FEDERAL COURT OF AUSTRALIA
Nationwide News Pty Limited v Rush [2020] FCAFC 115
Appeal from: Rush v Nationwide News Pty Limited (No 7) [2019] FCA 496 File number: NSD 679 of 2019 Judges: WHITE, GLEESON AND WHEELAHAN JJ Date of judgment: 2 July 2020 Catchwords: DEFAMATION – appeal from judgment in respect of three publications found to be seriously defamatory – seven separate defamatory imputations – award of damages including interest totalling $2,872,753.10 – on appeal, apprehension of bias grounds wholly abandoned – whether the primary Judge erred in finding that two of the publications conveyed one of the pleaded imputations – whether the Judge erred in rejecting the appellants’ defence of justification, on the basis of credibility findings – whether the primary Judge had disavowed reliance on witness demeanour in making the credibility findings – whether the Judge erred in finding that the evidence of the appellants’ primary witness was unreliable –whether the Judge erred in finding that the evidence of the primary witness concerning the incidents alleged by the appellants was uncorroborated – whether the Judge erred in finding that a text sent by the respondent to the appellants’ primary witness was not inappropriate – whether the Judge erred in refusing leave to the appellants late in the trial to amend their filed defence so as to raise new particulars of justification.
DAMAGES – assessment of damages for non-economic loss – aggravation of damage – Triggell v Pheeney – whether the pleading of a defence of truth was unjustified – whether publication of contents of defence in newspaper unjustified – matters published recklessly and in a sensationalised and extravagant manner where the appellants had not made adequate inquiries before publication of the matters and had not spoken to the complainant – defence alleging truth filed when the appellants had not still not spoken to the complainant – defence not capable of supporting imputations sought to be justified – no error by the Judge in finding that the conduct in pleading and then publishing allegations in the defence was unjustified.
DAMAGES – assessment of damages for non-economic loss – proper construction of s 35 of the Defamation Act –whether the decision of the Victorian Court of Appeal in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 159; 3 VR 111 is plainly wrong – argument raised for the first time on appeal – whether expedient in the interests of justice to entertain argument – Bauer Media not shown to be plainly wrong.
DAMAGES – assessment of damages for non-economic loss – whether the award of $850,000 for non-economic loss was manifestly excessive – imputations extremely serious – aggravation of harm by the appellants – respondent devastated and distressed – very high award of damages for non-economic loss warranted – little utility in comparing award with other cases – award of $850,000 not beyond what was appropriate.
EVIDENCE – whether opinion evidence of witnesses who knew the respondent was admissible – whether there were undisclosed facts supporting opinions – no error in overruling objection.
DAMAGES – assessment of damages for economic loss – whether respondent’s incapacity to earn income was pleaded – held that incapacity of the respondent to earn was pleaded and maintained at trial.
EVIDENCE – principles in Jones v Dunkel – whether respondent gave evidence of the effect of the publications upon his capacity for work – whether any occasion to draw adverse inference – held that respondent gave evidence of the effect of the publications upon him – no occasion to draw adverse inference – reasons of Handley JA in Commercial Union Assurance Co of Australia Ltd v Ferrcom (1991) 22 NSWLR 389 explained.
DAMAGES – assessment of damages for future economic loss – choice of period over which future loss of earning capacity estimated – application of Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 – no error by Judge in estimating future economic loss.
Legislation: Evidence Act 1995 (Cth) ss 44, 66, 69, 135, 140
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 47A(1)
Federal Court Rules 2011 (Cth) r 2.32
Defamation Act 2005 (NSW) ss 3(a), 6, 25, 28, 29, 34, 35, 36
Cases cited: Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Australian Broadcasting Corporation v Wing [2019] FCAFC 125; 371 ALR 545
Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 345
Australian Securities and Investments Commission v Rich [2005] NSWSC 149; 190 FLR 242
Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764
Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; 56 VR 674
Berrigan Shire Council v Ballerini [2005] VSCA 159; 13 VR 111
Bibby Financial Services Australia Pty Limited v Sharma [2014] NSWCA 37
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474
Brandi v Mingot (1976) 12 ALR 551
Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256; 148 FCR 68
Cassell & Co Ltd v Broome [1972] AC 1027
Cerutti v Crestside Pty Ltd [2016] QCA 33; 1 Qd R 89
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; 193 CLR 519
Chulcough v Holley [1968] ALR 274; 41 ALJR 336
Commercial Union Assurance Co of Australia Ltd v Ferrcom (1991) 22 NSWLR 389
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; 174 CLR 64
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577
Costello v Random House Australia Pty Ltd [1999] ACTSC 13; 137 ACTR 1
Coyne v Citizen Finance [1991] HCA 10; 172 CLR 211
Cummings v Fairfax Digital Australia and New Zealand Pty Ltd [2018] NSWCA 325; 366 ALR 727
David Syme v Mather [1977] VR 516
Ex parte Harper; Re Rosenfield [1964-5] NSWR 58
Ex parte Harper; Re Rosenfield [1964-5] NSWR 1831
Fairfax Media Publications Pty Ltd v Gayle [2019] NSWCA 172; 372 ALR 287
Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; 250 CLR 503
Garcia v National Australia Bank Ltd [1998] HCA 48; 194 CLR 395
Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838
House v The King [1936] HCA 40; 55 CLR 499
Jadwan Pty Ltd v Rae & Partners (A Firm) (No 2) [2020] FCAFC 95
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347
KSMC Holdings Pty Ltdv Bowden [2020] NSWCA 28
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Lower Murray Urban and Rural Water Corp v Di Masi [2014] VSCA 104; 43 VR 348
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42
McDonald’s Corp v Steel [1995] 3 All ER 615
Milliman v Rochester Ry Co 3 App Div 109; 39 NYS 274 (1896)
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 110 ALR 449
Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; 166 CLR 394
O’Donnell v Reichard [1975] VR 916
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118
Poniatowska v Channel Seven Sydney Pty Ltd (No. 2) [2020] SASCFC 5
Praed v Graham (1889) 24 QBD 53
R v Sorby [1986] VR 753
Random House Australia Pty Ltd v Abbott [1999] FCA 1538; 94 FCR 296
Ratcliffe v Evans [1892] 2 QB 524
Re Australian Elizabethan Theatre Trust [1991] FCA 344; 30 FCR 491
Rigby v Associated Newspapers [1969] 1 NSWR 729
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; 287 ALR 315
Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; 359 ALR 564
Rush v Nationwide News Pty Ltd(No 7) [2019] FCA 496
Stallion (NSW) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [2019] FCA 1306
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Sutcliffe v Pressdram Ltd [1991] 1 QB 153
The Herald & Weekly Times Ltd v McGregor [1928] HCA 36; 41 CLR 254
The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; 9 VR 1
University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118
Zierenberg v Labouchere [1893] 2 QB 183
Collins on Defamation (Oxford University Press, 2014)
Gatley on Libel and Slander (12th edition, Sweet & Maxwell)
Spencer Bower, The Law of Actionable Defamation (2nd edition, 1923)
Wigmore on Evidence (3rd edition, 1940)
Date of hearing: 4 and 5 November 2019 Registry: New South Wales Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 583 Counsel for the Appellants: Mr T Blackburn SC with Ms L Barnett Solicitor for the Appellants: Ashurst Australia Counsel for the Respondent: Mr B Walker SC with Ms S Chrysanthou Solicitor for the Respondent: HWL Ebsworth Lawyers ORDERS
NSD 679 of 2019 BETWEEN: NATIONWIDE NEWS PTY LIMITED
First Appellant
JONATHAN MORAN
Second Appellant
AND: GEOFFREY ROY RUSH
Respondent
JUDGES:
WHITE, GLEESON AND WHEELAHAN JJ
DATE OF ORDER:
2 July 2020
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.On or before 10 July 2020 the legal practitioners for the parties confer in relation to the question of costs of the appeal, and the form of orders as to costs that the Court should make.
3.On or before 17 July 2020 the parties file and serve any submissions as to costs, not to exceed three pages.
4.On or before 24 July 2020 the parties file and serve any submissions as to costs in reply, not to exceed three pages.
5.If the parties at any relevant point file an agreed note as to costs, further compliance with Orders 2 to 4 above is dispensed with.
6.Subject to any further order, the question of costs shall be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
Introduction
[1]
The publications
[7]
The STC production of King Lear
[24]
The findings of the primary Judge
[32]
The Further Amended Notice of Appeal
[44]
The apprehension of bias grounds
[47]
The imputation that Mr Rush was a “pervert” (Ground 8)
[60]
The rejection of the defence of justification
[72]
The witnesses
[79]
The grounds of appeal concerning the defence of justification
[86]
The appellate approach
[89]
The appellants’ submissions as to the application of these principles
[92]
The use of demeanour
[94]
The assessment of Ms Norvill’s evidence (Ground 10)
[116]
The reliance on Ms Norvill’s promotional interview statements (Ground 10(a))
[117]
Ms Norvill’s evidence concerning her statements in the promotional interviews
[125]
The assessment of the statements in the promotional interviews
[131]
Consideration
[137]
The use of the Crowe email (Grounds 10(b) and 11)
[144]
Factual setting
[145]
The content of the Crowe email
[149]
The reception of the Crowe email into evidence
[150]
The appellants’ submissions
[153]
Consideration
[159]
The differences between Ms Norvill’s evidence and her pre-trial statement of evidence (Ground 10(c))
[177]
The social interactions between Mr Rush and Ms Norvill (Ground 10(d))
[192]
The evidence concerning the play Orlando
[198]
The evidence concerning the Christmas party
[199]
The evidence concerning the 7 January email
[202]
Consideration
[209]
The assessment and use of Mr Winter’s evidence (Grounds 10(e) and 12)
[217]
The evidence concerning the first incident
[221]
The assessment of Mr Winter’s evidence concerning the first incident
[224]
The appeal submissions
[227]
Consideration
[230]
The evidence concerning the fifth incident
[250]
The Judge’s findings
[257]
The appeal submissions
[266]
Consideration
[270]
Ms Norvill’s conversations with Ms Nevin (Ground 10(f))
[276]
The evidence about the first conversation
[277]
The evidence concerning the second conversation
[281]
The Judge’s findings
[285]
The appellants’ submissions
[289]
Consideration
[291]
The lack of corroboration generally (Ground 10(g))
[309]
Conclusion on Ground 10
[313]
Rejection of the defence of justification (Ground 9)
[316]
The text of 10 June 2016 (Ground 9(f))
[318]
The evidence
[321]
The Judge’s findings
[324]
The appellants’ submissions
[329]
Consideration
[331]
Conclusion on defence of justification
[344]
The refusal of leave to amend the Defence (Ground 7)
[345]
The circumstances of the application to amend
[348]
The Judge’s reasons
[357]
Consideration
[371]
Damages
[378]
Unchallenged findings
[387]
The imputations
[388]
Mr Rush’s reputation
[389]
The extent of publication
[393]
The hurt and distress caused to Mr Rush by the publications
[394]
Aggravation
[405]
The 30 November 2017 publications
[406]
The 1 December 2017 articles
[408]
The course of the litigation
[411]
The cap on damages did not apply
[412]
Aggravation of harm (Ground 14)
[414]
Consideration of Ground 14
[424]
The pleading of the defence and amended defence
[425]
The publication on 20 February 2018 in the Daily Telegraph
[438]
Defamation Act, s 35 (Ground 16)
[442]
Should the Court consider Ground 16?
