Thurston v Fox Sports Australia Pty Limited
[2025] FCA 54
•7 February 2025
FEDERAL COURT OF AUSTRALIA
Thurston v Fox Sports Australia Pty Limited [2025] FCA 54
File number(s): NSD 826 of 2021 Judgment of: HALLEY J Date of judgment: 7 February 2025 Catchwords: DEFAMATION – multiple publications – where applicants part of a group ejected from National Rugby League (NRL) match – whether certain broadcasts conveyed defamatory imputations to the effect that each applicant is racist and racially vilified or racially abused or made “vile racist remarks” towards a NRL player – overall impression created in the minds of the ordinary reasonable viewer – whether publications conveyed guilt or suspicion of guilt – meaning of “racist” – first, fourth and fifth matters complained of conveyed pleaded imputations
DEFAMATION – defence – justification – whether pleaded imputations substantially true pursuant to s 25 of the Defamation Act 2005 (NSW) (Act) – whether “sledging” directed to NRL player contained racial element – where respondents sought to rely on other conduct of applicants as evidence of the kind of conduct the applicants engaged in inside the stadium – imputations not substantially true
DEFAMATION – defence – statutory qualified privilege – whether first respondent’s broadcast was published on an occasion of qualified privilege pursuant to s 30 of the Act – whether first respondent’s conduct in publishing the broadcast was reasonable – where satisfied viewers had an interest or apparent interest in receiving information on relevant subjects – where information available to first respondent was the report of alleged racial abuse – where subsequent reporting could not justify a finding that first respondent’s conduct was reasonable in the broader circumstances – conduct of first respondent not reasonable
DEFAMATION – defence – honest opinion – whether the matters expressed in the imputations were the honest opinion of employees or agents of the first respondent rather than a statement of fact pursuant to s 31 of the Act – whether opinions of first respondent’s broadcasts were based on matters that were substantially true or published on an occasion of qualified privilege at common law – where dissemination of reports of alleged racial abuse sufficiently proximate to original disclosure – defence established
DEFAMATION – remedies – assessment of compensatory damages for non-economic loss
Legislation: Evidence Act 1995 (Cth) ss 135, 136
Federal Court of Australia Act 1976 (Cth) ss 51A, 52
Defamation Act 2005 (NSW) ss 4, 25, 30, 31, 39
Cases cited: Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Anderson v Mirror Newspapers Ltd(No 2) (1986) 5 NSWLR 735
Atkas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; [2010] HCA 25
Barrow v Bolt [2013] VSC 226
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5
Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674; [2018] VSCA 154
Bazzi v Dutton (2022) 289 FCR 1; [2022] FCAFC 84
Bristow v Adams [2012] NSWCA 166
Callan v Chawk [2023] FCA 898
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60
Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 218
Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185
Dutton v Bazzi [2021] FCA 1474
Feldman v Polaris Media Pty Ltd (as trustee of The Polaris Media Trust (trading as The Australian Jewish News)) (No 2) [2018] NSWSC 1035
Flood v Times Newspapers Ltd [2012] 2 AC 273; [2012] UKSC 11
Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165; [2002] NSWCA 41
Herron v HarperCollins Publishers Australia Pty Ltd (2022) 292 FCR 336; [2022] FCAFC 68
Hockey v Fairfax MediaPublications Pty Ltd (2015) 237 FCR 33; [2015] FCA 652
Horrocks v Lowe [1975] AC 135
Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946
John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164
John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; [2003] HCA 50
Kumova v Davison (No 2) [2023] FCA 1
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25
Lewis v Daily Telegraph Ltd [1964] AC 234
Leyonhjelm v Hanson-Young (2021) 282 FCR 341; [2021] FCAFC 22
Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374
Nationwide News Pty Ltd v Rush (2020) 380 ALR 432; [2020] FCAFC 115
Nationwide News Pty Ltd v Warton [2002] NSWCA 377
New South Wales v IG Index plc (2007) 17 VR 87; [2007] VSCA 212
Palmer v McGowan (No 5) (2022) 404 ALR 621; [2022] FCA 893
Ratcliffe v Evans [1892] 2 QB 524
Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729
Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
Rush v Nationwide News Pty Ltd [2018] FCA 357
Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223
Sands v South Australia (2015) 122 SASR 195; [2015] SASCFC 36
Schiff v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1120
Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; [1994] HCA 45
Sutcliffe v Pressdram Ltd [1991] 1 QB 153
Toogood v Spyring (1834) 149 ER 1044
Triggell v Pheeney (1951) 82 CLR 497
V’Landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500
Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58
Webster v Brewer (No 3) [2020] FCA 1343
Wraydeh v Fairfax Media Publications Pty Ltd (2021) 105 NSWLR 254; [2021] NSWCA 153
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 314 Date of hearing: 9-13, 16-19 October 2023, 13 November 2023 Counsel for the Applicants: Mr R Rasmussen Solicitor for the Applicants: AKC Legal Counsel for the Respondents: Mr D Sibtain SC with Mr T Senior Solicitor for the Respondents: Baker McKenzie ORDERS
NSD 826 of 2021 BETWEEN: WILLIAM THURSTON
First Applicant
CHEROKEE TOWNSEND
Second Applicant
JOSHUA RENNER
Third Applicant
AND: FOX SPORTS AUSTRALIA PTY LIMITED (ACN 065 445 418)
First Respondent
CHANNEL SEVEN SYDNEY PTY LTD ACN 000 145 246
Fourth Respondent
SEVEN NETWORK (OPERATIONS) LIMITED ACN 052 845 262 (and others named in the Schedule)
Fifth Respondent
ORDER MADE BY:
HALLEY J
DATE OF ORDER:
7 FEBRUARY 2025
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.
