GEOFFREY RUSH CASE NOTE 

What were some of the reasons behind this landmark decision, which has attracted such widespread public debate?   

 Background: 

During a 2015-2016 production of Shakespeare’s King Lear by the Sydney Theatre Company (“STC”), actor Eryn Jean Norvill alleged fellow actor Geoffrey Rush engaged in a pattern of sexual harassment.  On 30 November 2017 (over a year later), The Daily Telegraph newspaper published a “world exclusive” story concerning the alleged behaviour of Mr Rush during the STC production.  The following day, further allegations containing defamatory imputations in connection with Mr Rush were published by the newspaper.   

 Mr Rush initiated court action against the Daily Telegraph’s publisher, Nationwide News Pty Ltd and the main author of the stories, Mr Jonathon Moran.  Mr Rush claimed the newspaper poster and articles, including one with the headline “King Leer” underneath a picture of Mr Rush, were either defamatory or made defamatory imputations. Mr Rush strenuously denied the veracity of the allegations and his lawyers claimed general damages plus aggravated damages for lost income due to work denied in the present and in the future, because of the harm to his reputation.  Furthermore, the actor claimed publication of the poster and the two articles were likely to cause him economic loss running into millions of dollars.  

 What is defamation? 

Defamation is the area of law that is concerned with a person’s damaged reputation.  Each state and territory have its own legislation that covers this area.   In NSW, defamation law is covered by the Defamation Act 2005 (NSW).  In recent years, defamation law has become relatively consistent across the States and Territories.  

 Decision at first instance: [2019] FCA 496  

On 11 April 2019, proceedings were initiated at first instance in the Federal Court of Australia and Justice Wigney held in favour of Mr Rush.  The actor was awarded $850,000 in initial damages for non-economic loss including aggravated damages, with the prospect of being awarded a further amount.  The calculation of that further amount (being in relation to special damages for economic loss, injunctive relief, costs and interest) was stood over to be determined at a later date.  His Honour opined the publications were “a recklessly irresponsible piece of sensationalist journalism of the worst kind”, estimating that Mr Rush’s earnings as an actor would suffer for as long as two years following the “vindication of his reputation”.   

Link to Justice Wigney’s lengthy judgment spans more than 900 pages.  

 See also the linked videos from the decision at first instance: 

 1. Justice Michael Wigney as he hands down parts of his judgment, and  

2. Ms Norvill’s statement to the media outside the Federal Court of Australia.  

One of the issues that arose during the proceedings at first instance were comments made by Wigney J in his written judgment, which led to Nationwide News Pty Limited (the First Respondent) and Jonathon Moran (the Second Respondent) initiating an appeal.  In his written judgment, Justice Wigney remarked Ms Norvill was an unreliable witness who was “prone to exaggeration and embellishment”.  As far as the two Respondents were concerned, His Honour’s assessment of the credit of the witness and the reliability of her evidence gave rise to a reasonable apprehension of bias.  A party to proceedings can rely on this argument if at any stage during proceedings, they formed a reasonable apprehension that the judicial officer (either consciously or unconsciously) decided upon a matter unfairly.     

Appeal against trial judge’s decision 

On the background of the abovementioned concerns of the Respondents, Nationwide News Pty Limited (as First Respondent) and Jonathon Moran (as Second Respondent) filed an appeal in the Federal Court of Australia on 23 May 2019.  The Respondents’ application was filed on the grounds that Wigney J’s conduct of the case “gave rise to an apprehension of bias” and that His Honour should recuse himself from the matter.   

There were 15 grounds of appeal, however ultimately, none of the individual grounds relied upon by the Respondents provided any objective basis for concluding there was any apprehension of bias by the judge at first instance.  For these reasons, His Honour Justice Wigney declined to recuse himself and continued to hear the injunction application.   

Link to the Judgement relating to the Application for Recusal

On 28 August 2019, Mr Rush’s lawyers filed for an injunction, arguing there was a serious risk that Nationwide would continue to publish certain defamatory imputations.  Nationwide denied there was any threat or risk of re–publication.  After hearing the arguments from both sides, Justice Michael Wigney dismissed Mr Rush’s application for a permanent injunction seeking to restrain Nationwide from re–publishing the defamatory imputations.  