[447]
The merits of Ground 16
[451]
Consideration of Ground 16
[456]
Conclusion in relation to Ground 16
[467]
The award of damages for non-economic loss was manifestly excessive (Ground 13)
[469]
The appellants’ submissions in relation to Ground 13
[480]
Gayle v Fairfax Media Publications Pty Ltd (No 2)
[481]
Wagner v Harbour Radio Pty Ltd
[483]
Rayney v Western Australia (No 9)
[484]
Consideration of Ground 13
[485]
Damages for economic loss
[490]
The admission of the opinion evidence of Mr Specktor and Mr Schepisi (Ground 15)
[499]
Loss of earning capacity (Ground 17)
[515]
Mr Rush’s pleaded case
[517]
Did Mr Rush give evidence of the emotional effect that the articles had on him?
[530]
Was there evidence to support the pleaded case that Mr Rush had received no offers of work?
[562]
The quantification of damages on account of lost earning capacity (Ground 18)
[569]
Conclusions
[581]
Introduction
Between 28 November 2015 and 9 January 2016, the Sydney Theatre Company (STC) performed the Shakespearean tragedy King Lear at the Roslyn Packer Theatre in Sydney. The respondent to the appeal, Mr Rush, who is a well‑known actor, played the role of King Lear. Ms Erin Jean Norvill played the role of Cordelia.
Just under two years later, the first appellant, Nationwide News Pty Limited (Nationwide News), published three matters concerning Mr Rush’s conduct during the STC production of King Lear. Two of the publications were editions of The Daily Telegraph newspaper and the third a billboard poster. The second appellant, Mr Moran, was the author of the articles concerning Mr Rush in the two editions of The Daily Telegraph. Although none of these publications mentioned Ms Norvill, it later became apparent that they had been prepared with reference to conduct of Mr Rush said to have been reported by Ms Norvill.
The primary Judge found that the three publications were seriously defamatory of Mr Rush (Rush v Nationwide News Pty Ltd(No 7) [2019] FCA 496) and, by orders made on 11 April, 10 May and 23 May 2019, awarded him damages including interest, totalling $2,872,753.10.
The appellants now appeal against that judgment. Their grounds of appeal are multiple: three complain of aspects of the conduct of the trial and, initially, included an allegation of apprehended bias; one complained of the finding that the publications conveyed one of the pleaded imputations; four complained of the Judge’s rejection of the defence of justification (which was the appellants’ sole substantive defence); and eight concerned aspects of the award of damages.
During the hearing of the appeal, the appellants wholly abandoned their grounds of appeal alleging apprehended bias.
We consider that all of the remaining grounds of appeal fail and that the appeal must be dismissed. Our reasons follow.
The publications
The poster (the first impugned matter) was published on 30 November 2017 and, in large bold font, promoted the edition of “The Daily Telegraph” published that same day:
The Daily Telegraph
WORLD EXCLUSIVE
GEOFFREY
RUSH IN SCANDAL CLAIMSTHEATRE COMPANY CONFIRMS ‘INAPPROPRIATE BEHAVIOUR’
The poster is reproduced in Annexure A to these reasons.
The second publication was the edition of The Daily Telegraph on 30 November 2017 (the second impugned matter). On its front page, it featured a large photograph of a bewildered looking Mr Rush dressed as King Lear with the title “KING LEER”. The heading to the accompanying article on the front page, under the photograph of Mr Rush, was “WORLD EXCLUSIVE Oscar‑winner Rush denies ‘inappropriate behaviour’ during Sydney stage show”. The article reported that Mr Rush had been accused of “inappropriate behaviour” during the STC production of King Lear, and reported that Mr Rush denied the truth of the allegations.
The text of the article on the front page of The Daily Telegraph on 30 November 2017 was as follows:
OSCAR winning Australian actor Geoffrey Rush has been accused of “inappropriate behaviour” during Sydney Theatre Company’s recent production of King Lear.
However, Rush – through his lawyers – last night vigorously denied the claims. The Sydney Theatre Company told The Daily Telegraph it “received a complaint alleging that Mr Geoffrey Rush had engaged in inappropriate behaviour”. “The Company received the complaint when Mr Rush’s engagement with the Company had ended,” it said. “The Company continues to work with the complainant to minimise the risk of future instances of the alleged behaviour occurring in its workplace.”
Mr Rush’s lawyers said he had “not been approached by the Sydney Theatre Company, the alleged complainant nor any representative of either”. “Further, he has not been informed by them of the nature of the complaint and what it involves,” a statement from HWL Ebsworth Lawyers said.
“If such a statement has been issued by the STC it is both irresponsible and highly damaging.”
The front page of The Daily Telegraph published on 30 November 2017 is reproduced as Annexure B to these reasons.
Pages four and five of the same edition of The Daily Telegraph contained a two page spread concerning Mr Rush. These pages had at their head an overline in white against a red background stating “Oscar‑winner Geoffrey Rush denies complaint made in Sydney Theatre Shakespeare production”. Page four had a large bold headline “STAR’S BARD BEHAVIOUR”. An article concerning Mr Don Burke, who had been accused, amongst other things, of being a “sexual predator”, was printed on page five immediately adjacent to the article concerning Mr Rush.
The text of the article on pages 4 and 5 concerning Mr Rush was as follows:
OSCAR-winning Australian actor Geoffrey Rush has been accused of “inappropriate behaviour” during the Sydney Theatre Company’s recent production of King Lear.
But the star vigorously denies the allegations and says the company has never told him of any allegations of wrong doing.
The Daily Telegraph can today reveal that one of the country’s most successful actors was the subject of a complaint during the production of King Lear.
It is understood the allegations of inappropriate behaviour occurred over several months. The local production of the classic William Shakespeare play ran from November 2015 to January 2016 at the Roslyn Packer Theatre.
There were also several months of rehearsals.
“Sydney Theatre Company received a complaint alleging that Mr Geoffrey Rush had engaged in inappropriate behaviour,” a spokeswoman said to The Daily Telegraph.
“The Company received the complaint when Mr Rush’s engagement with the Company had ended. The Company continues to work with the complainant to minimise the risk of future instances of the alleged behaviour occurring in its workplace.
“The complainant has requested that their identity be withheld.
“STC respects that request and for privacy reasons, will not be making any further comments.”
In a strongly worded legal letter, lawyers for Rush at HWL Ebsworth last night said he had never been involved in any “inappropriate behaviour” and that his “regard, actions and treatment of all the people he has worked with has been impeccable beyond reproach.
“Mr Rush has not been approached by the Sydney Theatre Company and the alleged complainant nor any representative of either of them concerning the matter you have raised,” the letter states.
“Further, he has not been informed by them of the nature of the complaint and what it involves.”
The letter from the legal firm’s partner Nicholas Pullen goes on to say that Rush has not been involved with the Sydney Theatre Company or its representatives for a period of more than 22 months.
“In the circumstances, if such a statement has been issued by the STC it is both irresponsible and highly damaging to say the least.
“Your ‘understanding’ of what has occurred is, with the greatest respect, simply fishing and unfounded.
“It does not warrant comment except that it is false and untrue.”
Rush has worked with the STC many times – both acting and directing productions like Uncle Vanya, Oleanna, The Importance of Being Ernest, You Can’t Take It With You, King Lear and The Government Inspector.
Rush won the Academy Award for Best Actor in 1996 for his role as David Helfgott in the movie Shine and was nominated for the best supporting actor role two years later for Shakespeare in Love.
His other Oscar nominations include best actor in 2000 film Quills and for The King’s Speech in 2011 in the same category.
He has found fame for becoming one of the few people to have won acting’s “Triple Crown” – the Academy Award, the Primetime Emmy Award and the Tony Award.
The 66-year-old married father-of-two and Melbourne resident is also the president of the Australian Academy of Cinema Television and Arts and is expected to attend the annual AACTA Awards at The Star Event Centre next week.
Pages 4 and 5 of the second impugned matter are reproduced as Annexure C to these reasons.
The third publication was the edition of The Daily Telegraph of 1 December 2017 (the third impugned matter). Under the front page heading “WE’RE WITH YOU”, The Daily Telegraph reported that two STC actors had spoken in support of the then unnamed actress who had accused Mr Rush of touching her inappropriately during the production of King Lear. The full text of the article on page 1 of the 1 December 2017 edition was as follows:
TWO Sydney Theatre Company actors yesterday spoke out in support of the actress who has accused Oscar winner Geoffrey Rush of touching her inappropriately during the stage production of King Lear.
Rush – one of Australia’s biggest stars – was yesterday continuing to vehemently deny the claims.
Meyne Raoul Wyatt, who also appeared in King Lear, said he believed the allegations. “I believe (the person who) has come forward. It’s time for Sydney Theatre Company and the Industry in Australia and worldwide as a whole to make a stand,” Wyatt said.
And Brandon McClelland, who has worked alongside the actress, urged others to believe the complaints. “It wasn’t a misunderstanding,” he said.
Two STC sources said the company stood by her claims. Both said the company wouldn’t work with Rush again. Despite denials, Rush was told who made the claims in a phone call with executive director Patrick McIntyre weeks ago. Mr McIntyre last night said the STC had “reviewed policies” about “inappropriate behaviour”.
Pages four and five of The Daily Telegraph edition on 1 December 2017 also comprised a double page spread of articles relating to Mr Rush. Each article was written by Mr Moran. The first article had the heading “HR overhaul to lift curtain on bad deeds”. The text of that article was as follows:
THE Sydney Theatre Company has revised its HR policies in a bid to ensure it maintains a safe environment for staff.
Executive director of the STC Patrick McIntyre (below) said it was important actors feel safe to speak up and believes maintenance of confidentiality to be key.
“We have reviewed policies and procedures in place and that includes educating actors when they come in to the company about our intolerance of inappropriate behaviour, who they should speak to and encouraging them to speak up,” Mr McIntyre said.
Mr McIntyre’s comments come after the STC confirmed it had received a complaint by a staff member over allegations of “inappropriate behaviour” by Oscar winner Geoffrey Rush. Rush vehemently denies any wrongdoing.
Mr McIntyre stressed that he and the executive team at the theatre company have a duty of care to ensure all staff feel safe and respected in the workplace.
“This isn’t about creating drama and blame but if everyone holds each other accountable, we create the kind of workplace we all want to be in,” he said. More broadly, Mr McIntyre suggested it is a wideranging issue for the industry to address in the wake of the Harvey Weinstein scandal.
“Many still view that speaking up comes with adverse repercussions,” he explained.
“This is a trust issue that the industry needs to work towards resolving and the observance of confidentiality is key to this. If people don’t trust us with their stories, they won’t speak up.”
The HR overhaul follows preliminary findings of an Actors Equity survey aimed at theatre actors which found that 40 per cent of respondents claimed they had directly experienced sexual harassment, bullying or misconduct.
Oscar winner Kevin Spacey became embroiled in the ongoing controversy rocking the entertainment industry with numerous victims coming forward – including 20 complaints from his time as artistic director at London’s Old Vic Theatre between 2004 and 2015.
A law firm’s investigation into allegations about Spacey stated: “Despite having the appropriate escalation processes in place, it was claimed that those affected felt unable to raise concerns and that Spacey operated without sufficient accountability.”
A second article under the heading “ACTS OF DEFIANCE” referred to the support provided by two actors who had worked with the actress making accusations against Mr Rush. The full text of that article is as follows:
TWO actors who work with the Sydney Theatre Company yesterday publicly threw their support behind the actress who has accused Oscar-winner Geoffrey Rush of touching her inappropriately during the stage production of King Lear.
It comes as Rush – one of the country’s most successful actors – was yesterday continuing to vehemently deny claims he inappropriately touched a cast member of the local production of the classic William Shakespeare play.
Rising young actor Meyne Raoul Wyatt, who appeared in King Lear, said he believed his castmate’s version of events.
“I was in the show,” Wyatt, who has also starred in Neighbours and Redfern Now, wrote on Facebook yesterday after The Daily Telegraph broke the story.
