Rush v Nationwide News Pty Ltd (No 6)

[2018] FCA 1851

FEDERAL COURT OF AUSTRALIA

Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851

File number:

NSD 2179 of 2017

Judge:

WIGNEY J

Date of judgment:

6 November 2018

Catchwords:

PRACTICE AND PROCEDURE – application for leave to further amend defence – inclusion of new particulars of truth as part of defence of justification – new allegations concerning applicant’s conduct by prospective witness – where amendments of considerable potential importance to defence – where reasonable explanation for delay – where amendment application made at late stage in trial – where applicant would suffer prejudice as a result of amendments – application dismissed

PRACTICE AND PROCEDURE – application pursuant to s 37AF Federal Court Act 1976 (Cth) – application for suppression and non-publication orders – where interim orders made pursuant to s 37AI Federal Court Act 1976 (Cth) – where publication of matters the subject of suppression or non-publication order would destroy, or frustrate or undermine, the purpose for which defamation proceedings are brought – where prejudice suffered by applicant if matters were published in connection with proceedings transcends mere embarrassment – whether circumstances amounted to the bringing of improper pressure to bear on applicant or constituted contempt of court or abuse of process – insufficient evidence to support a finding of abuse of process or contempt of court – interim suppression and non-publication orders continued until further order

EVIDENCE – admissibility of file note of discussions between applicant’s legal representatives, prospective witness’s legal representatives and Registrar of the Court – whether file note covered by privilege in s 131 Evidence Act 1995 (Cth) – whether file note excluded by s 53B Federal Court Act 1976 (Cth) – whether discussions were part of a mediation – whether file note fell within exception in s 131(2)(k) Evidence Act 1995 (Cth) – file note admitted on the voir dire – file note ultimately excluded from evidence

Legislation:

Defamation Act 2005 (NSW), ss 25, 29, 30

Evidence Act 1995 (Cth), ss 11, 131

Federal Court of Australia Act 1976 (Cth), ss 37AA, 37AE, 37AF, 37AG, 37AI, 37M, 37N, 53B

Cases cited:

Allen v John Fairfax & Sons Ltd (unreported, Supreme Court of New South Wales, Hunt J, 2 December 1988)

Anderson v Mirror Newspapers Ltd & Anor (No 2) (1986) 5 NSWLR 735

Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

A v Commissioner of Taxation [2016] FCA 1307

Channel Seven Adelaide Pty Ltd v Manock (2010) 273 LSJS 70

Doe v Dowling [2017] NSWSC 1793

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52

Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299

Hogan v Australian Crime Commission (2010) 240 CLR 651

In the Matter of Petrolink Pty Ltd; Smith v Boné [2014] FCA 1024

Nationwide News Pty Ltd v Rush [2018] FCAFC 70

Maisel v Financial Times Ltd (No 1) (1915) 112 LT 953

Rush v Nationwide News Pty Ltd [2018] FCA 357

Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550

Rush v Nationwide News Pty Ltd (No 4) [2018] FCA 1558

R v Kwok (2006) 64 NSWLR 335

Versace v Monte [2001] FCA 1565

W v M [2009] NSWSC 1084

Date of hearing:

2 November 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Other Federal Jurisdiction

Category:

Catchwords

Number of paragraphs:

159

Counsel for the Applicant:

K Smark SC with S Chrysanthou

Solicitor for the Applicant:

HWL Ebsworth Lawyers

Counsel for the Respondents:

T Blackburn SC with L Barnett

Solicitor for the Respondents:

Ashurst Australia

Counsel for the Media Respondents in the Suppression Application:

D Sibtain

Solicitor for the Media Respondents in the Suppression Application:

Macpherson Kelley

ORDERS

NSD 2179 of 2017

BETWEEN:

GEOFFREY ROY RUSH

Applicant

AND:

NATIONWIDE NEWS PTY LTD

First Respondent

JONATHON MORAN

Second Respondent

JUDGE:	WIGNEY J
DATE OF ORDER:	6 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The respondents’ interlocutory application filed in Court on 30 October 2018 is dismissed with costs.