Link to the Judgement relating to the Application for Permanent Injuction

Appeal – Full Court Decision 

The Daily Telegraph through its parent company Nationwide News Pty Limited appealed against the decision at first instance to the Full Court of the Federal Court of Australia.  The appeal was heard by Justices Jacqueline Gleeson, Richard White and Michael Wheelahan on 2 July 2020.   

 Nationwide News abandoned its previous grounds of appeal that the conduct of the Judge at first instance had created a reasonable apprehension of bias and that Nationwide News had therefore been denied procedural fairness.  Twenty new grounds of appeal were pursued originally, which then decreased in number to eighteen. Ultimately, all of Nationwide News’ remaining grounds of appeal were dismissed.  

 The Full Federal Court decision comprising Justices Gleeson, White and Wheelahan resulted in the appeal being dismissed.  Mr Rush was awarded almost $2.9m in damages.  The record payout, which considered how Mr Rush’s tarnished reputation would limit future work, comprised $850,000 in general and aggravated damages, $1.9m for past and future economic loss and $42,000 in interest.  The Full Court of Federal Court upheld the 2019 finding that the newspaper portrayed the actor in a defamatory way.  Ben English, the editor of the Daily Telegraph, said after the outcome of the Full Federal Court decision that he was “very disappointed” by the decision, warning the outcome of the decision at first instance and the appeal “exposes the inadequacies of Australia’s defamation laws and heightens the need for urgent legislative reform to enable public debate and to encourage women to come forward with their concerns”.  Although the newspaper had argued these estimations were “manifestly excessive” and disagreed that it would take two years after the original judgment of defamation before Mr Rush’s earning capacity could be restored, the Full Court disagreed. 

Despite dismissing the appeal, Justices Gleeson, White and Wheelahan did agree with elements of the newspaper’s appeal submission, notably that the judge who oversaw the original defamation trial, His Honour Michael Wigney “attached significance to positive statements made” by Ms Norvill about Rush in promotional interviews for King Lear.  Wigney J had said the positive statements Ms Norvill made about performing with Mr Rush undermined the evidence she gave as testimony of his inappropriate behaviour during the trial. The Justices wrote [at 141]: “In our view, Ms Norvill’s conduct in the interviews is equally consistent with the circumstance that the conduct she described had occurred but with her suppressing or subordinating her own personal feelings to the ‘corporate’ interest in promoting the performance of King Lear”. 

For these reasons, the Justices did not think the erroneous significance which Wigney J attached to Ms Norvill’s comments made during the promotional interviews should be regarded as material.  Additionally, the appeal judges agreed with Wigney J’s decision to reject the newspaper’s request to include evidence from the actor Yael Stone during the original trial. 

Link to the Judgement from the Federal Court 

Note: 

Following the Full Court of the Federal Court decision, Nationwide News could theoretically appeal to the High Court, assuming there were grounds for appeal.  The first step would be to apply for special leave to appeal.  There are no indications at the time of writing that the newspaper will appeal. 

OUR ANALYSIS OF THE CASE 

The Rush decision at first instance analysed the defamatory imputations conveyed by the Daily Telegraph and concluded the newspaper was not able to show that the imputations were true.  Justices Gleeson, White and Wheelahan agreed with the trial judge’s finding. 

Although the newspaper’s appeal was ultimately dismissed by the Full Court of the Federal Court, the appeal judges did agree with one aspect of News Limited’s submissions, namely, that the trial judge placed too much significance on promotional press interviews in which Ms Norvill praised Mr Rush.  Concerns were raised by the legal team representing News Limited about the trial judge’s assessment of the witness and whether there was any apprehension of bias.   

 In any court proceedings, it is essential that judicial officers presiding over that case remain impartial in the exercise of their duties, so that all parties can be satisfied they were treated fairly and equally.  Judicial independence is one of the underpinning principles of the rule of law.  It guarantees that there will be an absence of bias and that the presiding judge/s will decide on any matter honestly and fairly, in accordance with the law and with the rules of evidence, without concern or fear of interference and free from control or undue influence.  The apprehension of bias could raise concerns that one or more parties were denied their fundamental constitutional right to due process.  For further discussion and analysis about the rule of law, click here.