REASONS FOR JUDGMENT
A. INTRODUCTION
[1]
B. DEFAMATORY MEANING
[14]
B.1. Overview
[14]
B.2. Legal principles
[15]
B.3. Fox Sports broadcast
[24]
B.3.1. Publication and imputations
[24]
B.3.2. Consideration
[33]
B.4. Channel 7 News Item
[43]
B.4.1. Publication and imputations
[43]
B.4.2. Consideration
[46]
B.5. Channel 7 Tweet
[51]
B.5.1. Publication and imputations
[51]
B.5.2. Consideration
[54]
B.6. Channel 9 broadcast
[55]
B.6.1. Publication and imputations
[55]
B.6.2. Consideration
[57]
C. DEFENCE OF JUSTIFICATION
[61]
C.1. Overview
[61]
C.2. Legal principles
[65]
C.3. Evidence directed at justification defences
[68]
C.3.1. The applicants’ evidence
[68]
C.3.2. The respondents’ evidence
[74]
C.4. Factual Findings
[76]
C.4.1. Seating arrangements of the Group at the Stadium
[76]
C.4.2. Sledging of Mr Naden
[81]
C.4.3. Alleged racial abuse of Mr Naden
[87]
C.4.4. Initial complaint made by Mr Naden
[90]
C.4.5. Second complaint made by Mr Naden
[91]
C.4.6. Sledging of Mr Naden from Bay 8
[93]
C.4.7. Mr Knowles’ approach to the Group
[96]
C.4.8. Removal of the Group from the Stadium
[103]
C.4.9. The Dance
[107]
C.4.10. Summary of factual findings
[108]
C.5. Submissions
[110]
C.6. Consideration
[118]
D. DEFENCE OF QUALIFIED PRIVILEGE
[151]
D.1. Overview
[151]
D.2. Legal principles
[157]
D.3. Evidence directed at qualified privilege defence
[165]
D.3.1. Fox Sports’ evidence
[165]
D.4. Factual Findings
[172]
D.4.1. Friday Night show
[172]
D.4.2. Information provided to Mr Chalmers by Mr Knowles
[176]
D.4.3. Information provided to Mr Roach by Mr Chalmers
[178]
D.4.4. Directions given to Mr Gare
[179]
D.4.5. Information provided to Mr Sullivan by Mr Chalmers
[181]
D.4.6. Information provided to Ms Yates by Mr Sullivan
[182]
D.4.7. Warriors and NRL Statements
[186]
D.4.8. Post-Match Press Conference
[189]
D.5. Submissions
[192]
D.6. Consideration
[198]
E. DEFENCE OF HONEST OPINION
[214]
E.1. Overview
[214]
E.2. Legal principles
[216]
E.3. Submissions
[230]
E.4. Consideration
[236]
F. DAMAGES
[246]
F.1. Overview
[246]
F.2. Legal principles
[249]
F.3. Evidence
[258]
F.4. Factual findings
[264]
F.4.1. Impact on Mr Thurston
[264]
F.4.2. Impact on Mr Townsend
[271]
F.4.3. Impact on Mr Renner
[279]
F.4.4. Channel 7 broadcasts
[287]
F.5. Submissions
[289]
F.6. Consideration
[298]
G. DISPOSITION
[313]
HALLEY J:
A. INTRODUCTION
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).