2.The interim suppression and non-publication orders made on 30 October 2018 be continued until further order.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)

WIGNEY J:

1. The trial of Mr Geoffrey Rush’s defamation action against Nationwide News Pty Ltd and Mr Jonathon Moran commenced on 22 October 2018. It was allocated 14 hearing days. On 30 October 2018, the seventh day of the trial, Nationwide and Mr Moran applied for, and were granted, leave to file in Court an interlocutory application seeking, amongst other things, an order that they be granted leave to file a third further amended defence. The proposed amendments to the existing defence are, on just about any view, substantial and significant. They include the insertion of entirely new particulars of truth of some of the pleaded imputations as part of Nationwide and Mr Moran’s defence of justification pursuant to s 25 of the Defamation Act 2005 (NSW). Those particulars raise a series of entirely new allegations concerning Mr Rush’s conduct by a prospective new witness. That prospective witness will be referred to throughout these reasons as “witness X”. 

2. The reason for that pseudonym is that, as soon as Nationwide and Mr Moran sought leave to file the interlocutory application in Court, Mr Rush applied for non-publication and suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) in respect of witness X’s identity and the nature of the allegations made by her. Interim non-publication and suppression orders were made pursuant to s 37AI of the Federal Court Act until a determination of the substantive application under s 37AF.

3. As will be seen, witness X and the new allegations which form the basis of the proposed new particulars of truth have nothing to do with Mr Rush’s conduct during the Sydney Theatre Company’s production of King Lear in late 2015 and early 2016.  It was Mr Rush’s conduct during the production of King Lear which was the main, if not sole, focus of the articles which Mr Rush contends were defamatory of him.  Mr Rush was first advised of the new allegations, the new witness and the application to amend the existing defence on the evening of Sunday, 28 October 2018.  It will be necessary to say something more in due course concerning the chain of events that apparently led to the filing of the interlocutory application in Court on 30 October 2018.

4. As events transpired, the amendment application was not able to be heard until the afternoon of Friday, 2 November 2018, the tenth day of the trial.  The reason that the application was not able to be dealt with until that day was that Mr Rush’s counsel were not immediately able to deal with it when it was filed on 30 October 2018.  There was a good reason for that.  While copies of the interlocutory application and supporting affidavit were apparently served at some time during the evening of Sunday, 28 October 2018, two important witnesses were to be called in Mr Rush’s case on 29 October 2018.  Perhaps more significantly, the main witness to be called by Nationwide and Mr Moran, Ms Eryn Jean Norvill, was due to be called to give evidence on 30 October 2018.  It was reasonable for Mr Rush’s counsel to focus on preparing for the cross-examination of Ms Norvill. 

5. Once Ms Norvill was called, it would have been inappropriate to interrupt her evidence, particularly during cross-examination, to hear the interlocutory application.  It was also not possible to hear the application immediately after Ms Norvill’s evidence was completed late on the afternoon of 31 October 2018.  That was because other witnesses had to be called on 1 and 2 November 2018 due to issues with their availability.  The end result was that, by the time the amendment application by Nationwide and Mr Moran was heard, together with Mr Rush’s application for non-publication and suppression orders, the evidence of the parties in relation to the substantive defamation action, as presently pleaded, was almost complete.  The only remaining witnesses were two expert accounting witnesses whose evidence related to the calculation of any economic loss suffered by Mr Rush should his claim in defamation be found to be made out.  It was agreed that the evidence of those two witnesses would be heard on Monday, 5 November 2018, again on the basis that they were effectively only available then. 

6. The hearing of Nationwide and Mr Moran’s amendment application and Mr Rush’s application for non-publication and suppression orders concluded at about 5.00 pm on 2 November 2018.  Judgment was reserved.  In light of the fact that the expert accounting witnesses were to be called on 5 November 2018, it was indicated that judgment would be handed down on 6 November 2018. 