“I believe (the person who) has come forward. It’s time for Sydney Theatre Company and the industry in Australia and worldwide as a whole to make a stand on this behaviour!!!!”
And Brandon McClelland, who has worked alongside the woman at the centre of the alleged complaint and is in the company’s current production of Three Sisters, urged others on Twitter to believe the actress.
“It wasn’t a misunderstanding. It wasn’t a joke,” he posted.
McClelland’s tweet was also reposted by several other Sydney theatre actors as the story dominated social media yesterday.
The STC production of King Lear ran from November 2015 to January 2016.
The 66-year-old acting legend yesterday said he “immediately phoned and spoke to senior management” at the STC when he became aware of rumours there was a complaint.
But he said the STC refused to give him any details.
“They refused to illuminate me,” he said through a statement.
“I also asked why this information was being withheld, and why, according to standard theatre practice, the issue had not been raised with me during the production via stage management, the director, my fellow actors or anyone at management level.
“However, no response was forthcoming.”
Rush’s lawyer Nicholas Pullen said it was a “great disappointment” that the STC had “chosen to smear his name and unjustifiably damage his reputation”.
“Not to afford a person their right to know what has been alleged against them, let alone not inform them of it but release such information to the public, is both a denial of natural justice and is not how our society operates,” he said.
The actor’s lawyer, a partner in legal firm HWL Ebsworth, said Rush “abhorred any form of maltreatment of any person”.
“Until there is the decency afforded to Mr Rush of what the ‘inappropriate behaviour’ actually is then there is nothing more that can be said at this stage.” Mr Pullen said.
Two sources who spoke to The Daily Telegraph yesterday said Rush was made aware who made the claims in a conversation with executive director Patrick McIntyre three weeks ago.
The sources said they believed the woman’s claims.
And they said the STC would not be working with Rush again. That’s despite the veteran actor having worked with the company both acting and directing productions such as Uncle Vanya, Oleanna, The Importance Of Being Ernest and The Government Inspector.
A new statement from the STC yesterday said it had responded “truthfully” after being approached by The Daily Telegraph earlier this week.
It also clarified the anonymous nature of the alleged complainant, who had “requested the matter be dealt with confidentially, and did not want Mr Rush notified”.
“STC complied, acting in the interest of the complainant’s health and welfare.” Mr McIntyre last night said the STC had “reviewed policies and procedures” including “educating actors when they come in to the company about our intolerance of inappropriate behaviour, who they should speak to and encouraging them to speak up”.
A third article appeared under the heading “Statement for acting veteran blasts STC ‘smear’”. Its full text was as follows:
MANAGEMENT for Oscar-winning actor Geoffrey Rush issued a comprehensive statement yesterday denying allegations of “inappropriate behaviour” during the 66-year-old veteran actor’s time with the Sydney Theatre Company’s production of King Lear.
The statement, following The Daily Telegraph’s exclusive report yesterday, took aim at the Sydney Theatre Company, alleging that it had “chosen to smear his name and unjustifiably damage his reputation”.
It also claimed that: “His treatment of fellow colleagues and everyone he has worked with is always conducted with respect and the utmost propriety.
“The allegation made against Mr Rush comes from a statement provided by the Sydney Theatre Company,” it reads.
The widely released document says it is understood that the STC’s own statement concerns a complaint made to it more than 21 months ago.
“To date, Mr Rush or any of his representatives have not received any representations from the STC or the complainant.
“In other words, there has been no provision of any details, circumstances, allegations or events that can be meaningfully responded to.”
It goes on to quote Mr Rush:
“The moment I became aware of rumours of a complaint I immediately phoned and spoke to senior management at the Sydney Theatre Company asking for clarification about the details of the statement.
“They refused to illuminate me with the details.”
The statement then says Mr Rush can only reiterate that he denies being involved in any “inappropriate behaviour” whatsoever.
A fourth article had the heading “THEATRE’S FIRM STATE OF PLAY”. The text of that article was as follows:
THE Sydney Theatre Company yesterday confirmed it responded “truthfully” when asked if it had received a complaint alleging inappropriate behaviour by leading Australian actor Geoffrey Rush.
In an updated statement, the STC said it “was asked by a News Ltd journalist earlier this month whether it had received a complaint alleging inappropriate behaviour by Mr Rush while he was employed by the company. STC responded truthfully that it had received such a complaint.”
It also clarified the alleged complainant had “requested the matter be dealt with confidentially, and did not want Mr Rush notified or involved” in any inquiry.
“STC complied, acting in the interest of the complainant’s health and welfare. As already stated, the Company received the complaint after Mr Rush’s engagement had ended.”
The final article appeared under the heading “Execs’ exile for star”. The text of that article was as follows:
EXECUTIVES at the Sydney Theatre Company yesterday came forward in support of the woman at the heart of the Geoffrey Rush scandal, saying they wholeheartedly believe her claims.
They also said due to the seriousness of the allegations, the award-winning theatre company would not work with the Pirates of the Caribbean star again. “There is no chance,” the source told The Daily Telegraph. “How could we work with him again? That question doesn’t even need an answer.”
The executive added: “Another actor backed what she said … we’ve taken this very seriously.”
The source also defended not naming the woman, saying: “It is not our story to tell.”
A high-profile actor, who did not want to be named, came forward to support the woman.
The two page spread contained five photographs of Mr Rush.
Pages 4 and 5 of the 1 December 2017 edition of The Daily Telegraph are reproduced in Annexure D to these reasons.
In the weeks preceding 30 November 2017, the events which gave rise to the #MeToo movement had occurred. The Hollywood film producer, Harvey Weinstein had been portrayed in public and social media as a sexual predator who had committed acts of sexual assault and/or sexual harassment. The Hollywood actor Kevin Spacey had also been portrayed as a sexual predator who had committed acts of sexual assault and/or sexual harassment. Those events formed part of the context on which Mr Rush relied in alleging that he had been defamed.
The STC production of King Lear
The STC production of King Lear was directed by the well‑known theatre director, Mr Neil Armfield AO. The Judge accepted that Mr Armfield is a close colleague and friend of Mr Rush.
As already indicated, Mr Rush played the lead role of King Lear and Ms Norvill played the role of Cordelia, one of King Lear’s three daughters.
Ms Helen Buday played the role of Goneril, the eldest of King Lear’s daughters. Ms Helen Thomson played the role of Regan, the third of King Lear’s daughters.
Ms Robyn Nevin AM played the role of the Fool.
Mr Max Cullen played the role of the Earl of Gloucester, Mr Alan Dukes the role of the Duke of Albany, Mr Nick Masters the role of the Duke of Burgundy, Mr Colin Moody the role of the Duke of Cornwall, and Mr Jacek Koman the role of the Earl of Kent.
Mr Mark Winter played the role of Edgar, the Earl of Gloucester’s legitimate son. Mr Meyne Wyatt played the role of Edmund, the main antagonist in the play and illegitimate son of the Earl of Gloucester. Mr Wade Briggs played the role of Oswald and Mr Eugene Gilfedder played the Knight and messenger. Mr Simon Barker and Mr Phillip Slater played the role of two musicians. The Judge found that, in addition to this cast of 14, a large number of other people were directly involved in one way or another in the production. The total number involved in the production was of the order of 45.
The STC commenced rehearsals for the performance on 12 October 2015. Four preview performances of the play were presented before full audiences between 24 and 27 November 2015. As indicated, the STC presented its production of King Lear between 28 November 2015 and 9 January 2016, both dates inclusive.
The final scene in King Lear involves Lear grieving over the body of Cordelia who has been killed by Edmund’s betrayal. In the STC production, Mr Rush carried Cordelia’s body (Ms Norvill) on stage from a position just off stage, lay her on the floor and then, while engaged in dialogue with Mr Dukes, mourned over her body. This involved Mr Rush touching Ms Norvill. Much of the evidence on which the appellants relied for the defence of justification concerned the conduct of Mr Rush which was said to have occurred in the rehearsals for, and the performance of, this final scene.
The findings of the primary Judge
The trial of the action occupied some 15 days. In addition to his own evidence, Mr Rush led evidence from Mr Armfield, Ms Nevin, Ms Buday, Mr Fred Schepisi AO (the film director), Mr Fred Specktor (Mr Rush’s American agent), Ms Robyn Russell (an American media attorney), Mr Michael Potter (a forensic accountant) as well as seven other “reputation” witnesses, including his wife Ms Jane Menelaus, who gave evidence of Mr Rush’s reputation and of their observations of him. The appellants led evidence from Ms Norvill, Mr Winter, Mr Richard Marks (an American media attorney) and from Mr Tony Samuel (a forensic accountant).
The Judge found that each of the three publications conveyed imputations which were defamatory of Mr Rush.
In relation to the billboard poster, the Judge found that it conveyed the imputation that Mr Rush had engaged in scandalously inappropriate behaviour in the theatre, at [217]. Although the appellants had denied on their pleadings that the poster did convey this meaning, they accepted at the trial that this imputation had been conveyed to the ordinary reasonable reader, at [115].
The Judge found that the articles published on 30 November 2017 conveyed the following imputations, at [61] and [218]:
(a) that Mr Rush is a pervert;
(b)that Mr Rush behaved as a sexual predator while working on the STC’s production of King Lear;
(c)that Mr Rush engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear; and
(d)that Mr Rush, a famous actor, engaged in inappropriate behaviour against another person over several months while working on the STC’s production of King Lear.
The Judge found that the articles published on 1 December 2017 conveyed the following imputations, at [64] and [219]:
(a)Mr Rush had committed sexual assault while working on the STC’s production of King Lear;
(b)Mr Rush behaved as a sexual predator while working on the STC’s production of King Lear;
(c)Mr Rush engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear;
(d)Mr Rush had inappropriately touched an actress while working on the STC’s production of King Lear;
(e) Mr Rush is a pervert;
(f)Mr Rush’s conduct in inappropriately touching an actress during King Lear was so serious that the STC would never work with him again; and
(g)Mr Rush had falsely denied that the STC had told him the identity of the person who had made a complaint against him.
With one or two exceptions, the appellants had denied at trial that either of the second or third impugned matters had conveyed the above imputations but, as indicated, that part of their defence was not successful. The appellants appeal against only one aspect of these findings of the Judge, namely, the finding that the second and third impugned matters conveyed the imputation that “the applicant is a pervert”.
The only substantive defence of the appellants at trial was the claim that all but one of the imputations alleged by Mr Rush were substantially true. They alleged that he had in fact engaged in scandalously inappropriate behaviour of a sexual nature in the theatre; that he had in fact committed sexual assault in the theatre; that he was in fact a pervert; that he had in fact behaved as a sexual predator; and that he had inappropriately touched an actor while working on the STC’s production of King Lear.
These contentions were based on claims that Mr Rush had, during the STC production of King Lear, amongst other things, made lewd gestures and acted in a sexually inappropriate and predatory manner towards Ms Norvill, that he had intentionally touched one of her breasts during one of the preview performances, and that he had touched Ms Norvill’s lower back as he was about to carry her on stage during the final scene in the play.
The Judge found that the appellants had not proved on the balance of probabilities the substantial truth of any of the imputations conveyed by the appellants’ publications and, accordingly, that their defence of justification failed. It followed that Mr Rush was entitled to an award of damages.
The Judge found that Mr Rush had an “exemplary reputation” prior to the appellants’ publications. The evidence of several witnesses called by Mr Rush supported that conclusion.
