Lawyers for the Daily Telegraph have called the decision to award Geoffrey Rush $2.9m in damages after a series of defamatory articles about the Oscar-winning actor “extraordinary and absurd”, and based on “uncertain inferences from inexact proofs”.
On Monday the Telegraph through its parent company, Nationwide News, began its appeal against federal court justice Michael Wigney’s ruling that the Rupert Murdoch-owned newspaper had defamed Rush by alleging he “engaged in inappropriate behaviour” during a Sydney Theatre Company production of King Lear in 2015.
Rush is due to receive $2.9m, including $1.97m in special damages based on past and future lost earnings – the largest defamation payout to a single person in Australia.
The Telegraph is appealing against the decision, arguing that Wigney’s conduct in the case “gave rise to an apprehension of bias”.
At the opening of the two-day appeal before three judges in the federal court in Sydney on Monday, the Telegraph’s barrister, Tom Blackburn SC, argued the court should overturn Wigney’s finding that the newspaper’s key witness, the actor Eryn-Jean Norvill, was unreliable.
During the trial Norvill, who made the initial complaint about the actor to the STC, told the court that Rush – one of Australia’s best-known actors – engaged “daily” in a pattern of “sexual harassment” including “sexual innuendo” and groping gestures that made her feel “belittled”, “frightened” and “trapped”.
But Wigney found Norvill’s evidence was “not only uncorroborated but contradicted” by other witnesses and that she was “prone to exaggeration and embellishment”.
On Monday, Blackburn argued Wigney’s findings about Norvill were “glaringly improbable”.
He used the example of Wigney’s finding that Norvill did not need to make “highly complimentary” comments about Rush during an interview with the Sydney Morning Herald to promote the play in 2015.
“These were press conferences in support of the Sydney Theatre Company’s production of King Lear, this is not mainstream entertainment, this is not a Harry Potter movie,” Blackburn said.
“It is, if not niche entertainment, it’s certainly not mainstream entertainment.
“What is Ms Norvill supposed to do? Is she supposed to be guarded, or heroically pure at a press conference? Mr Rush was obviously, apart from being a distinguished actor, obviously a great drawcard for this production, I mean she had to talk him up.”
Blackburn told the court the decision to award special damages in favour of Rush was “extraordinary and absurd” because while the actor had “delivered his lines” over three days in the witness box, he had never told the court he had not received offers to work.
“Here’s one thing he didn’t say, that is, ‘I am unable to work because of these articles’. He just didn’t say it,” Blackburn said.
“Neither did he say I have received no or fewer offers because of these articles. His American agent, Fred Specktor, did not say he has received no or fewer offers because of these articles, his Australian agent wasn’t called, no one gave that evidence.”
Blackburn said the “failure” to ask Rush that question was “not explicable on any other conceivable basis other than that it was a deliberate decision”.
“He doesn’t clearly come out and say ‘I have received no offers of work’,” he said.
“We say it is very strange for the court to be having to draw inferences about his state of mind. On ordinary principles the court should have inferred that it wasn’t asked [because] counsel feared to ask it. The fear being the answer might be unfavourable.”