7. The evidence of the expert accounting witnesses has now been heard.  It follows that the amendment application by Nationwide and Mr Moran is to be decided at a point when, but for the amendment application, the case would be all but complete.  All that would remain would be final submissions.  If the amendment is allowed, however, it will be necessary to adjourn the matter part-heard.  That was effectively conceded by Nationwide and Mr Moran.  That is because witness X would not be available to give evidence during this, the final, week that has been set aside for the trial.  Indeed, it was suggested that witness X would not be able to give evidence, other than perhaps by video link, before the end of February 2019.  In any event, given that Mr Rush and his legal team were not even notified of the amendment application and the allegations made by witness X until 28 October 2018, it could scarcely be expected that they would have been in a position to respond to the allegations immediately.  As will be seen, if the amendment application is allowed, the earliest date that the trial could continue would be April 2019.

8. The difficult question that now needs to be resolved is whether, in all the circumstances, Nationwide and Mr Moran should be permitted to amend their defence to raise the new particulars of truth based on the evidence of witness X.  Resolving that issue depends on balancing a number of relevant considerations, many of which pull in different directions.  On the one hand, regard must be had to the lateness of the application and the delay and prejudice that Mr Rush will almost inevitably suffer if the amendment is allowed and the matter is adjourned part-heard to a date no earlier than April 2019.  On the other hand, consideration must be given to the apparent importance of the new allegations and the evidence of witness X to Nationwide and Mr Moran’s defence.

9. Before the competing considerations are considered and weighed in the balance, it is unfortunately necessary to say something more about the nature and course of the proceeding to date.  That is necessary so as to put the amendment application in its proper context.

   MR RUSH’S CASE

10. The nature of Mr Rush’s defamation case is discussed at length in two earlier judgments of the Court: Rush v Nationwide News Pty Ltd [2018] FCA 357 (Rush No 1) and Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 (Rush No 2).  It is unfortunately necessary to refer again to some of the detail contained in those judgments, even though it involves some repetition.  That is because one of the relevant considerations in determining whether the amendment should be allowed is the importance of the proposed amendment, and the evidence relating to it, to Nationwide and Mr Moran’s defence to Mr Rush’s claims.  That involves close consideration of the nature of the matters complained of, the pleaded imputations, and Nationwide and Mr Moran’s defence.

11. Mr Rush’s claim has remained consistent since the day it was filed.  There have been no amendment applications by him.  He claims that he was defamed by Nationwide and Mr Moran in three publications, each of which he contends contained numerous defamatory imputations.

12. The first matter complained of was a billboard or poster which was allegedly displayed outside newsagencies throughout Australia on 30 November 2017.  The billboard advertised a story or article that appeared in the Daily Telegraph that day.  It contained the words:  “World Exclusive Geoffrey Rush in Scandal Claims” and “Theatre Company Confirms ‘Inappropriate Behaviour’”.  Mr Rush claimed that this publication conveyed the following two defamatory meanings or imputations:

    (a)The applicant [Mr Rush] had engaged in scandalously inappropriate behaviour in the theatre.

    (b)The applicant had engaged in inappropriate behaviour of a sexual nature in the theatre.

13. Mr Rush also alleged that, by reason of certain “extrinsic facts”, the billboard conveyed two further defamatory imputations, being:

    (a)The applicant had committed sexual assault in the theatre.

    (b)The applicant had engaged in inappropriate behaviour of a sexual nature in the theatre.

14. The alleged extrinsic facts, in summary, were that, in the weeks preceding the publication, a number of famous actors and movie and television producers and personalities had been portrayed in the media and on social media as sexual predators who had committed acts of sexual assault and/or sexual harassment.  Those actors, producers or personalities included a famous Hollywood film producer, Harvey Weinstein; a famous Hollywood actor, Kevin Spacey; and an Australian television personality, Don Burke.

15. The second matter complained of was a series of articles published in the Telegraph on 30 November 2017.  Those articles appeared on the front page and on pages 4 and 5.  Those articles, or the substance of them, were also published on the Telegraph’s website and tablet app.

16. In short terms, the front page of the edition of the Telegraph published on that day contained a large head and shoulders photograph of Mr Rush made up in the character of King Lear.  That photograph appeared above a large headline “King Leer” and the words “World Exclusive Oscar-winner Rush denies ‘inappropriate behaviour’ during Sydney stage show”.  The article on the first page stated, amongst other things, that Mr Rush had been accused of “inappropriate behaviour” during the Sydney Theatre Company’s recent production of King Lear.  It noted that Mr Rush vigorously denied the claims. 