The Judge considered that the damage to Mr Rush’s reputation both in Australia and internationally had been substantial. His Honour considered that Mr Rush was entitled to a substantial award by way of compensatory damages, including aggravated damages. The Judge held that the assessment of the damages to which Mr Rush was entitled should take account of the circumstances in which the appellants had published the impugned matters as well as their conduct occurring thereafter. His Honour also considered that the cap on the amount which could be awarded for non‑economic loss pursuant to s 35 of the Defamation Act 2005 (NSW) was inapplicable, having regard to s 35(2). In the application of s 35(1) and (2), the Judge followed the decision of the Court of Appeal in Victoria in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; 56 VR 674 (Bauer Media).
The Judge awarded Mr Rush damages totalling $2,872,753.10 as follows:
·non‑economic loss including aggravated damages – $850,000;
·past economic loss including pre‑judgment interest – $1,060,773;
·future economic loss – $919,678; and
·pre‑judgment interest on the non‑economic loss – $42,302.10.
The Further Amended Notice of Appeal
The appellants’ Further Amended Notice of Appeal (FANA) filed on 5 July 2019 contained 20 grounds. Before the hearing of the appeal, the appellants abandoned Ground 20 and indicated that Ground 6 should be regarded as a particular of Ground 5. That meant that, at the commencement of the appeal hearing, the appellants were pursuing 18 grounds of appeal.
Those 18 grounds are in four categories:
(a)grounds concerning the Judge’s conduct of the trial (Grounds 1‑5 and 7). These grounds include complaints that aspects of the conduct of the Judge during the trial gave rise to an apprehension of bias (Grounds 1‑4), that by reason of seven matters, the Judge had denied the appellants procedural fairness (Ground 5), and that the Judge had erred in disallowing, on the 12th day of the trial, the application by the appellants to amend their defence so as to plead further matters of justification (Ground 7);
(b)the finding that the imputation that “the applicant is a pervert” had been conveyed by the second and third impugned matters (Ground 8);
(c)the rejection of the appellants’ defence of justification (Grounds 9‑12); and
(d)the damages awards (Grounds 13‑19).
The relief sought by the appellants in the FANA was the allowing of the appeal, the setting aside of the Judge’s orders giving effect to his award of damages and the entry of judgment in their favour. In the alternative, the appellants sought the remittal of the proceedings for retrial before a different Judge, together with the setting aside of three interlocutory orders made by the Judge which had been adverse to the appellants. During the course of the appeal hearing, the appellants’ position with respect to the relief they sought in the event that the appeal was successful in whole or in part, was modified.
The apprehension of bias grounds
It is appropriate to record some matters concerning the appellants’ claims of an apprehension of bias by the Judge, even though these claims were wholly abandoned by them during the afternoon of the first day of the two day appeal hearing.
Prior to the delivery of judgment on 11 April 2019 (which contained the award of $850,000 for non‑economic loss and indicated the basis on which the awards for past and future economic loss should be computed), the appellants had not made any application that the Judge should recuse himself on the grounds of an apprehension of bias. On delivering judgment, the Judge listed a case management hearing for 10 May 2019. His Honour’s intended purpose in doing so was to hear from the parties concerning orders in relation to the filing of further evidence and submissions in respect of the assessment of the damages for economic loss and further submissions in relation to injunctive relief, costs and interest.
At the hearing on 10 May 2019, the appellants made an oral submission that the Judge should recuse himself from considering any further contested matters in the proceedings, in particular, Mr Rush’s application for further injunctive relief. The Judge then listed the appellants’ oral application for recusal and Mr Rush’s application for permanent injunctions for hearing on 20 May 2019. At the request of the parties, the hearing on that day was adjourned to 23 May 2019.
By 23 May 2019, the appellants had presented the Judge with the form of an interlocutory application seeking an order that he recuse himself from further determining the proceedings. His Honour granted the appellants leave to file the application and the hearing proceeded on the basis that they would do so. However, the application was not filed. At the conclusion of the submissions concerning the claimed apprehended bias, the Judge refused to recuse himself and said that he would publish reasons later. His Honour’s formal order on 23 May 2019 was that the “interlocutory application filed by the respondents dated 23 May 2019 seeking an order that his Honour Justice Wigney recuse himself from further determining the proceedings is dismissed”. Plainly, his Honour made the order in those terms in the belief that the appellants had exercised the leave granted to them. The Judge then determined the outstanding issues and made orders awarding Mr Rush damages for past and future economic loss, as well as orders concerning other matters, which it is not necessary to detail presently.
The first Notice of Appeal, which included four grounds alleging apprehended bias, was filed by the appellants on 1 May 2019. An Amended Notice of Appeal was filed on 7 June 2019 and the FANA was filed on 5 July 2019. Apart from two particulars which were abandoned, the effect of the amendments filed on 7 June and 5 July 2019 was, amongst other things, to enlarge the matters on which the appellants relied for their claims of apprehended bias.
An allegation of bias by a judge, whether actual or apprehended, is a serious matter. It should not be made lightly. In defamation proceedings in which an applicant is successful, special care should be exercised before such allegations are made. That is because claims of apprehended bias go to the very integrity of the trial process and are accordingly likely to undermine in the eyes of the public the vindication of the applicant’s reputation which the judgment represents. Junior counsel for Mr Rush drew attention to this effect on 10 May 2019 when the appellants first made their oral application that the Judge recuse himself.
The appellants’ intention to pursue claims of apprehended bias on the appeal was confirmed in the summary of submissions filed on 23 September 2019 in anticipation of the appeal hearing, by the appellants’ request that the Court listen to tapes of statements made by the Judge during the trial, and by the appellants’ senior counsel at the commencement of the appeal hearing.
At the appeal hearing, the Court drew the appellants’ attention to passages in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577. Kirby and Crennan JJ (with whom Gummow ACJ agreed on this point) said:
[117]… An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias.
(Emphasis added)
It was apparent that the adoption of the approach stated by Kirby and Crennan JJ would cause the Court some difficulty in structuring a judgment in the particular circumstances of this case. However, it was necessary for the appellants to make the election of which their Honours spoke, as success by them on their claims of apprehended bias could not result in the primary relief which they sought, namely, the entry of judgment in their favour on Mr Rush’s claims.
Senior counsel then said that the appellants would consider their position in this respect.
Later that day, as already indicated, senior counsel informed the Court that the appellants no longer pressed the apprehension of bias claims nor the claim of denial of procedural fairness in Ground 5. After some further submissions, the Court invited the appellants to consider applying to amend the FANA so as to withdraw the grounds containing the claims of apprehended bias. On the following morning, the appellants made that application, and it was granted.
By the Second Further Amended Notice of Appeal (2FANA) filed on 5 November 2019, the appellants withdrew Grounds 1‑6 inclusive and confirmed that Ground 20 was abandoned.
The appellants’ abandonment of its claims of apprehended bias and the amendment of the notice of appeal means that there is now no suggestion that the decision of the Judge was affected in the manner which the appellants once claimed. We note, moreover, that, at the time of the abandonment of the claim, the precise nature of the bias which it was said that the reasonable fair minded observer may have apprehended had not been made clear.
The imputation that Mr Rush was a “pervert” (Ground 8)
This ground relates to the Judge’s findings at [135] and [195] that the 30 November 2017 and 1 December 2017 articles conveyed the imputation that Mr Rush was a pervert. On the hearing of the appeal, senior counsel for the appellants accepted that this ground of appeal was relevant only to damages.
On the appeal, the appellants contended that the Judge had erred in rejecting their interpretation of the word “pervert”, being a person who is, by contemporary standards, a sexual deviant or someone who engages in sexual behaviour that would be regarded as not just offensive, but disgusting as well as bizarre. The appellants gave as an example, a “peeping Tom”. In contrast, according to the appellants, mere sexual harassment would not be properly described as “perverted”. The appellants argued that their interpretation is consistent with the dictionary definitions set out by the Judge at [138] of his Honour’s reasons which, his Honour acknowledged, “tended to involve some form of sexual abnormality or deviance”.
At [140] of the Judge’s reasons, his Honour stated –
[I]n my view the common or everyday meaning of “pervert” is somewhat broader than the rather narrow dictionary definitions. For example, the ordinary reasonable reader would be likely to consider that a person, particularly an older man, who leers at younger women or men in a lecherous, lewd or licentious manner, particularly in a workplace setting, would rightly be called a “pervert”. Indeed, in Australia at least, a man who engages in such behaviour is often called a “perv”, which is a colloquial or shortened form of the word “pervert”. The Macquarie Dictionary defines the colloquial expression “perv” (or “perve”) as a “sexual pervert” and the expression to “have a perv (perve)” as “to look at something, with or as if with lustful appreciation” or “to look lustfully”. The impression conveyed by the article was, at the very least, that Mr Rush was a “perv” or pervert in that sense.
(Emphasis added)
The appellants argued that the Judge wrongly equated the noun “pervert” with the slang verb “to perve”, submitting that, in ordinary language the two concepts are quite distinct. The appellants argued that the verb rarely connotes behaviour that ordinary members of society would regard as sexually deviant and may simply mean “to look lustfully”. To look lustfully might in some circumstances be regarded as reprehensible but not as the conduct of a sexual deviant. In contrast, a “pervert” or a person who is “perverted” is rarely, if ever, considered in a positive light.
The appellants submitted that the Judge wrongly concluded that, because the noun “perve” may be synonymous with “pervert”, the verb “perve” must therefore connote behaviour that is “sexually deviant or perverted”.
Mr Rush submitted that the imputation that he was a pervert followed from the other imputations found to be conveyed by the imputations, which included that he:
(a)behaved as a sexual predator;
(b)engaged in inappropriate behaviour of a sexual nature;
(c)committed sexual assault; and
(d)inappropriately touched an actress.
Mr Rush submitted that the Judge gave detailed reasons for finding that this imputation was conveyed by the second matter complained of (at [127]-[146]) and by the third matter complained of (at [195]-[201]), and for finding that the appellants were arguing for an elevated meaning of the word “pervert”, that is a meaning which was not the natural and ordinary meaning.
Although the Judge found the appellants’ interpretation of the imputation to be unduly narrow, his Honour also made findings adverse to them on the basis of that narrow interpretation. Thus, the appellants’ contention goes nowhere.
Specifically, as to the 30 November 2017 articles, the Judge found at [139] that the articles as a whole conveyed the impression that Mr Rush was someone who acted in a sexually abnormal or deviant way. His Honour found that the conduct conveyed was “more than just offensive and objectionable” and that, having regard to Mr Rush’s age and standing, it would also be considered by most ordinary reasonable people as sexually abnormal or deviant. His Honour also found that the suggestion that Mr Rush was a “sexual predator” also suggested some form of sexual abnormality or deviancy.
As to the 1 December 2017 articles, the Judge found at [200] that, even if the word “pervert” is to be given the narrow meaning contended for by the appellants, “the ordinary reasonable reader would be likely to consider that a senior actor who committed sexual assault, or behaved as a sexual predator, or engaged in inappropriate behaviour of a sexual nature, or inappropriately touched an actress, in the course of a major theatre production, had engaged in sexual conduct which was bizarre, unnatural or abnormal”.
In any event, we agree with the Judge that the ordinary reasonable reader is likely to consider a person who engaged in the conduct conveyed by the publications to be a “pervert”, particularly in so far as it concerned behaving as a sexual predator, and a man’s use of authority or stature in the workplace to obtain sexual gratification by inappropriately touching a non-consenting co-worker. On the Judge’s unchallenged findings, the relevant publications went well beyond suggesting that Mr Rush had “perved” on Ms Norvill.
Accordingly, this ground of appeal fails.
The rejection of the defence of justification
By [13] of their Second Further Amended Defence (2FAD) to Mr Rush’s Statement of Claim, the appellants alleged that all but one of the defamatory imputations alleged by Mr Rush were substantially true and thereby invoked s 25 of the Defamation Act and its interstate and Territory counterparts. The exception was the imputation pleaded in [10(g)] of the Statement of Claim, namely, that “[t]he applicant had falsely denied that the Sydney Theatre Company had told him the identity of the person who had made a complaint against him”. The appellants did not seek to justify that imputation.
