull my hair out. Like – I was – like, it’s just your – like it’s hard to explain, but it’s [f…ing] – a very bad feeling. Like you – I’m sorry. This is – this is hard to explain. I wouldn’t know how to explain it to you.
272 Mr Townsend felt humiliated and angry when members of his family told him he was a racist. He was approached by a member of the public in a social setting who asked him whether he was “one of the boys at the football game where Brent Naden was getting racist abuse” and he believed the person wanted to “fight me”.
273 In October 2020, Mr Townsend moved to Queensland. He gave the following explanation, which I accept, for his move to Queensland:
Was there a reason why you moved to Queensland?---Because I was getting all this – this hate stuff and all this, like, media and this – in the – like – like if you knock – accidentally knock into people who has seen – who has seen the broadcast and all the channels and stuff and also the social media, people seeing you, like in – because it’s a – New South Wales is a big – a big rugby league state, people are going to recognise you heaps. So I moved out to get away from that.
274 Ms Mohomed, who is Mr Townsend’s aunt, recalls numerous people approaching her in the weeks and months following the Match. Some of those people would say words to the effect of “[d]on’t worry, we don’t believe it about [Mr Townsend]”, whereas others would say “[w]hat did he say, he wouldn’t get kicked out for nothing”. Ms Mohomed gives evidence that she has always known Mr Townsend to be polite and respectful, and that he has that reputation around their community, however, after the Match, the community “questioned him as a person, and they appeared to doubt his integrity”.
275 Ms Burgess, who is Mr Townsend’s grandmother, gives evidence that she was “absolutely appalled” that Mr Townsend was being “accused of vilification of another Aboriginal person, let alone his cousin”. She observed that Mr Townsend “seemed deflated and very disappointed that anyone could think, that as an Aboriginal person, he would act that way and vilify another Aboriginal person especially a cousin”. Ms Burgess describes Mr Townsend as an “upbeat and cruisy person” before the Match, but that he “lost that for awhile” and “became more serious instead of being happy go lucky”, and appears more “sombre” now.
276 Mr Black, who is Mr Townsend’s uncle, spoke to Mr Townsend on the phone shortly after the Match, after Mr Black had seen videos of the ejection on Facebook and various comments on those videos. Mr Black observed that Mr Townsend “sounded broken” and “very upset”.
277 Stacey Townsend, who is Mr Townsend’s aunt, saw Mr Townsend a few weeks after the Match, and observed him to be “frustrated and angry about the situation”. She observed that Mr Townsend was “more withdrawn and much quieter”.
278 Peter Townsend, who is Mr Townsend’s father, and also Mr Naden’s cousin, received a phone call from one of his cousins during the Match advising him that Mr Townsend was “all over the TV”. Peter Townsend had received telephone calls and messages through Facebook asking him about what happened. He gives evidence that this caused conflict between his family and cousins, as they believed that Mr Townsend had said something racist towards Mr Naden.
279 Mr Renner received a death threat on the day after the ejection of the applicants from the Stadium. He felt embarrassed and devastated at being labelled a racist and was further embarrassed when family members, parents of children he coached at rugby, and people in Forster he went to school with, commented on the coverage. Mr Renner did not leave his house for five to six weeks because he “was scared for my life” and “did not want to be picked out of the crowd again and pointed at, and things like that, out in public, so [he] thought it was the safest option to stay in [his] room”.
280 Upon returning to play rugby, Mr Renner gave the following evidence, that I accept, of his experiences when he returned to rugby after not playing for five to six weeks after the publication of the matters complained of:
And the first time you went back to play rugby, what happened?---I was – well, once again, disguised in a hoodie and hat, standing behind the bench. I’ve talked to one of the coaches. And then I’m standing behind the second-grade bench and they’ve turned around and said, “What are you doing here? You’re not allowed to be here. You’re a racist.”
And what was your response to that?---“I’ve done nothing. I’m not.” And then, once I’ve started to play, I’ve heard the opposition say, “Hit the racist dog. What are you doing? You’re racist. You’re not allowed to play.”
281 When Mr Renner returned to work and attended a landscaping job in Penrith, he was scared and nervous that someone would recognise him, and consequently, did not step out of the car for an hour.