17. The main article on pages 4 and 5 appeared under the large headline “Star’s Bard Behaviour”.  The main article on pages 4 and 5 itself stated, amongst other things, that:

    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.

18. The article noted that Mr Rush denied the claims and quoted extensively from a letter written by Mr Rush’s lawyer to that effect. 

19. Mr Rush alleged that the second matter complained of conveyed the following defamatory imputations:

    (a)The applicant is a pervert.

    (b)The applicant behaved as a sexual predator while working on the Sydney Theatre Company’s production of King Lear.

    (c)The applicant engaged in inappropriate behaviour of a sexual nature while working on the Sydney Theatre Company’s production of King Lear.

    (d)The applicant, a famous actor, engaged in inappropriate behaviour against another person over several months while working on the Sydney Theatre Company’s production of King Lear.

20. Mr Rush also alleged, in the alternative, that the second matter complained of conveyed those four defamatory imputations by reason of the same extrinsic facts referred to earlier in the context of the billboard.

21. It is perhaps worth emphasising at this stage that the focus of the article or articles in the Telegraph on 30 November 2017 was Mr Rush’s behaviour during the production of King Lear.  No allegations were made about his behaviour on other occasions.  That is perhaps reflected in the fact that three of the four imputations refer specifically to Mr Rush’s behaviour during the production of King Lear.  The other alleged imputation – that Mr Rush was a pervert – involves a more general charge.  So too do the alleged imputations carried by the first matter complained of.  As will be seen, the proposed new particulars, and the evidence of witness X, can, at their very highest, only go towards establishing the substantial truth of the general charges.  They cannot provide the basis of a justification defence to any of the imputations that relate specifically to Mr Rush’s behaviour during King Lear.

22. The third matter complained of was a series of articles published in the Telegraph on 1 December 2017.  Those articles appeared on the front page and on pages 4 and 5.  Those articles, or the substance of them, were also published on the Telegraph’s website and tablet app.

23. The front page of that edition of the Telegraph contained the words “Unscripted Drama: the Oscar Star Scandal” and the large headline “We’re With You” and “Theatre cast back accuser as Rush denies ‘touching’”.  The first few paragraphs of the article stated:

    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.

24. The front page article also stated:

    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” is about “inappropriate behaviour”.

25. Another article on page 4 quoted a “tweet” by another actor, Mr Brandon McClelland, who was said to have worked alongside the woman at the centre of the alleged complaint.  That tweet stated: “It wasn’t a misunderstanding. It wasn’t a joke”.  That tweet was said to have been “reposted” by several other Sydney theatre actors.

26. Mr Rush alleged that the third matter complained of conveyed the following defamatory imputations:

    (a)The applicant had committed sexual assault while working on the Sydney Theatre Company’s production of King Lear.

    (b)The applicant behaved as a sexual predator while working on the Sydney Theatre Company’s production of King Lear.

    (c)The applicant engaged in inappropriate behaviour of a sexual nature while working on the Sydney Theatre Company’s production of King Lear.

    (d)The applicant, an acting legend, had inappropriately touched an actress while working on the Sydney Theatre Company’s production of King Lear.

    (e)The applicant is a pervert.

    (f)The applicant’s conduct in inappropriately touching an actress during King Lear was so serious that the Sydney Theatre Company would never work with him again.

    (g)The applicant had falsely denied that the Sydney Theatre Company had told him the identity of the person who had made a complaint against him.

27. Mr Rush also alleged, in the alternative, that the third publication conveyed the same six defamatory imputations referred to in paragraphs (a) to (f) above, by reason of the extrinsic facts referred to earlier.

1. As can be seen, five of the imputations alleged to be carried by the third matter complained of relate to Mr Rush’s behaviour during King Lear.  It is not suggested that the proposed new particulars can provide any defence to those imputations.  One of the other imputations is again the general charge that Mr Rush is a pervert.  The other imputation, that Mr Rush falsely denied that the Sydney Theatre Company had told him the identity of the person who made the complaint against him, is no longer the subject of any justification defence by Nationwide and Mr Moran.  It follows that the proposed new particulars, and the evidence of witness X, are not relevant to it.