At the trial, the appellants did not seek to justify another of the pleaded imputations, namely, the imputation pleaded in [10(f)] of the Statement of Claim that Mr Rush’s conduct in “inappropriately touching an actress during King Lear was so serious that the [STC] would never work with him again”. They accepted that Mr Rush was entitled to judgment on the imputations pleaded in [10(f)] and [10(g)] of the Statement of Claim.
The Judge recorded that it was the appellants who had the onus of proving on the balance of probabilities that the imputations conveyed by the impugned matters were substantially true and noted that, in considering the evidence, it was appropriate to have regard to the seriousness of the allegation made and the gravity of the consequences following from a particular finding. In this respect, the Judge referred to Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336 at 362; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, 110 ALR 449 at 450 and to s 140 of the Evidence Act 1995 (Cth).
The Judge noted that the allegations pleaded by the appellants in support of the defence of justification related entirely to Mr Rush’s behaviour towards Ms Norvill, at [230]. His Honour summarised the appellants’ particulars as involving eight key allegations and used the summary as the framework for his reasons concerning the plea of justification. It was not suggested that there was any error in the Judge’s summary. The eight matters were:
(i)on one occasion (pleaded to have occurred between about 26 and 30 October 2015) when Mr Rush and Ms Norvill were rehearsing the final scene of the play in which King Lear grieves over Cordelia’s dead body, Ms Norvill saw Mr Rush “hovering his hands over her torso and pretending to caress or stroke her upper torso” and then making “groping gestures in the air with two cupped hands, which gestures were intended to simulate and did in fact simulate him groping and fondling [Ms Norvill’s] breasts”, at [232]. That incident was said to have occurred in front of other members of the cast and perhaps crew;
(ii)during the rehearsal period from about 12 October to 23 November 2015, Mr Rush “regularly made comments or jokes about [Ms Norvill] or her body which contained sexual innuendo”, at [233]. This conduct was also said to have often occurred in the presence of members of the cast and crew;
(iii)during the rehearsal period, Mr Rush would “regularly (every few days) make lewd gestures in [Ms Norvill’s] direction” and “[o]n a number of occasions this comprised [Mr Rush] looking at [Ms Norvill], sticking his tongue out and licking his lips and using his hands to grope the air like he was fondling [Ms Norvill’s] hips or breasts”, at [234];
(iv)during a promotional interview with Elissa Blake, a journalist at the Sydney Morning Herald, Mr Rush described having a “stage‑door Johnny crush” on Ms Norvill, at [235];
(v)during a preview performance of the play between 24 and 27 November 2015, Mr Rush departed from the way that the last scene had been repeatedly rehearsed in that he “did not touch [Ms Norvill’s] hand and face … but rather [he] moved his hand so that it traced down [Ms Norvill’s] torso and across the side of her right breast”, at [236]. In relation to this allegation, the appellants also claimed that on the following day, the director of the play, Mr Armfield, had given Mr Rush an oral “note”, apparently in the presence of other cast members, by which he directed that Mr Rush should make his performance in the last scene more “paternal” as it was becoming “creepy and unclear”. Mr Armfield was also said to have directed Mr Rush not to stroke Ms Norvill’s body but to place his hand lightly on the side of her face and arm instead;
(vi)the sixth allegation concerned Mr Rush’s conduct during the final scene of the play in which, as already noted, he carried Ms Norvill onto the stage. Immediately before that occurred, Ms Norvill stood on a chair backstage in the prompt side wings so as to facilitate Mr Rush lifting her into his arms. The appellants alleged that, in a performance occurring between 14 and 26 December 2015, before lifting Ms Norvill from the chair, Mr Rush placed his hand on her lower back over her shirt, moved his hand under her shirt and along the waistline of her jeans, brushing across the skin of her lower back. The appellants alleged the movement to have been “light in pressure, slow and … deliberate”, and to have lasted for about 20‑30 seconds, at [237];
(vii)this allegation concerned conduct similar to the sixth but was said to have occurred during a performance in the period between 4 and 9 January 2016. The appellants alleged that while Ms Norvill was standing on the chair, Mr Rush started to touch her lower back on top of her shirt and then gently rubbed his fingers over her lower back from right to left; and
(viii)on 10 June 2016, Mr Rush sent a text message to Ms Norvill in which he said that he thought about her “more than is socially appropriate”.
The Judge noted the appellants’ contention that the conduct of Mr Rush which they alleged was intentional and constituted scandalously inappropriate conduct in the workplace.
It was not in issue that Mr Rush had said, during the course of an interview with a journalist on 17 November 2015 promoting the STC performance of King Lear, that he had a “stage‑door Johnny crush” on Ms Norvill. The evidence also established that Mr Rush had, on 10 June 2016, sent a text message to Ms Norvill in which he said, amongst other things, that he thought about her “more than is socially appropriate”. The Judge found, however, that neither of these statements supported the appellants’ plea of justification in relation to any of the pleaded imputations, at [526]‑[529], [656].
The Judge found that the appellants had not proven any of the remaining six allegations, at [459], [502], [576], [610], [634].
The witnesses
The appellants called two witnesses to give evidence in support of the allegations they made in support of the plea of justification. These were Ms Norvill and Mr Mark Winter.
The evidence of Mr Winter was, the Judge noted, limited as it concerned only two of the matters on which the appellants relied, being (it seems) the first and the fifth, at [345].
This meant that the principal evidence on which the appellants relied for their defence of justification was that of Ms Norvill.
Mr Rush himself gave evidence concerning the appellants’ allegations and led evidence from three other witnesses: Mr Armfield, Ms Nevin and Ms Buday.
Before making his findings about each of the appellants’ allegations, the Judge made some general findings about the credibility and reliability of the six witnesses who gave evidence concerning them. We will return to some aspects of those findings shortly. For the present, however, we note that the Judge concluded that “[o]n the whole, … Mr Rush was a credible witness who gave honest and reliable evidence about the critical events in question”. His Honour regarded the evidence of Mr Armfield, Ms Buday and Ms Nevin as honest and reliable.
The Judge doubted the reliability and credibility of Ms Norvill’s evidence on critical matters. He gave detailed reasons for that conclusion. Many of the appellants’ submissions on the appeal were directed to these findings. Counsel for the appellants acknowledged that, in order for the appellants to succeed in their challenge to the Judge’s rejection of their defence of justification, it was necessary for them to show that the Judge’s findings concerning the credibility and reliability of Ms Norvill as a witness should be overturned. We will return to the Judge’s assessment of Ms Norvill’s evidence shortly.
As already noted, Mr Winter’s evidence was of relatively narrow compass. The Judge identified three matters which suggested “considerable doubt” about the reliability of his evidence generally. These were Mr Winter’s acknowledgement that his recollection of relevant events was “vague”, the fact that his description of the events in question was “not entirely consistent” with Ms Norvill’s evidence, and the “rather matter‑of‑fact way” in which Mr Winter had given his evidence.
The grounds of appeal concerning the defence of justification
Four of the appellants’ grounds of appeal concerned the Judge’s rejection of the defence of justification.
By Ground 9, the appellants contended that the Judge should have found that each of the six disputed incidents did occur and should have found that Mr Rush’s text of 10 June 2016 was “inappropriate”. The appellants did not challenge the Judge’s rejection of their defence concerning the “stage‑door Johnny crush” comment.
By Ground 10, the appellants contended that the Judge had, in seven separate respects, erred in finding that Ms Norvill was “an unreliable witness prone to exaggeration and lacking in credibility”. Ground 11 is in effect a particular of Ground 10(b) because it is a complaint that the Judge had erred by relying on an email of 6 April 2016 from Ms Annelies Crowe (the Crowe email) in his assessment of the credibility of Ms Norvill. Ground 12 is in effect a particular of Ground 10(e) because it is a complaint concerning the Judge’s assessment of the evidence of Mr Winter, and of the extent to which it supported the evidence of Ms Norvill.
The appellate approach
The approach required of an appellate court in determining challenges to findings of fact made by a trial judge is settled. In Fox v Percy [2003] HCA 22; 214 CLR 118 at [25]‑[29], Gleeson CJ, Gummow and Kirby JJ said:
[25]Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:
"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."
As this Court there said, that approach was "not only sound in law, but beneficial in … operation".
[26]After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
[27]The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
[28]Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
[29]That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
(Citations omitted)
The required approach was summarised most recently in the joint judgment of Bell, Gageler, Nettle and Edelman JJ in Lee v Lee [2019] HCA 28; 372 ALR 383 at [55]:
A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge" …
(Citations omitted)
The judgment of the Full Court of this Court in Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62 at [402]‑[415] also contains a comprehensive review of the authorities which we gratefully adopt.
The appellants’ submissions as to the application of these principles
The appellants accepted that any finding of fact by the Judge based to any substantial degree on his assessment of the credibility of a witness should stand unless it can be shown that his Honour failed to use, or palpably misused, his advantage or had acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. They submitted, however, that in this case, the Judge had “expressly disavowed” reliance on witness demeanour as providing the basis for his findings in relation to Ms Norvill’s reliability and credibility as a witness. The consequence, so the appellants submitted, is that this Court is in as good a position as the Judge to decide on the proper inferences to be drawn from the evidence; that the Court is obliged to weigh the conflicting evidence afresh; and that the Court is obliged to draw its own inferences and conclusions. The appellants also submitted that, given the disavowance of reliance on witness demeanour which they attributed to the Judge, it was not necessary for them to show that his Honour’s conclusions on his assessment of Ms Norvill’s evidence were “glaringly improbable”.
In our view, the appellants’ submission that the Judge had specifically disavowed reliance on witness demeanour involves a significant over simplification of his Honour’s reasons and should not be accepted. When properly understood, it is apparent that the Judge did not eschew reliance on his observations and assessments of the witnesses as they gave their evidence. It is apparent, on the contrary, that they were matters to which he did have significant regard. We state our reasons for this conclusion in the section of reasons which follows.
The use of demeanour
The Judge commenced his assessment by noting that witness demeanour is one consideration which may assist a judge in resolving conflicts in evidence, at [307]. It is apparent that in doing so, his Honour was using the word “demeanour” with its conventional meaning in this context, that is, as encompassing the matters which can be observed while the witness gives evidence and which are not apparent, whether in whole or in part, from the written record. These include the appearance of the witness and the manner in which he or she gives evidence. It is these matters which give trial judges advantages not shared by appellate judges.
The Judge noted, however, that it is well accepted that there are limitations on the inferences which can be drawn from the appearance of witnesses and referred, in this respect, to passages in the reasons of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy at [30]‑[31] concerning research which has cast doubt on the ability of judges to tell truth from falsehood accurately on the basis of appearance, at [308]. The Judge then noted other factors which may assist in determining the credibility of a witness and the reliability of his or her evidence: consistency with any previous account given by the same witness of the events in question; the plausibility and apparent logic of the events described by the witness; and the consistency of the witnesses’ account with other objectively established events, at [309]. His Honour then said that consideration of these matters is often a surer guide to the reliability of the evidence given by a witness about disputed events, at [309].
Having made these general observations, the Judge said, at [310]:
This is a case where such considerations, as opposed to witness demeanour, provide the main key to the resolution of the conflicts in the evidence.
(Emphasis added)
The appellants submitted that, by his statement in [310], the Judge had “expressly disavowed reliance on witness demeanour as providing the basis for his findings in relation to Ms Norvill’s reliability and credibility as a witness”.
A number of matters belie the accuracy of this submission. Instead, the Judge was indicating only that he would have particular regard to the considerations which he had identified in [309].
