Background
In August 2020, three spectators — William Thurston, Cherokee Townsend, and Joshua Renner — attended an NRL rugby league match in Gosford, New South Wales between the Penrith Panthers and the New Zealand Warriors. During the first half, NRL player Brent Naden, an Indigenous Australian playing for the Panthers, reported to team staff that he was being racially abused by a group of spectators that included the appellants. Based on those complaints, police escorted nine members of the group from the stadium. Fox Sports filmed the ejection and broadcast footage during the half-time show; Channel 9 broadcast its own segment later that evening.
The appellants sued Fox Sports, Channel 9, and Channel Seven for defamation, contending that each broadcast conveyed imputations that they were racist and had racially vilified Naden. At first instance, the primary judge found Channel Seven liable and awarded each appellant $200,000 in damages; Channel Seven did not appeal. As against Fox Sports, the primary judge found the defamatory imputations were conveyed but upheld Fox Sports’ honest opinion defence under s 31(2) of the Defamation Act 2005 (NSW). As against Channel 9, the primary judge found the pleaded imputations were not conveyed at all. William Thurston died in 2025 after first-instance judgment was delivered; his administrator ad litem prosecuted his appeal.
The primary judge’s factual findings were nuanced: he accepted that one member of the group (not the appellants themselves) had shouted the name “Malcolm Naden” — a reference to a distant relative convicted of murder and rape — and made a culturally significant “rolling sound” associated with Indigenous ceremony, and that Naden genuinely believed he had been racially abused. The primary judge also found, however, that from Bay 8 (where the appellants were seated at the time of ejection) the ongoing taunting lacked a clearly established racist character, and he did not find that the appellants personally made the most offensive remarks.
The Court’s Holding
The Full Court dismissed the first appellant’s appeal in its entirety. Because William Thurston died after judgment but before the appeal was resolved, s 10 of the Defamation Act 2005 (NSW) extinguished his cause of action. The estate’s administrator could not obtain damages or other substantive defamation relief; the appeal was therefore a nullity as to any substantive orders, though Channel 9 was ordered to pay the first appellant’s costs of the appeal.
As against Fox Sports, the Full Court upheld the primary judge’s conclusions. The Fox Sports broadcast — in which presenter Jessica Yates stated that the appellants had “racially vilified” Naden and commentator Greg Alexander said “these clowns should never get in an NRL game again” — was found to convey imputations of actual guilt, not merely suspicion. Nevertheless, the honest opinion defence under s 31(2) of the Defamation Act was correctly upheld: the commentary represented opinion based on stated facts, and the defence was not defeated. The appeal by Townsend and Renner against Fox Sports was accordingly dismissed.
As against Channel 9, the Full Court disagreed with the primary judge. The Channel 9 broadcast used qualifying language — “allegedly racially abusing,” “if they’re found guilty” — and the primary judge concluded those qualifiers meant imputations of guilt were not conveyed. The Full Court held his Honour erred: viewed as a whole and assessed through the eyes of the ordinary reasonable viewer, the Channel 9 broadcast nonetheless conveyed the pleaded imputations. Because the primary judge had not proceeded to consider Channel 9’s defences of justification (s 25) and statutory qualified privilege (s 30) — having found no imputation was made out — those defences remained untested. The Full Court allowed the appeal by Townsend and Renner against Channel 9 and remitted the matter to the primary judge for further hearing on those defences.
Key Takeaways
- Section 10 of the Defamation Act 2005 (NSW) extinguishes a cause of action in defamation upon the death of the plaintiff; an estate’s administrator ad litem cannot obtain damages or substantive relief on appeal, regardless of the merits.
- Qualifying language such as “allegedly” or “if found guilty” does not automatically prevent a defamatory imputation of actual guilt from being conveyed — the test is the overall impression created in the mind of the ordinary reasonable viewer of the broadcast as a whole.
- The honest opinion defence under s 31(2) of the Defamation Act can succeed for live broadcast commentary where the commentator expresses a genuine opinion based on facts stated or identified in the broadcast, even where those facts turn out to be disputed.
- Where a primary judge dismisses a defamation claim on imputation grounds without reaching the defendant’s substantive defences, a successful appeal on imputations results in remittal rather than entry of judgment for the plaintiff.
Why It Matters
This decision is a significant reminder to broadcasters that editorial choices about qualifying language carry real but limited legal protection. Inserting the word “allegedly” into a news segment will not insulate a defendant from defamation liability if the broadcast’s overall tenor — its images, tone, and framing — communicates guilt to the reasonable viewer. The case also reinforces the strict operation of s 10 of the Defamation Act: unlike most civil wrongs, a defamation cause of action does not survive the plaintiff’s death, meaning estates cannot prosecute or benefit from ongoing litigation.
For practitioners advising media clients, the case underscores that the honest opinion defence remains a viable shield for live sports commentary expressing robust views on reported facts, provided the opinion character of the statement is sufficiently apparent. The remitted Channel 9 proceedings will now test whether justification or qualified privilege can be established on the facts — questions that may ultimately turn on whether the underlying reports of racial abuse directed at the appellants personally were substantially true.