   NATIONWIDE AND MR MORAN’S DEFENCE

2. Nationwide and Mr Moran’s defence to Mr Rush’s claim has been, to say the very least, a moveable feast.  Even putting the present amendment application to one side, the settling of Nationwide and Mr Moran’s final defence to the action has been fraught with difficulties.  That has inevitably already led to delays and prejudice to Mr Rush.

3. Both Nationwide and Mr Moran denied that the relevant publications, in their natural and ordinary meanings or otherwise, were reasonably capable of conveying, or in fact conveyed, any of the imputations that Mr Rush alleged that they conveyed.  They also denied that Mr Rush had been brought into hatred, ridicule, or contempt, or had been gravely injured in his character or reputation, or had suffered hurt or embarrassment as a result of the publications.  It is unnecessary to say anything further concerning those aspects of the defence.  Suffice it to say that the proposed new particulars, and the evidence of witness X, can have no bearing on the success or otherwise of them.

4. Nationwide and Mr Moran also relied on the defence of justification under s 25 of the Defamation Act. In the first two iterations of their defence, they only contended that four of the alleged imputations were substantially true. The four imputations that they claimed to be substantially true were:

   (a)The applicant had engaged in scandalously inappropriate behaviour in the theatre.

   (b)The applicant, a famous actor, engaged in inappropriate behaviour against another person over several months while working on the Sydney Theatre Company’s production of King Lear.

   (c)The applicant, an acting legend, had inappropriately touched an actress while working on the Sydney Theatre Company’s production of King Lear.

   (d)The applicant’s conduct in inappropriately touching an actress during King Lear was so serious that the Sydney Theatre Company would never work with him again.

5. Two things should be noted: first, three of the imputations that were initially claimed to be substantially true related specifically to Mr Rush’s conduct during the production of King Lear; and second, it was not initially contended by Nationwide and Mr Moran that the general imputation that Mr Rush was a pervert was substantially true.  That has now changed.

6. The particulars of truth included in Nationwide and Mr Moran’s initial defence are also worthy of note.  They related entirely to Mr Rush’s conduct during or immediately after the production of King Lear.  Perhaps more significantly, while they were, for the most part, expressed in very general, vague, and at times ambiguous, terms, they were also in part materially inconsistent with the particulars of truth now relied on by Nationwide and Mr Moran.  They also did not include many of the allegations now relied on. 

7. The main allegation was that, at a performance of King Lear on or about 5 January 2016, Mr Rush touched the actress, now known to be Ms Norvill, in a manner that made her feel uncomfortable.  That touch was alleged to have occurred during the final scene in which Mr Rush, playing King Lear, walked onto the stage carrying Cordelia, played by Ms Norvill.  The suggestion appeared to be that the alleged touch occurred while Mr Rush was carrying Ms Norvill, not at the time that Ms Norvill was lying on the stage.  It was also claimed that, following the performance, Ms Norvill said “stop doing it”.  The particulars also included an allegation that, at an after party on 9 January 2016, Mr Rush followed Ms Norvill into the female bathrooms in the foyer of the theatre and Ms Norvill told him to “fuck off”.  That particular is no longer pursued.   

8. Needless to say, Nationwide and Mr Moran’s justification defence, in its initial iteration, was struck out on the application of Mr Rush on the basis that the particulars of truth were deficient and defective: Rush No 1 at [55]-[108].

9. It should also be noted that Nationwide and Mr Moran also initially relied on the defence of qualified privilege pursuant to s 30 of the Defamation Act. It is unnecessary to consider the details of that defence, save for making two points.

10. First, as will be seen, the initial pursuit of the defence of qualified privilege led to further delay.  Some of the particulars of the defence relied on by Nationwide and Mr Moran were struck out.  That decision was the subject of an unsuccessful application by Nationwide and Mr Moran for leave to appeal: Nationwide News Pty Ltd v Rush [2018] FCAFC 70 (Nationwide v Rush).  Nationwide and Mr Moran then sought to reintroduce the particulars on another basis.  That application, along with the application for leave to file a cross-claim against the Sydney Theatre Company, was also unsuccessful: Rush No 2 at [31]-[73].