First, the Judge’s statement in [310] was not directed to the assessment of Ms Norvill’s evidence only, but to the evidence of all the witnesses who gave evidence about the matters on which the appellants relied for the plea of justification.
Secondly, the Judge described the considerations other than witness demeanour as the “main key” to the resolution of the conflicts in the evidence, not as the “sole key”.
Thirdly, it is apparent that, in the reasons which followed, the Judge did not exclude from consideration altogether his observations of the demeanour of the witnesses and of the manner in which they gave their evidence. As the Judge’s assessment of the witnesses is relevant not only to the appellants’ present submissions, but also to other grounds, we set out passages in the reasons which are indicative of the Judge’s use of demeanour.
In relation to Mr Rush, the Judge said that “[n]othing in his demeanour” suggested that he was not giving an accurate and honest account of the relevant facts and circumstances; that Mr Rush “did not appear” to be giving long‑winded answers (as the Judge found that he had on some topics) to avoid answering the questions; and that Mr Rush “presented” as a highly articulate and analytical person who was, “by his very nature” prone to giving such complex and wordy responses. The Judge also said that he viewed some of Mr Rush’s evidence about a conversation he had had with a Mr Trewhella shortly before 14 November 2017 as “less than impressive” but did not consider that his evidence about that one issue was such as to cast doubt on the reliability of his evidence as a whole.
In relation to Mr Armfield, the Judge said:
[320]Mr Armfield was an impressive witness. There was no issue about his credibility as a witness or the reliability of his evidence generally. Nationwide and Mr Moran did not suggest that any of his evidence should not be accepted. Despite his obviously close friendship with Mr Rush, I consider that he gave forthright, honest and reliable evidence about the facts and circumstances relevant to the allegations. Nationwide and Mr Moran did not submit otherwise.
(Emphasis added)
The Judge described Ms Buday as being, in some respects, “a unique, if not, rather unusual witness”, noting that she had, on more than one occasion, sung her answer to a question. His Honour assessed Ms Buday as “a difficult witness at times” who had occasionally been “needlessly disrespectful” to senior counsel for the appellants and “contemptuous” towards the appellants. Plainly, these were assessments based on the manner in which Ms Buday had given her evidence. The Judge took into account Ms Buday’s close friendship with Mr Rush but concluded that, despite these features, she had given “clear, direct and forceful answers to the questions … put to her in relation to the events and circumstances in question”. That assessment too turned at least in part on the Judge’s observations of Ms Buday as a witness. The Judge concluded:
[322]… I can see no reason why her evidence should not be accepted as being reliable. Nationwide and Mr Moran ultimately did not advance any submissions in relation to Ms Buday’s credibility as a witness, or put forward any reasons why any of her evidence should not be regarded as reliable. It certainly was not suggested that she was not telling the truth about her observations about the rehearsals and the interaction between Mr Rush and Ms Norvill.
The Judge described Ms Nevin as “an impressive witness”, saying that her “frankness and candour” on one issue on which she was challenged was to her credit, at [325]. The Judge concluded that Ms Nevin was “a frank, forthright and honest witness, and that her evidence was reliable”.
The Judge commenced his assessment of Ms Norvill’s evidence by reference to the difficulties which persons making allegations of sexual assault or sexual harassment often experience. He referred to the vulnerability of their position, the stress involved in giving evidence about such matters and the distress which being required to recall such matters can cause. His Honour noted that many of these considerations applied in Ms Norvill’s circumstances and said that he had taken them into account in assessing her evidence, at [328].
The Judge then said that, despite the difficult nature of her circumstances, Ms Norvill generally “presented” as an “intelligent, articulate and confident witness” who was “endeavouring to give an honest recollection of the events in question” and said that she “did not appear to be either nervous, uncertain or evasive”. These were observations based on Ms Norvill’s demeanour while giving evidence, and were favourable to her.
The Judge then said:
[330]Putting Ms Norvill’s demeanour to one side, however, there are a number of aspects to the evidence which raise significant issues about her credibility as a witness and the reliability of the evidence she gave concerning the disputed events. Those issues generally relate to the consistency or inconsistency of her version or account of the relevant events over time, and the consistency or inconsistency of her evidence with more contemporaneous statements or objective indications of the nature of her relationship with Mr Rush at the relevant time. There were also some indications in Ms Norvill’s evidence that she was a witness who was, at times, prone to embellishment or exaggeration.
(Emphasis added)
Mr Phillips was not cross-examined by counsel for the appellants.
The appellants submitted that the evidence in support of Mr Rush’s claim that he was so debilitated by the effect of the publications that he could not act was so unpersuasive that the claim ought to have been rejected. The appellants submitted that the Judge was in error in declining to draw an inference from the failure of Mr Rush to give direct evidence in support of this part of the claim that his evidence would not have assisted the case. They submitted that there had been a fundamental unfairness in not eliciting the evidence, which could then have been the subject of cross-examination. They submitted that had the Judge drawn that adverse inference, then Mr Rush would not have discharged his onus of proving the claim by the evidence of only Ms Menelaus and Mr Specktor.
Senior counsel for Mr Rush submitted that there was ample evidence concerning the causal contribution of Mr Rush’s emotional state upon his capacity to earn. There was no challenge to the evidence of Mr Rush about his emotional state, and there was no challenge to the evidence of others concerning their observations of Mr Rush’s emotional state following the publications. Counsel submitted that the emotional state described by Mr Rush was incompatible with the kind of high-pitch intellectual and emotional engagement necessary for acting at his level. For these reasons, it was submitted that there was no occasion to draw any inference of the kind alleged by the appellants.
In support of their submissions, the appellants relied on and read to the Court a passage from the reasons for judgment of Handley JA in Commercial Union Assurance Co of Australia Ltd v Ferrcom (1991) 22 NSWLR 389 (Ferrcom) at 418:
There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates “as the most natural inference that the party fears to do so”. This fear is then “some evidence” that such examination in chief “would have exposed facts unfavourable to the party”: see Jones v Dunkel (at 320-321) per Windeyer J. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions.
In Ex parte Harper; Re Rosenfield [1964-5] NSWR 58, to which Handley JA referred, the applicant was a tenant who was served with a notice to quit residential premises on the statutory ground that she had “reasonably suitable alternative accommodation” available for her occupation, and had an estate in the land upon which the accommodation was situated. The respondents, who were the landlords, obtained a warrant of possession after a hearing before a stipendiary magistrate. The respondents called the applicant as a witness in the proceeding and adduced evidence of her ownership of alternative accommodation, but not as to its availability for occupation. Asprey J held, at first instance, that:
I do not know and was not referred by counsel to any authority which established that proof of the ownership of real property on a particular date is, without more evidence of a right in the owner to possession of that property for the purpose of the owner’s personal occupation as at that date, and as the onus lies upon the respondents as claimants to prove the necessary ingredients of fact to establish the prescribed ground in question, I think that they have failed to do so. In any event, I do not think that such an inference is permissible in circumstances where evidence of the fact of ownership is given in a context of other evidence which discloses that the subject premises are let from time to time and are not always available to the owner thereof, and in particular, where the claimants, bearing the onus of proof, refrain from asking the crucial questions in relation to the material date after they had called the owner as a witness in their own case (cf. Marks v. Thompson (1937) 1 NYS (2d) 215, at p. 218).
(Emphasis added)
Ex parte Harper; Re Rosenfield was affirmed on appeal: [1964-5] NSWR 1831 (Clancy ACJ, Brereton and Manning JJ). We do not consider that the decision of Asprey J is authority for a general proposition that inferences cannot be drawn in favour of a party who calls a witness and refrains from asking a crucial question, but the case is an instance where the existence of other evidence meant that the failure to ask the crucial question had significance. As Thawley J observed in Stallion (NSW) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [2019] FCA 1306 at [67], the significance of a failure to adduce evidence-in-chief from a witness called by a party varies according to the particular circumstances of the case.
In Ferrcom¸ Handley JA also cited Milliman v Rochester Ry Co 3 App Div 109; 39 NYS 274 (1896), which was an appeal from orders made following a civil jury trial where the trial judge drew the attention of the jury to the fact that an eye witness to an accident who had been called by the plaintiff had not been examined on an important issue, and charged that this omission might be taken into account in determining on which side the truth lay. The Appellate Division of the Supreme Court of New York held that the direction was not in error and Follett J, who gave the opinion of the majority, stated at 276:
… I think the omission to interrogate a friendly witness in respect to facts presumably within his knowledge, is more significant than the failure to call such a person as a witness, and that the presumption that the testimony would not have been favorable to the party’s case is stronger than the one which arises from the failure to produce such a person as a witness.
Ferrcom, and Milliman v Rochester Ry Co, were cited by the Full Court of this Court as being pertinent in Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256; 148 FCR 68 at [159] and [160] (Tamberlin, Mansfield and Allsop JJ). Ferrcom was also cited by the Full Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466, where at [230] the Court (Weinberg, Bennett and Rares JJ) referred to the statements of Handley JA.
Some care needs to be taken in approaching the observations of Handley JA in Ferrcom to the extent that his Honour might be taken to have suggested that the relevant inference is that the examination-in-chief would have exposed facts unfavourable to a party. Kirby P, who with Handley JA made up the majority in Ferrcom, gave separate reasons for judgment and did not address the point of principle discussed in the above passages, and did not cite Milliman v Rochester Ry Co: cf, the third and fourth paragraphs of the headnote to Ferrcom at 22 NSWLR 389. The words from the reasons of Windeyer J in Jones v Dunkel at 320-321 which Handley JA cited in Ferrcom were from a passage in Wigmore on Evidence (3rd edition, 1940) vol 2, s 285, p 162, which Windeyer J cited and described as “plain commonsense”. The issue in Jones v Dunkel was what directions were to be given to a civil jury in relation to the plaintiff’s proof when the defendant had failed without explanation to call a relevant witness. On the relevant point, the other members of the majority in Jones v Dunkel expressed themselves differently. Kitto J at 308 stated that the jury should have been told that “any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence”, and that it was proper for them to conclude that the evidence of a witness who did not give evidence “would not have assisted”. See also Menzies J at 312.
We respectfully agree with Nettle JA (with whom Chernov JA agreed) in Berrigan Shire Council v Ballerini [2005] VSCA 159; 13 VR 111 at [66] that the observations of Handley JA in Ferrcom should not be understood as meaning more than that the failure of a witness to give evidence may enable a tribunal of fact to infer that the evidence which might have been given “would not have helped that party’s case”, citing Brandi v Mingot (1976) 12 ALR 551 at 559‑560 (Gibbs ACJ, Stephen, Mason and Aickin JJ), which in turn approved O’Donnell v Reichard [1975] VR 916 at 929 (Newton and Norris JJ). Nettle JA stated that while the words used by Windeyer J in Jones v Dunkel were apt to imply something more, as did the American authorities which Handley JA considered, the position in Australia was to be governed by the passage which Nettle JA cited from Brandi v Mingot.
Subsequently, the principles that may be engaged when a witness called by a party is not asked questions on a particular issue were addressed in obiter dicta in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361, where the majority (Heydon, Crennan and Bell JJ) stated at [63]-[64]:
63The rule in Jones v Dunkel (58) is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness (59). The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn (60). These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue (61). That problem did not arise here. The plaintiff’s counsel did ask the plaintiff relevant questions.
64The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party …
(Emphasis added and citations omitted)
In footnote (61) to [63] as set out above, Heydon, Crennan and Bell JJ cited the reasons of Handley JA in Ferrcom, and continued, “Handley JA stated some stronger propositions in those passages, but what he said is at least authority for what is stated above”.
The type of inferences that may be drawn from a failure to call a witness, and the effect of such a failure on the cogency of proof, were considered in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 345. In the joint judgment at [165]-[166], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated:
165Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC.