After an exhaustive analysis, the Full Court of the Federal Court concluded that Wigney J’s assessment of the witness at first instance should be accepted.  It is important to bear in mind that the appeal judges did not have the trial judge’s advantage of being able to observe the witness as she gave her evidence.  Consequently, the governing principle is that appeal judge/s should not interfere in a trial judge’s assessment of the credibility or reliability of a witness without good reason.  To emphasise this point, the written judgement said [at 315]:   

“This is a case in which particular regard should be had to the advantage which the judge had in seeing and hearing the evidence as it was given… In our view, the judge’s findings are not glaringly improbable, contrary to compelling inferences or inconsistent with incontrovertible facts or other uncontested testimony.” 

Another point of academic interest that comes out of the appeal is the trial judge’s refusal to allow a last-minute amendment to News Limited‘s defence, which would have allowed material from another witness, Yael Stone, to be heard.  Justice Wigney ruled it would be unfair to Mr Rush to allow the late change.  This raises yet another important underpinning principle of the rule of law, which is that justice should not only be done, but be seen to be done.  By maintaining the integrity of the judicial process and a person’s right to a fair trial, fairness, justice and equality before the law are maintained.  The appeal judges did not interfere with the trial judge’s decision, indicating that they were satisfied there had been no miscarriage of justice. 

In criminal trials, a fair hearing requires a balancing exercise between the interests of the accused, the victim and the community.  In civil proceedings such as the Rush case, a fair hearing requires a judicial officer to balance the interests of all the parties to a dispute and ensure that each party is given a fair hearing.  As was the situation in the Rush case, individuals who find themselves in dispute with either prominent, high profile and/or affluent individuals and/or organisations may find themselves in a situation where there is a significant power imbalance. 

 Beyond the particular circumstances of this case, the integral desire to achieve justice in some cases can lead to incalculable harm and distress to all those involved.  Looking back at the Rush case, the process for all of those involved was no doubt traumatic. Chris Merritt of the Australian newspaper noted on 2 July 2020, 

“Former Law Council president Fiona Mcleod QC…. Believes it would have been better if Eryn Jean Norvill had her complaint dealt with in proceedings that were not focused on the reputation and potential earnings of an international movie star.”  In Norvill’s statement to the media following the outcome of the Full Federal Court decision, she said: “

There are no winners, only losers and I would have been content to receive a simple apology and a promise to do better, without any of this 

 This case as well as many others since the #MeToo movement, focuses our attention to the potential systemic power imbalance that can exist in workplaces, primarily in cases of sexual harassment perpetrated by individuals who find themselves in positions of power.  Equally, the Rush verdict sends a strong message to publishers and others who comment on social media or mainstream media outlets, that they could face severe consequences for publishing material which contains derogatory imputations or allegations they are unable to substantiate.  Finally, this case illustrates another important defining principle of the rule of law:  the presumption of innocence, which must always be borne in mind. 

 The record amount of damages awarded to any individual in Australia is worthy of further discussion and analysis.  The award of $2,872,753 that was given to Mr Rush considered how the actor’s tarnished reputation would limit his ability to secure future work.  The award comprised: 

• non-economic loss including aggravated damages of $850,000 
• past economic loss including prejudgment interest of $1,060,773,  
• future economic loss of $919,678; and  
• prejudgment interest on the non-economic loss of $42,302. 

The trial judge Wigney J was able to exceed the cap on reputational damage contained in section 35 of the Defamation Act 2005 (NSW) because in his view, Mr Rush had suffered aggravated damage. 

The cap, which is indexed, has been exceeded in a series of recent high-profile cases, hence the current debate for reforms to be made to the legislation to put a tighter cap on damages where a judicial officer makes a finding about aggravated damages.   

Examples of other recent cases include:   

1. The four Wagner brothers, who each won $750,000 from broadcaster Alan Jones and radio stations 2GB and 4BC over comments on Grantham flood deaths when the cap was $398,500. https://www.afr.com/politics/alan-jones-defamed-wagner-family-over-grantham-floods-20180911-h1592t 
2. Actress Rebel Wilson and barrister Lloyd Rayney, who each won $600,000 when the cap was $389,500.  https://www.smh.com.au/national/barrister-s-bid-to-upgrade-record-2-6-million-defamation-payout-stalls-20190201-p50v0t.html