11. Second, for a significant period of time, including at the time that the matter was set down for trial, the defence of qualified privilege was the only substantive defence relied on by Nationwide and Mr Moran.  Ultimately, however, they withdrew that defence.  The circumstances in which that defence was withdrawn are considered later.

12. Nationwide and Mr Moran’s substantive defence to Mr Rush’s claim now hinges entirely on a defence of justification.  The circumstances in which Nationwide and Mr Moran were permitted to re-introduce and re-plead the defence are considered later in the context of the delay and prejudice that has been occasioned by Nationwide and Mr Moran’s amendments to their defence.  It is, in the meantime, necessary to outline the defence of justification as presently pleaded.  That is because, as has already been noted, the proposed amendment to the defence would, if permitted, significantly supplement the particulars of truth relating to at least some of the alleged imputations.

13. The defence of justification, as currently pleaded by Nationwide and Mr Moran, is entirely based, as it was initially, on allegations concerning Mr Rush’s conduct and behaviour during the production of King Lear, including the rehearsals.  The allegations, as particularised, relate entirely to Mr Rush’s behaviour towards Ms Norvill.  Nationwide and Mr Moran contend that that the allegations, if made out, would prove the substantial truth of all but one of the imputations pleaded by Mr Rush.  The one imputation that is not the subject of the justification defence is the imputation that Mr Rush had falsely denied that the Sydney Theatre Company had told him the identity of the person who had made a complaint against him.

14. The particulars of truth that have been pleaded by Nationwide and Mr Moran involve, broadly speaking, seven or perhaps eight key allegations or incidents.

15. The first key allegation is that, on one occasion when Mr Rush and Ms Norvill were rehearsing the final scene of the play, in which Cordelia is dead and King Lear is grieving over her dead body, Ms Norvill saw Mr Rush “hovering his hands over her torso and pretending to caress or stroke her upper torso” and then make “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”: second further amended defence (SFAD) [15]. This incident was said to have occurred in front of other members of the cast and perhaps crew.

16. The second key allegation is that, during the rehearsal period, Mr Rush “regularly made comments or jokes about [Ms Norvill] or her body which contained sexual innuendo”: SFAD [16]. That conduct was said to have occurred in the presence of members of the cast and crew.

17. The third allegation again relates to conduct during the rehearsal period. It is alleged that Mr Rush would “regularly (every few days) make lewd gestures in [Ms Norvill’s] direction” and that “[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”: SFAD [17].

18. The fourth allegation is that, during an interview with a journalist, Mr Rush described having a “stage-door Johnny crush” on Ms Norvill: SFAD [18].

19. The fifth allegation is perhaps the most serious allegation. It is alleged that, during a preview performance of the play, Mr Rush departed from the way that the last scene had previously been performed in that he “did not touch [Ms Norvill’s] hand and face as had been repeatedly rehearsed but rather [he] moved his hand so that it traced down [Ms Norvill’s] torso and across the side of her right breast”: SFAD [19]. The following day, the director of the play, Mr Neil Armfield, gave Mr Rush an oral “note”, apparently in the presence of other cast members, in which he said that Mr Rush should make his performance in the last scene more “paternal” as it was becoming “creepy and unclear”. Mr Armfield also directed Mr Rush not to stroke Ms Norvill’s body: SFAD [20].

20. The sixth allegation concerns an incident that was said to have occurred during a performance which occurred in the period between 14 and 26 December 2015.  The final scene of the play involved Mr Rush carrying Ms Norvill onto the stage in his arms.  Ms Norvill stood on a chair in the prompt side wings so as to facilitate Mr Rush lifting her into his arms before carrying her onto the stage.  It is alleged that, in a performance during the period referred to earlier, before lifting Ms Norvill from the chair, Mr Rush placed his hand on Ms Norvill’s lower back above her shirt.  He then moved his hand under her shirt and along the waistline of Ms Norvill’s jeans, brushing across the skin of her lower back.  The movement is alleged to have been light in pressure, slow, and deliberate, and to have lasted 20 to 30 seconds: SFAD [21]-[22].

