While Justice John Halley of the Federal Court accepted Naden genuinely and honestly believed he was racially abused, he was not satisfied the “vigorous sledging” by Thurston, Townsend and Renner was elevated into racial abuse or racial vilification.

A day after the police-escorted removal, Channel Seven reported there was a “sickening new video” that showed “several young men making a series of vile racist remarks towards [Naden]”.

Similar language was posted on X, then known as Twitter.

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In its justification defence, Seven said none of the pleaded imputations were conveyed, or was capable of conveying, a meaning the men were racist or engaged in racial vilification or racial abuse.

The video broadcasted was of the men being removed, but Justice Halley said this did not show any racist remarks towards anyone. The reference to the “new video” was a recording of Thurston, Townsend and another man dancing outside the stadium.

Justice Halley said the “overwhelming impression” created in the mind of an ordinary reasonable viewer would be that Thurston, Townsend and Renner made the “vile racist” remarks. Further, instead of suggesting the NRL would investigate if it occurred, Seven suggested the NRL would investigate what action it would take.

“I am satisfied, contrary to the respondent’s submissions, that the Channel Seven News Item was exclusively directed at guilt, not suspicion of guilt,” Justice Halley said.

Seven’s argument relied on a “rolling sound” made by the men in combination with the sledging, which they submitted elevated the conduct into racial abuse directed at Naden.

While they were being escorted out, one of the applicant’s friends made the rolling sound, but Justice Halley found this followed an enthusiastic “go the Warriors” shout and it “came across as a spontaneous exhortation of support, not racial abuse or vilification”.

The man’s evidence was he is of Indigenous Australian heritage and had made a sound he was familiar with.

“Moreover, it is inherently implausible [the man] was making the rolling sound as a form of racial abuse or mockery given that he was effectively standing next to a police officer,” Justice Halley said.

Seven also alleged the sledging turned “nasty and outright abusive” when the men allegedly shouted the name Malcolm Naden, a notorious figure and distant relative of the NRL star who was arrested and convicted of murder and rape in June 2013.

This was “highly offensive” given Malcolm Naden’s notoriety, but Justice Halley said it was “not evidence of racist abuse or context evidence from which a finding of racial abuse could be made”.

The final limb of Seven’s justification defence hinged on the video of the three men doing the Aboriginal “shake a leg” dance. In the background, the rolling sound was being made, which Justice Halley noted was an “integral aspect of the dance”.

Justice Halley said the most “compelling and plausible inference” to take from the video was the men were “proudly declaring their Aboriginal heritage or identification with Indigenous Australians by performing a traditional Aboriginal dance combined with the rolling sound to demonstrate that they are not racist”.

Defamation case against Fox Sports, Nine dismissed

Unlike the broadcast and publications by Fox Sports and Seven, Nine created an impression of suspicion of guilt, rather than guilt, due to its terms such as “alleged” and “allegedly”. The defamation case brought against Nine was not made out and was dismissed.

Justice Halley found the Fox Sports broadcast was “almost exclusively directed at guilt, not suspicion of guilt”.

The tone and language of its broadcast was “inherently judgmental, unequivocal and emotive”, particularly as presenters used language such as “unacceptable behaviour”, “there is absolutely no tolerance” and “these clowns should never get in an NRL game again”.

Justice Halley was satisfied the imputations were made out by the Fox News broadcast and an ordinary reasonable viewer would perceive Thurston, Townsend and Renner were racist.

While Fox Sports qualified privilege defence failed, it did succeed in its honest opinion defence, and the case against it was dismissed.

Given the statements were made by the presenters in relation to Naden’s reports of racial abuse, Justice Halley was satisfied they were opinions “genuinely held”. That an NRL player made a report was found to be “sufficient to support” the presenter’s opinions.

The case is Thurston v Fox Sports Australia Pty Limited [2025] FCA 54.