282 Mr Renner’s friend, Ms Relf, gives evidence that she saw the Channel 7 News Item on television a day or so after the Match. She also saw posts about the incident on Facebook, including posts by mutual friends who went to school with herself and Mr Renner, sharing the various posts and articles, including some who tagged Mr Renner and commented that he was a “dog”. Ms Relf describes Mr Renner as “a loud, out there, enthusiastic person” who had a good reputation in the community. She believes that Mr Renner’s reputation had “taken a hit” and that she was “scared for him at times”.
283 Ms Komaisavai, who is Mr Renner’s mother, gives evidence that on the day after the Match, Mr Renner was “an absolute mess” and appeared anxious. Ms Komaisavai deleted her Facebook account because she saw posts with comments saying “[t]hey obviously weren’t raised well” and she was concerned that people would find her on Facebook.
284 Ebony Renner, who is Mr Renner’s sister, gives evidence that she had called Mr Renner in the days after the Match but Mr Renner would not return her calls. She visited him and his house but he did not want to talk about what happened and had said that he had to delete social media due to receiving death threats. On one occasion she invited Mr Renner out for dinner but he did not want to go because he did not want to be recognised.
285 Mr Hillyard, Mr Renner’s friend, described Mr Renner as being “terrified” when he visited him. He also recalled that Mr Renner had changed his telephone number a number of times. Mr Hillyard performs work for some of the people who play football with Mr Renner, and many of them asked Mr Hillyard about the Match, mentioning what they had seen on social media about Mr Renner being racist. Mr Hillyard observed that following the Match, Mr Renner was not as confident as he was and “he sounds flat”.
286 Mr Kelly, a friend of Mr Renner, was watching the Match live from home, and started receiving messages and phone calls shortly after the broadcasts asking “[w]as that Josh on the TV?”, “[i]s that your mate on the TV?”. Mr Kelly attempted to contact Mr Renner “at least 20 times” over the period of a week after the Match, but could not reach him. Mr Kelly observed that when he was able to get in touch with Mr Renner about a week after the game, “he sounded stressed”. Mr Kelly also observed that Mr Renner is a “proud Warriors supporter” and would always wear a Warriors jersey and hat, but when they went for a walk to the beach in the weeks following the incident Mr Renner was in plain clothes, wore a jumper to cover up his tattoos, and wore a hat pulled down to try cover his face.
287 On 15 August 2020, Channel 7 broadcast the Channel 7 News Item on its 7 News Sydney programme. The 7 News Sydney programme on 15 August 2020 was broadcast to an average audience of 353,533 viewers in New South Wales.
288 In the period between 15 August 2020 and 30 June 2021, Seven Network published the Channel 7 Tweet. The Channel 7 Tweet had 6,382 impressions (being the number of times people saw the tweet on Twitter) and 735 views (being the number of times people played the video embedded in the tweet).
289 The applicants submit that, consistently with the principle stated in Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735 at 737-738 (Hunt J), it can be assumed, in the absence of any evidence of adverse public findings against them, each was a person of general good reputation.
290 They submit that there should be a separate award of damages for each publication complained of for each applicant. Given my findings in relation to the defences advanced by Fox Sports and my conclusion that the Channel 9 broadcast did not convey any of the pleaded imputations, the only relevant publications for an award of damages are the Channel 7 broadcasts.
291 The Channel 7 News programme in which the Channel 7 News Item was broadcast had a significant audience and although the twitter publication by Channel 7 was relatively small it enabled the defamatory content to be more easily disseminated via social media and the internet. The applicants submit that given the evidence of the ubiquity of the matters complained of on social media there can be no doubt that each of the matters complained of were published to a wide and extensive audience beyond the audience figures admitted by each respondent.
292 The applicants submit that the imputations had a significant effect on them and for an extended period of time, particularly given each of them had a close connection and appreciation of Indigenous Australian and Māori culture. They submit the public reaction to their identification was threatening and robust and vindication for the falsity of the imputations is a significant consideration.
293 The applicants accept that while damages in other cases provide limited assistance to the Court, they submit it might be noted that in publications of serious imputations to a wide and extensive audience, an award of $390,000 was made for imputations which conveyed reasonable suspicion of having committed war crimes in Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 and, an award of $275,000 was made for imputations conveyed in twitter publications of operating a pump and dump scheme in Kumova v Davison (No 2) [2023] FCA 1.