166Lord Mansfield’s dictum in Blatch v Archer [(1774) 1 Cowp 63 at 65 [98 ER 969 at 970]] that “[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded … that the maxim was not engaged for “it would have been very improper to have called” the person whose account of events was not available to the court.
Their Honours went on to state at [167] that the Court’s decision in Jones v Dunkel was “a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used”.
In the present case, apart from the citation in oral argument of Ferrcom, the appellants’ written submission was that the Judge should have drawn an inference that Mr Rush’s evidence about the effect of the publications on his ability to work “would not have assisted his case”. That submission adopted the conventional understanding of the type of inference that may be drawn upon engagement of the principles referred to in Jones v Dunkel, Brandi v Mingot, Kuhl v Zurich Financial Services Australia Ltd, and Australian Securities and Investments Commission v Hellicar. The appellants’ submissions require that the Court review Mr Rush’s evidence concerning his frame of mind and his acting work following the publications.
Before addressing Mr Rush’s evidence, we shall sketch out some of the temporal framework, much of which we have referred to already in other contexts. After the publications on 30 November and 1 December 2017, the proceeding was commenced on 8 December 2017. There were four significant developments in the proceeding in relation to the appellants’ defence to Mr Rush’s statement of claim. First, and as we have mentioned, a hearing of Mr Rush’s application to strike out the appellants’ defence to the extent that it pleaded justification and statutory qualified privilege took place on 19 February 2018, and on 20 March 2018, the Judge struck out the relevant paragraphs. Second, on 16 April 2018, there was a hearing of an application by the appellants for leave to file a further amended defence and a cross-claim naming the Sydney Theatre Company. On 20 April 2018, the Judge allowed the application to file a further amended defence in part, but refused leave to the appellants to file a cross claim: Rush (No 2). Also on 20 April 2018, the Judge fixed the proceeding for hearing on 3 September 2018 upon an estimate of eight days. Third, on 27 April 2018, the Full Court dismissed the appellants’ application for leave to appeal the Judge’s orders made 20 March 2018 relating to the decision to strike out the statutory qualified privilege defence. Fourth, on 8 August 2018, the Judge gave leave to the appellants to file a second further amended defence, in which a reformulated truth defence was raised. As a consequence, the hearing date of 3 September 2018 had to be vacated, and the hearing was re-fixed for 22 October 2018 upon an estimate of 14 days. Mr Rush commenced his evidence-in-chief on 23 October 2018, which was less than 11 months after the publications. Mr Rush’s evidence about his frame of mind, and his work situation after the publications, should take account of the relatively short timeframe between the publications and the trial.
At the time of the publications, Mr Rush was an actor in his 60s who was in demand, and who had worked constantly and consistently over the years. His work had included theatre, television, film, and narrations and voiceover work. Mr Rush gave evidence that he had not noticed any diminution in the work that he was being offered prior to the publications, and that he had intended to keep working. Mr Rush gave evidence that he had not undertaken any paid work since the publications, and that his income of $45,000 since the publications was on account of residuals. Mr Rush said that he had nothing in the pipeline.
Mr Rush was President of the Australian Academy of Cinema and Television Arts, and had been so since 2011. On 1 December 2017, which was the day of the second series of articles in the Daily Telegraph, Mr Rush was asked by the Academy to “step aside” as its President, to which Mr Rush agreed.
At the time of the publications, Mr Rush had been engaged to perform the role of Malvolio in the Melbourne Theatre Company production of Shakespeare’s Twelfth Night, which was to be staged in late 2018. Twelfth Night had been due to go into rehearsal at about the time Mr Rush gave his evidence, and was to be staged shortly thereafter. Otherwise, at the time of the publications, Mr Rush had completed the film Storm Boy, and was “waiting for the phone to ring”.
In February 2018, Mr Rush was asked to perform a voiceover for a documentary on the Great Barrier Reef. In April 2018, and on account of the publications, Mr Rush was informed that the producers had withdrawn the offer because of his situation.
In mid-2018, Mr Rush took a family holiday in Umbria and then London because of the effect of the “accumulation of events”, which included “the wear and tear of toing and froing with News Corp and my legal team”, and the fact that his wife’s mother had died in early May 2018. While he was away in Italy, Mr Rush pondered whether to go ahead with Twelfth Night. He gave evidence that he “had pretty much made up my mind that the kind [of] mental and physical state that I was in, I would not be able to actually play this role to the best of my ability in this very adult, very dark …”. He gave evidence that he spoke to the director of Twelfth Night, Mr Phillips, in London and told him that, “I may have to withdraw from the production, because I don’t think I’ve got it in me.” Mr Rush was asked to amplify his evidence about his mental and physical state at the time, and he stated:
… around about March or April the degrees of sleeplessness and poor appetite and feeling hurt myself about the levels of distress it was creating in my son and daughter and my wife and some close friends, but I was weak. I was weakening. And I know the kind of stamina – this play is strong and is challenging in many ways, from the comedy spectrum as Lear. It’s a three-hour play. And I know how to read my sense of self – my capabilities. And I had reached – I had hit a brick wall.
Mr Rush went on to describe how he thought his presence in the production of Twelfth Night would also spoil it, because of the strain that had been building up, and that he felt that his presence could overwhelm the purity of the play. In June 2018, Mr Rush withdrew from Twelfth Night “because of the events of the last 11 months”. Mr Rush described the period after the publications as the “worst 11 months of my life” and stated that the publications were “dismantling how I felt as a person”.
During the course of Mr Rush’s evidence-in-chief, senior counsel for the appellants objected to the evidence about Mr Rush’s withdrawal from Twelfth Night on the ground that it was not part of “the special damages claim”, and sought that there be a restriction placed on the evidence on the ground that it had not been pleaded or particularised on that issue. The Judge placed a temporary limitation on the use of the evidence on the basis that it was limited as going to Mr Rush’s feelings at the time. Later in the trial, senior counsel for Mr Rush applied for the limitation to be lifted, over the objection of the appellants. The Judge reserved on the question, and at [806]-[807] of the reasons for judgment determined to remove the temporary restriction on Mr Rush’s evidence. There is no appeal by the appellants from the Judge’s decision to remove the temporary restriction.
Mr Rush was cross examined about his claim that as a result of the publications he had been unable to work. The cross-examination on this topic commenced with Mr Rush’s attention being drawn to one of the assumptions that his expert forensic accountant, Mr Potter, was asked to make in a letter dated 14 June 2018, and to which we have referred at [523] above:
Q:And the paragraph (f) that I’m drawing your attention to is – begins:
As a result of the matters complained of, Mr Rush has been unable to work.
Q:Do you see that?
A:Yes.
Q:Continuing:
As a result of the matters complained of, Mr Rush has been unable to work since publication of the matters complained of, and is unlikely to be able to work for some time in the future.
Q:And that’s a letter that your solicitors – turn back one page – you see it’s a letter of 14 June 2018 from your solicitors to Mr Potter – to Michael Potter?
A:Yes.
Q:And that letter was sent on your instructions?
A:Yes.
Q:And you see it says there, in that little paragraph (f), that you have been:
…unable to work since publication of the matters complained of, and is unlikely to be able to work for some time in the future.
Q:Do you see that?
A:Mmm.
Q:Well, that wasn’t really true, was it, Mr Rush, because you hadn’t made up your mind, had you, as at the time that that letter was sent, whether you would appear or not in Twelfth Night?
A:No. It was – doing Twelfth Night was still as high on the agenda, given the circumstances, as it could be.
The idea that Mr Rush was capable of working as an actor at his level, notwithstanding the evidence that he gave about his mental and physical state that had led him to withdraw from Twelfth Night, was not explored by the appellants in cross-examination. Indeed, apart from the cross-examination set out at [559] above, the circumstances in which Mr Rush withdrew from Twelfth Night were not challenged by the appellants, and nor did the appellants challenge Mr Rush’s evidence that he had nothing else in the pipeline.
The appellants’ submission that Mr Rush did not give evidence about the debilitating effect of the publications on his ability to act must be rejected. In the context of the only major role for which he was booked at the time of publications, Mr Rush gave evidence about the wear and tear upon him, and the effect that the publications had on his ability to perform the role. The withdrawal from Twelfth Night occurred only a relatively short time before the first hearing date of the proceeding on 3 September 2018, before it was re-fixed for 22 October 2018. In relation to the evidence about Mr Rush’s withdrawal from Twelfth Night, the appellants had the opportunity to cross examine Mr Rush, and did so, but only to the limited extent set out at [559] above. In these circumstances, there was no unfairness to the appellants, who appear to have made a forensic choice to leave much of the relevant evidence on the topic of Mr Rush’s hurt and his physical and mental state at the time he withdrew from Twelfth Night largely unchallenged. There was therefore no occasion for the Judge to draw any inference that any further evidence of Mr Rush about the topic of his inability to perform would not have assisted his case. The combined force of Mr Rush’s evidence, and the evidence of those who were around him, provided solid support for the Judge’s findings, which have not been shown to be in error.
Was there evidence to support the pleaded case that Mr Rush had received no offers of work?
Mr Rush gave evidence about the work that was available to him at the time of, and in the period after, the publications. He gave evidence that at the time of the publications he was “waiting for the phone to ring”, of the role he had in Twelfth Night from which he withdrew, and of the offer for the voiceover in the Barrier Reef documentary which was withdrawn from him. He referred to no other offers of work. He was not challenged in cross-examination so as to suggest that he had received any other offers of work in the 11 month period following the publications.
Mr Specktor, who was Mr Rush’s American agent, gave evidence about offers for work. At [25] of his written report he stated that:
Even If Mr Rush’s case is successful, and he is cleared by the Court. I think there would still be a lag of twelve months or more before he would receive offers for movies at the same rate as before the publication of the articles.
Mr Specktor was cross-examined about this paragraph:
Q:And can we take it that what you’re saying there is that he would receive offers if he’s cleared by the court, but you think it might be at a lower rate?
A:Well, I can’t answer that, because I’m not fielding any offers at the moment.
In response to some questions by the Judge, Mr Specktor clarified that when using the word “rate” he was referring to the number of pictures. The cross-examination continued:
Q:So what you’re assuming there, Mr Specktor, is that he would receive some offers but not at the same rate. That’s the implication in that sentence, isn’t it?
A:You can call it an implication. Okay? I wasn’t quite looking at these things quite in the same way. We’re sitting in a courtroom now, and you’re asking certain things about what’s here. I know what the facts are now. Okay? I really do. I know that he is damaged as a human being. Okay? Damaged as a human being because of this garbage that was in the newspaper. Okay? That much I know, and – and that’s what concerns me. That’s what concerns me about his ability to work. My job is to go get him jobs. Okay? That’s what my job is, not to answer the telephone when somebody calls up.
Q:Mr Specktor, the proposition I’m putting to you is this. Would you please attend to it. You believe that, if he’s cleared, he will at least get some offers, but it might not be at the same rate as before for 12 months or more. That’s what you’re trying to say in - - -?---I – I – I believe ..... there’s some lag time to this, but it’s more important – his ability to work, even if he gets offers – this has damaged him. Ask yourself the question if this was you that was in that newspaper.
The Judge commented at [840] of the reasons for judgment that there was some force in the appellants’ submission concerning the paucity of evidence relating to offers of work during the relevant period. His Honour observed at [841] that Mr Rush’s Australian agent, Ms Churchill-Brown, did not give evidence. His Honour had the benefit of seeing Mr Specktor give his evidence, and stated that he did not give evidence specifically about the receipt or non-receipt of offers of work during the period between the publications and trial. And at [842], his Honour stated that the evidence of Mr Specktor “strongly supported the inference that Mr Rush had not worked because both he and his agent believed that he was unable to work”.