21. The seventh allegation again concerns an incident that occurred immediately prior to Mr Rush lifting Ms Norvill from the chair before carrying her on stage for the final scene. The incident is said to have occurred during a performance in the period 4 to 9 January 2016. On this occasion, Mr Rush is alleged to have started to touch Ms Norvill’s lower back on top of her shirt. He then gently rubbed his fingers over Ms Norvill’s lower back from left to right: SFAD [23].

22. The eighth allegation is that, 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”: SFAD [24].

23. Nationwide and Moran claim that Mr Rush’s actions as described were intentional and constituted scandalously inappropriate conduct in a workplace: SFAD [25]. They contend that Ms Norvill made a complaint to the Sydney Theatre Company in April 2016 and that, following the complaint, the Sydney Theatre Company decided that it would never work with Mr Rush again: SFAD [27].

24. As has already been noted, the main change that would be made to Nationwide and Mr Moran’s defence by the proposed amendment involves the addition of new particulars of facts and circumstances that Nationwide and Mr Moran contend would, if established, prove the substantial truth of some, but not all, of the pleaded imputations.  The general nature of those new particulars will be outlined shortly.  The important point to emphasise at this stage is that, unlike the existing particulars and allegations, the new particulars do not involve Mr Rush’s behaviour during the production of King Lear, do not involve Ms Norvill, and do not involve the Sydney Theatre Company.  They involve incidents or events that are alleged to have occurred many years before 2016. 

25. Before addressing the proposed amendments in some little more detail, it is necessary to say something more about the chronology of the proceedings to date.  That is again necessary to put the amendment application in its proper context.

    CHRONOLOGY OF THE PROCEEDINGS TO DATE

26. Mr Rush filed his originating application and statement of claim almost a year ago, on 8 December 2017.  The matter was listed for a first case management hearing on 8 February 2018.

27. Nationwide and Mr Moran filed a defence on 1 February 2018.  The next day, Mr Rush filed an interlocutory application which sought, amongst other things, orders striking out parts of the defence, including the justification defence and parts of the defence of qualified privilege.  The interlocutory application was made returnable at the first case management hearing on 8 February 2018.

28. At the first case management hearing on 8 February 2018, senior counsel who then appeared for Mr Rush moved on the interlocutory application.  Counsel who appeared for Nationwide and Mr Moran opposed the interlocutory application being heard that day.  Counsel for Nationwide and Mr Moran also sought a direction in relation to the filing of an amended defence.  Ultimately, Nationwide and Mr Moran prevailed: Mr Rush’s interlocutory application was listed for hearing on 19 February 2018 and Nationwide and Mr Moran were directed to serve an amended defence, and provide a copy to the Court, on or before 15 February 2018.  The important point to emphasise about the first case management hearing is that Mr Rush, through his counsel, emphasised his wish to have the earliest possible hearing date.  It was on that basis that he sought to have the interlocutory application resolved at the earliest opportunity.

29. Nationwide and Mr Moran provided an amended defence on 14 February 2018 as directed and the interlocutory application was heard on 19 February 2018.

30. On 20 March 2018, judgment was delivered in relation to Mr Rush’s interlocutory application: Rush No 1.  Amongst other things, orders were made striking out Nationwide and Mr Moran’s justification defence and parts of their qualified privilege defence.  A subpoena that had been issued to the Sydney Theatre Company on the application of Nationwide and Mr Moran was also set aside. 

31. When judgment was handed down, counsel for Mr Rush immediately provided short minutes of order for the future progress of the matter.  Counsel emphasised that Mr Rush sought the earliest available hearing date.  It was indicated that the matter could be heard in August 2018.  Counsel for Nationwide and Mr Moran opposed the timetable that had been proposed by Mr Rush and opposed the making of an order fixing the matter for trial.  The main reason for that opposition was that Nationwide and Mr Moran wanted time to consider applying for leave to appeal from the interlocutory judgment.  Nationwide and Mr Moran again prevailed.  The matter was not listed for trial, but was instead listed for a further case management hearing on 27 March 2018.