294 The applicants submit that prejudgment interest in defamation cases is usually awarded at between 3-4% per annum, citing a number of cases from the New South Wales Supreme Court. They submit that prejudgment interest at a rate of 4% is appropriate given that much of the harm was caused at the date of publication largely due to the social media and internet coverage, and the identification of the applicants in the coverage of their ejection from the Stadium.
295 The respondents submit that much of the affidavit evidence relied upon by the applicants on damage to reputation is of no assistance to the Court because the deponents of the affidavits do not identify the specific publications that they had seen and those publications might have been entirely unrelated to the publications the subject of these proceedings.
296 The respondents submit that the evidence of Mr Harper is an example of this issue. They submit that Mr Harper gives evidence of having gone on Facebook and seen articles about Mr Thurston and that Mr Renner had been tagged in comments on those articles but Mr Harper does not identify where he went on Facebook, what articles he saw or how the articles conveyed Mr Thurston was “getting kicked out for racism” or how Mr Renner was tagged and what the comments had said.
297 They submit that this type of evidence has no probative value and should either be excluded pursuant to s 135 of the Evidence Act 1995 (Cth), or at the least, given limited weight pursuant to s 136.
298 I am satisfied by reason of the factual findings that I have made at [264] to [286] above, that the applicants have established that the imputations that I have found to have been conveyed by the Channel 7 broadcasts have significantly injured them in their character, credit and personal and workplace reputation and have brought them into public hatred, ridicule and contempt.
299 I accept that imputations that a person has made “vile racist remarks” to an Indigenous Australian NRL player and that a person has been ejected from an NRL game for making “vile racist remarks” are objectively less serious imputations than an imputation that a person “is racist” or is “a racist”. The latter imputation speaks directly to a person’s overall character, the former imputations speak to a person’s conduct on a specific occasion.
300 Nevertheless, given contemporary community standards and attitudes, including a general abhorrence of racist conduct, imputations that a person has made “vile racist remarks” to an Indigenous Australian NRL player and has been ejected from an NRL game for making “vile racist remarks” are inevitably likely to have a significant harmful impact on their reputation. A significant, but proportionate, award of general damages is necessary to console a person defamed by such imputations for personal distress and hurt caused to them, recompense them for damage to their reputation and vindicate their reputation.
301 I am satisfied that the applicants have established that each of them has been subjected to serious personal distress and harm by reason of the publication of reports stating that they had made vile racist remarks to Mr Naden, an Indigenous Australian NRL player, and had been ejected by the police from the Stadium midway through the Match for making those vile racist remarks.
302 I accept that the applicants and the other witnesses relied on by the applicants on damages do not differentiate between the matters complained of in giving evidence as to the injuries to the applicants’ characters, the impact on their reputation with family, friends and in the workplace, and how the publications led to them being regarded in the community more generally with hatred, ridicule and contempt.
303 Given the extent of the overlap in the subject matter of the matters complained of and the imputations pleaded, however, together with the largely contemporaneous timing of the publications, it is not surprising that the applicants did not attempt to describe or otherwise break down the impact of each publication in such a manner. Any attempt to have done so would inevitably have been an inherently artificial and speculative exercise.
304 Each of the matters complained of was directed at the same reports of racial vilification and racial abuse made by Mr Naden and extracts from the same video of the applicants’ ejection from the Stadium were broadcast in the Fox Sports broadcast, the Channel 7 News Item and the Channel 9 broadcast and in the embedded video in the Channel 7 Tweet. Further, the subsequent social media commentary on Facebook and on the internet referred to in the evidence relied upon by the applicants reproduced the same reports of racial vilification and included screen captures of the original video footage televised in the matters complained of. For these reasons, I do not accept the respondents’ submissions that most of the affidavit evidence relied upon by the applicant is of no assistance to the Court because it does not seek to identify specific publications that they might have seen.
305 Moreover, unlike the Channel 9 broadcast and although to a lesser extent, the Fox Sports broadcast, the Channel 7 broadcasts did not report the racial vilification or abuse as racial vilification or abuse that was alleged to have been undertaken by the applicants. Rather the Channel 7 broadcasts only reported without any qualification that the “Sickening new video” showed several young men “making a series of vile racist remarks towards NRL Star Brent Naden” and that the NRL had launched an investigation after racial slurs had been “made against Panther’s Star”.