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.
In this proceeding, the applicants bring claims against the respondents pursuant to the Defamation Act 2005 (NSW) (Act).
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.
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.
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.
Mr R Rasmussen of counsel appeared for all applicants at the hearing.
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.
Mr D Sibtain SC and Mr T Senior of counsel, appeared for all respondents at the hearing.
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.
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.
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.
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.
B. DEFAMATORY MEANING
B.1. Overview
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.
B.2. Legal principles
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].
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).
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).
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).
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.
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.
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).
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.
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. Fox Sports broadcast
B.3.1. Publication and imputations
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]
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.
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.
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.
First, each of the matters complained of referred or alluded to investigations by the police and the NRL into the incident.
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.
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.
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.
The respondents accepted that, if conveyed, each of the pleaded imputations was defamatory.
B.3.2. Consideration
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.
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.
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”.
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.
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.
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.)
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.
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).
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).
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. Channel 7 News Item
B.4.1. Publication and imputations
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]
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.
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.
B.4.2. Consideration
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.
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.
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.
It was common ground that each of the applicants is clearly identified in the video shown in the Channel 7 News Item.
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. Channel 7 Tweet
B.5.1. Publication and imputations
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 (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):
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.
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.
B.5.2. Consideration
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. Channel 9 broadcast
B.6.1. Publication and imputations
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]
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.
B.6.2. Consideration
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”.
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”.
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.
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.
C. DEFENCE OF JUSTIFICATION
C.1. Overview
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.
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).
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).
I address each of these contested alleged facts below.
C.2. Legal principles
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.
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).
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
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.
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.
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.
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.
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.
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
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.
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. Factual Findings
C.4.1. Seating arrangements of the Group at the Stadium
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.
The Stadium was only about a quarter full because of COVID-19 restrictions.
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.
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.
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.
C.4.2. Sledging of Mr Naden
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.
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”.
Ms Cowie gave evidence that she was seated in Bay 5 of the Stadium with her husband Mr Walford, and that she heard a group of men yelling words such as “black” and “brother” at Mr Naden and at one stage one of them mentioned the phrase “domestic violence”.
Mr Walford gave evidence that he heard a group of males yelling out quite loudly during the first half of the Match words like “black” and “brother”, the latter with an “Aboriginal type accent” that sounded like “bruddah”.
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”.
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
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.
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.
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
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
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).
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
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”.
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”.
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
Shortly after the Second Complaint, Mr Knowles approached the Group and exchanged words with them.
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”.
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”.
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”.
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”.
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.
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
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.
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.
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”.
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.
C.4.9. The Dance
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
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.
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)].
C.5. Submissions
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.
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”.
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.
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.
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.
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.
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.
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.
C.6. Consideration
Whether conduct is racist requires an objective and evaluative assessment: Molan at [142], [145]-[146] (Bromwich J).
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”.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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
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.
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.
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.
For the foregoing reasons, I have concluded that Fox Sports has established its defence of honest opinion with respect to the Fox Sports broadcast.
The claims made by the applicants against Fox Sports with respect to the Fox Sports broadcast must be dismissed.
F. DAMAGES
F.1. Overview
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.
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.
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.
F.2. Legal principles
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.
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).
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].
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).
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).
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.
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).
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.
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].
F.3. Evidence
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.
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.
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 …”.
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.
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”.
Neither Channel 7 nor Seven Network called any witnesses on damages issues.
F.4. Factual findings
F.4.1. Impact on Mr Thurston
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.
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.
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.
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?”.
Mr Hughan observed that Mr Thurston became “less friendly and less outgoing” after the Match.
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”.
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”.
F.4.2. Impact on Mr Townsend
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.
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”.
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.
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”.
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.
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”.
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”.
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.
F.4.3. Impact on Mr Renner
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”.
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.”
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.
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”.
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.
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.
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”.
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.
F.4.4. Channel 7 broadcasts
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.
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).
F.5. Submissions
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.
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.
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.
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.
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.
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.
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.
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.
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.
F.6. Consideration
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.
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.
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.
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.
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.
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.
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.
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”.
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.
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).
At the same time, the matters that the respondents relied on in mitigation of damages cannot assist Channel 7 and Seven Network.
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.
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.
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.
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.
G. DISPOSITION
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.
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:
Dated: 7 February 2025
SCHEDULE OF PARTIES
NSD 826 of 2021 Respondents
Sixth Respondent:
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
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