As we stated at [530] above, the Judge awarded damages for past economic loss on the primary basis of the effect that the publications had on Mr Rush’s ability to act. Mr Rush was not working at the time of trial, and had nothing in the pipeline. In relation to future economic loss, as we mentioned at [494] above, his Honour held that even putting Mr Rush’s inability to work to one side, the defamatory articles were a cause of Mr Rush’s lost earning capacity because the almost inevitable result of the publications was that Mr Rush would have received fewer offers of work because of the damage to his reputation. At [847], his Honour held that even if Mr Specktor was “fielding offers”, there would nevertheless have been fewer offers of work in any event. This finding is to be set against the evidence about Mr Rush’s reputation after the publications, such as that of Ms Judy Davis who said that she had heard people say that Mr Rush’s “career was finished”, and the evidence of the former Hollywood studio executive Ms Russell about the ferocity of the #MeToo movement. The Judge held at [816] that there could be little doubt that the publications had a devastating effect on Mr Rush’s reputation as an actor.
We consider that no error has been demonstrated in relation to the Judge’s findings on the topic of whether Mr Rush had received any offers of work following the publications. The Judge took account of the appellants’ submissions in relation to the state of the evidence about whether there had been no offers of work, and ultimately, whether there had been no offers was not material to his Honour’s path of reasoning.
The quantification of damages on account of lost earning capacity (Ground 18)
Ground 18 is in the following terms:
The primary judge erred in awarding special damages for a period of two years after judgment (on a sliding scale) in circumstances where the expert evidence called on behalf of the respondent by his agent, Mr Specktor, was that the Respondent would receive offers at the same rate in about 12 months.
In considering Ground 18, the starting point is that, as framed, Ground 18 misstates the evidence that Mr Specktor gave, and does not take account of the other evidence that formed the basis of the Judge’s findings. We have set out [25] of Mr Specktor’s written report at [563] above, where he referred to a period of lag of twelve months or more before Mr Rush would receive offers for movies at the same rate.
As to the relevant findings of the Judge, his Honour relied on the evidence of Ms Russell and Mr Schepisi in addition to the evidence of Mr Specktor. The relevant findings included the following at [892]:
First, I accept the evidence of Mr Specktor, Mr Schepisi and Ms Russell that even if Mr Rush was able to work after his reputation is vindicated, there would be a lag of at least 12 months before Mr Rush received any offers for movies at the same rate as before the publication of the articles. It follows that Mr Rush is unlikely to receive any significant income in the first 12 months after the delivery of this judgment. I should perhaps also emphasise that this 12 month period would in any event coincide with the period during which, on my assessment of the evidence, Mr Rush would not be able to work in any event.
The evidence of Ms Russell, at [28]-[30] of her report, included:
28… While the numbers and the behaviors and levels of tolerance have changed over the years, I have never seen anything slam into the wall with as much speed and ferocity as the “#MeToo” movement. Unfortunately for Mr. Rush, false claim or not, the movement, being in its infancy, has not refined its response or addressed behaviors in the gray areas. Perhaps it will evolve to such a place, but by then Mr. Rush’s career is likely to be irreparably damaged.
29.Even if Mr. Rush is successful in these proceedings, and the Court finds the allegations made against him are false, it is quite likely Mr. Rush will not receive the same offers he was receiving prior to the publications. …
30.If he does start to receive offers again, following a judgment in his favour, there would still in my opinion be a lag period of at least 12 months, and possibly more, between the judgment and those offers. Directors and producers are not likely to want to take a risk by casting Mr. Rush while the allegations are still fresh in the minds of the public (even if those allegations are found to be false).
The evidence of Mr Schepisi at [25]-[26] of his report was as follows:
25.In my opinion, not even the most favourable possible outcome in court - that the allegations made against Mr. Rush are completely false - would return Mr. Rush to the position he was in prior to the articles being published. For the producers and distributors there is the fear the stigma will stick regardless. Even if Mr. Rush is cleared of all alleged misconduct, in the current environment, there might always be some doubt in the eyes of the public. They are likely to only remember the allegations because they find them far juicier than the verdict, and that is fuelled by social media and the internet constantly.
26.Furthermore, even with the most favourable outcome in court it is reasonable to assume there would be a delay of twelve to eighteen months before anyone would even start to think of considering Mr. Rush for film work of the level he has been used to.
The appellants relied on their written submissions in relation to Ground 18, in which they claimed in relation to the evidence of Mr Specktor that while offers for movies could be at the “same rate” as before the publication in about 12 months or more, there was no evidence as to what that “rate” was, as there was no evidence of the number of offers that Mr Rush had received prior to the publications. The appellants submitted that Mr Rush’s film history demonstrated that he worked on approximately one main film per year. The appellants submitted that accordingly, it may be assumed that Mr Rush only needed one offer to be back where he was before the publications, and in those circumstances, the Judge’s allowance of damages for a period up to two years after judgment on a sliding scale was beyond that supported by the evidence. The appellants also submitted that the Judge’s findings based upon a “rate” were purely speculative in circumstances where there was no evidence of what the pre-publication rate was.
The appellants’ submissions that are referred to above reflected submissions that they made to the Judge at trial. In our view, the submissions went beyond the terms of Ground 18, which implicitly accepts that there was a reduction in the rate of work offered to Mr Rush, but alleges error in the period over which the loss was calculated. In this regard, the appellants had also submitted at trial, evidently in the alternative, that “[t]aking the Hollywood experts’ evidence together the worst case scenario for [Mr Rush] appears to be a lag time of 12-18 months after judgment”, which largely corresponds to the findings that the Judge made.
At [837] of the reasons for judgment, the Judge stated that nobody had seriously questioned that Mr Rush’s career and earning capacity had been damaged by the publications, but the question was what would happen if Mr Rush’s reputation was eventually vindicated by the proceeding. At [841], the Judge observed that Mr Rush’s Australian agent did not give evidence, and that Mr Specktor did not give evidence specifically about the receipt or non-receipt of offers during the period between the publications and trial.
As we have mentioned, at [842], the Judge stated that Mr Specktor’s evidence strongly supported an inference that Mr Rush had not worked because both he and his agent believed that he was unable to work. At [847] and [861], the Judge held that, even putting Mr Rush’s inability to work to one side, the defamatory articles were a cause of Mr Rush’s lost earning capacity because “the almost inevitable result of the publications was that Mr Rush would have received less offers of work because of the damage to his reputation”. There is no challenge on appeal to this finding, but as we have indicated, Ground 18 is directed to the period of loss, which the Judge found would extend to 24 months after judgment.
It is important to recognise that the findings by the Judge concerning the likely effect of the publications on Mr Rush’s income from acting after judgment in the proceeding were estimations as to future events to which the principles essayed in Malec v J C Hutton Pty Ltd[1990] HCA 20; 169 CLR 638 (Malec) applied. Damages founded on such hypothetical evaluations defy precise calculation: Malec at 640 (Brennan and Dawson JJ). And the future course of Mr Rush’s earning capacity was not susceptible of scientific demonstration or proof. As with the assessment of many heads of damage at common law, if lost earning capacity is established, the Court must do its best to quantify the damages for that loss, even if a degree of speculation is involved, and a broad brush approach has to be taken: Malec at 643 (Deane, Gaudron and McHugh JJ); Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; 166 CLR 394 at 404 (Wilson, Dawson, Toohey and Gaudron JJ); Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; 174 CLR 64 at 83 (Mason CJ and Dawson J).
We are not persuaded that there was any error by the Judge in estimating that the work available for Mr Rush would not commence to increase until at least 12 months from judgment, and that the available work would then increase to the point that his earning capacity would be restored 24 months from judgment. His Honour’s estimation involved a significant but permissible degree of conjecture and speculation and smoothing of detail. On the evidence, the Judge’s estimation might have been much more pessimistic, and the damages might have been assessed at a much higher level having regard to the opinions of Ms Russell and Mr Schepisi, and taking account of the matters that Ms Russell addressed concerning the levels of tolerance, the ferocity, and the unrefined responses of the #MeToo movement. The Judge recognised that his assessment was optimistic. He tempered his assessment of damages, taking account of Mr Rush’s obvious skills as an actor, and the respect and admiration which he had in the industry prior to the publications, which his Honour considered would place him in good stead to recover his earning capacity over time.
For the above reasons, Ground 18 is rejected.
Conclusions
As we stated at the outset, during the hearing of the appeal, the appellants wholly abandoned their grounds alleging apprehended bias. Otherwise, the appellants have failed to sustain any of their other grounds of appeal. The appeal shall therefore be dismissed.
When at the hearing of the appeal the Court gave leave to the appellants to file their second further amended notice of appeal, which formally abandoned the claims of apprehended bias, senior counsel for Mr Rush sought costs thrown away on an indemnity basis. At that time, we reserved the question of costs thrown away on an indemnity basis until the determination of the appeal, so that question remains to be considered.
We shall direct that the legal practitioners for the parties confer for the purposes of agreeing on orders for costs, or at least narrowing the issues in dispute. That agreement might extend to agreeing costs in a lump sum, or alternatively agreeing that costs should be assessed in a lump sum: Jadwan Pty Ltd v Rae & Partners (A Firm) (No 2) [2020] FCAFC 95 at [9]-[12]; Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42 at [19]. If there is no agreement as to the form of orders for costs which should be made, we shall receive written submissions on the question of costs, and, subject to any further order, we shall determine the question of costs on the papers.
I certify that the preceding five hundred and eighty-three (583) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices White, Gleeson and Wheelahan. Associate:
Dated: 2 July 2020
ANNEXURE A
ANNEXURE B
ANNEXURE C
ANNEXURE D
ANNEXURE E
- AGLC
- Nationwide News Pty Limited v Rush [2020] FCAFC 115
- Case
- [2020] FCAFC 115
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the primary Judge had erred in identifying the defamatory imputations, assessing credibility, and evaluating the reliability of evidence. Additionally, the court had to determine whether the Judge had correctly assessed damages for non-economic loss, considering the seriousness of the imputations and the appellants' conduct. The appeal also raised questions about the admissibility of opinion evidence from witnesses who knew the respondent and the principles governing the assessment of damages for economic loss. Furthermore, the court examined the justification defence and the publication of the defence contents in the newspaper.
The court concluded that the primary Judge had not erred in his findings regarding the defamatory imputations, credibility assessments, and the reliability of evidence. The court found that the Judge’s approach to the evidence was sound, and there was no basis to conclude that the Judge had disavowed reliance on witness demeanour. The court also upheld the award of $850,000 for non-economic loss, considering the serious nature of the imputations and the harm caused to Mr Rush. The court found no error in the Judge's assessment of damages for economic loss, noting that the incapacity to earn was properly pleaded and maintained at trial. The court rejected the appellants' arguments concerning the admissibility of opinion evidence and the assessment of damages for future economic loss.
The appeal was dismissed, and the parties were directed to confer on the question of costs of the appeal. If the parties could not agree, written submissions were to be filed, and the court would determine the question of costs on the papers. The court ordered that the legal practitioners for the parties confer in relation to the form of orders for costs, and if necessary, the court would receive written submissions and determine the costs on the papers.
Orders
Orders of the court
1. The appeal is dismissed.
2. On or before 10 July 2020 the legal practitioners for the parties confer in relation to the question of costs of the appeal, and the form of orders as to costs that the Court should make.
3. On or before 17 July 2020 the parties file and serve any submissions as to costs, not to exceed three pages.
4. On or before 24 July 2020 the parties file and serve any submissions as to costs in reply, not to exceed three pages.
5. If the parties at any relevant point file an agreed note as to costs, further compliance with Orders 2 to 4 above is dispensed with.
6. Subject to any further order, the question of costs shall be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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