306 The Channel 7 News Item was published to a wide public audience and although the number of impressions and views of the Channel 7 Tweet were comparatively much lower, they were nevertheless significant and could readily be expected to give rise to the grapevine effect, not only because of the platform on which they were published but because of the length of time the Tweet remained on Twitter. Further, there is no question of over compensation because the applicants have not recovered, and by reason of the orders to be made in these proceedings will not recover, any damages from any of the other respondents, that would be referrable to any overlap in viewers who had seen both the Channel 7 broadcasts and one or more of the other matters complained of.
307 The only particular of aggravated damages advanced by the applicants was their knowledge of the falsity of the imputations. This cannot support an award of aggravated damages. Although several older authorities accepted that an applicant’s knowledge of the falsity of imputations can be relied on as an aggravating circumstance, including Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58 at 75 (Hunt J) and Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 738 (Walsh JA), that is no longer the case. Rather, knowledge of falsity is now a matter that is generally taken into account in assessing compensatory damages: Dutton at [202] (White J), citing Barrow v Bolt [2013] VSC 226 at [23] (Beach J); V’Landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500 at [187] (Wigney J); Rush (No 7) at [779] (Wigney J) and Hockey at [505] (White J).
308 At the same time, the matters that the respondents relied on in mitigation of damages cannot assist Channel 7 and Seven Network.
309 Channel 7 and Seven Network led no evidence of the circumstances in which the Channel 7 broadcasts were published. Nor did they press the qualified privilege and honest opinion defences that had been pleaded with respect to both the Channel 7 News Item and the Channel 7 Tweet.
310 As I have concluded at [148] above, neither of the imputations that I have found to be conveyed in the Channel 7 broadcasts was substantially true. The presumption of innocence is well understood by the ordinary reasonable viewer or reader. An allegation of having made “vile racist remarks”, or engaged in racial vilification or racial abuse is a fundamentally different imputation to a statement that a person has made vile racist remarks, particularly when it was stated that there was a “Sickening new video showing several young men making a series of vile racist remarks” (emphasis added) combined with the words “Vile racist NRL Video” appearing on a screen accompanied by video footage of the men being ejected from a sporting stadium by uniformed police officers.
311 I have concluded that taking all of the foregoing reasons into account, an appropriate award of damages to be awarded to each applicant is a single amount of $200,000 pursuant to s 39 of the Act against Channel 7 and Seven Network jointly with respect to the two imputations that I have found were conveyed in the Channel 7 News Item and the Channel 7 Tweet. I am satisfied that a single award is appropriate given that Channel 7 and Seven Network are closely related, the content of the two publications was essentially the same and I have found the same imputations were conveyed by both publications and a single award avoids over compensation.
312 I consider an award of $200,000 for each applicant is a substantial sum of money that is sufficient for any ordinary person to understand that the imputations were not true and should never have been published by Channel 7 and Seven Network.
313 Each of the applicants is to be awarded an aggregate sum of $200,000 in damages together with pre-judgment interest calculated in accordance with the Court’s “Interest on Judgments” Practice Note (GPN-INT), from 15 August 2020 against Channel 7 and Seven Network for their respective publications of the Channel 7 News Item and the Channel 7 Tweet. The proceedings against Fox Sports and Channel 9 are otherwise to be dismissed.
314 Subject to any submissions to the contrary, I propose to make orders that (a) the applicants pay 50% of the costs of Fox Sports given Fox Sports was unsuccessful on defamatory meaning, justification and qualified privilege and only succeeded on honest opinion, (b) the applicants pay the costs of Channel 9, and (c) Channel 7 and Seven Network are to pay the applicants’ costs. I appreciate that given the common representation of the respondents such orders may give rise to practical issues with costs because Channel 9 and Fox Sports would be entitled to at least some of their costs and Channel 7 and Seven Network would be liable to pay the costs of the applicants. The parties will be given an opportunity to make submissions and file evidence in support of any alternative costs orders.
I certify that the preceding three hundred and fourteen (314) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley. |
Associate:
SCHEDULE OF PARTIES
NSD 826 of 2021 | |
TCN CHANNEL NINE PTY LTD (ACN 001 549 560) | |
Seventh Respondent: | NINE NETWORK AUSTRALIA PTY LTD ACN 008 685 407 |
Eighth Respondent: | NINE DIGITAL PTY LTD ACN 077 753 461 |