32. At the further case management hearing on 27 March 2018, senior counsel for Nationwide and Mr Moran advised that an application for leave to appeal would be filed.  The consequence of that was said to be that it “would be pointless … to proceed to embark on a course of interlocutory procedures like discovery and statements and interrogatories” until that leave application was heard and disposed of.  Senior counsel for Nationwide and Mr Moran also sought an order concerning the filing of a cross claim against the Sydney Theatre Company.  Counsel for Mr Rush opposed the course proposed by Nationwide and Mr Moran and, once again, emphasised that Mr Rush was entitled to the earliest available date so as to be able to vindicate his reputation.  Orders were eventually made which required Nationwide and Mr Moran to file an application for leave to file a further amended defence and cross-claim and an application for leave to appeal by 3 April 2018.   The matter was listed for a further case management hearing on 9 April 2018.

33. At the case management hearing on 9 April 2018, counsel for Mr Rush advised the Court that Mr Rush did not oppose the filing of the further amended defence which had been served by Nationwide and Mr Moran, though he would oppose the filing of a cross-claim against the Sydney Theatre Company.  Senior counsel then appearing for Nationwide and Mr Moran indicated, however, that they were still considering making some further changes to the proposed further amended defence concerning mitigation of damage.  The application involving the filing of a cross-claim against the Sydney Theatre Company was set down for hearing on 13 April 2018.  That hearing date was subsequently changed to 16 April 2018. 

34. As had occurred at every previous case management hearing, counsel for Mr Rush pressed for an early hearing date.  This time, however, an affidavit was filed in support of the application for an early hearing date.  That affidavit included evidence that Mr Rush was suffering ongoing hurt and damage as a result of the impugned publications and ongoing reports of the proceedings.  The deponent of the affidavit said, on the basis of information provided by Mr Rush, that Mr Rush was virtually housebound, that he suffered from lack of sleep and anxiety, and that he had retreated from and lacked the necessary motivation to conduct normal activities in the theatre and film industries.   The affidavit also referred to and annexed numerous reports of the proceedings by newspapers in Australia and overseas.

35. On 11 April 2018, Nationwide and Mr Moran served a second proposed further amended defence which differed in material respects from the version served earlier.  Those differences had not been foreshadowed at the earlier case management hearing.  Mr Rush advised that he opposed the filing of that version of the further amended defence.

36. The interlocutory application filed by Nationwide and Mr Moran for orders relating to the second proposed further amended defence and proposed cross-claim against the Sydney Theatre Company was heard on 16 April 2018.  Judgment dismissing the interlocutory application was delivered on 20 April 2018: Rush No 2.

37. As had occurred immediately after the handing down of judgment in Rush No 1, upon the handing down of judgment in Rush No 2, counsel for Mr Rush immediately pressed for the matter to be set down for hearing on the earliest available date.  While senior counsel who appeared for Nationwide and Mr Moran on that day initially expressed some faint opposition to the course proposed by Mr Rush, ultimately orders were made fixing the matter for trial to commence on 3 September 2018.  Orders were also made in relation to the service of outlines of evidence and various other interlocutory steps.          

38. Nationwide and Mr Moran’s application for leave to appeal from Rush No 1 was heard by the Full Court on 27 April 2018.  It was dismissed with costs: Nationwide v Rush.

39. The important point to emphasise at this point in the chronology is that, at every stage of the proceeding, Mr Rush, through his counsel, had pressed for an early hearing of his claim.  Nationwide and Mr Moran, on the other hand, had frustrated and impeded Mr Rush’s attempt to have his claim heard.  They filed a defence which raised defences which were not properly particularised.  They not only unsuccessfully sought leave to appeal from the judgment striking out parts of their defence of qualified privilege, but they also unsuccessfully sought to reintroduce the struck-out paragraphs on a different basis.  In Rush v Nationwide News Pty Ltd (No 4) [2018] FCA 1558 (Rush No 4), I described Nationwide and Mr Moran’s conduct of the litigation up to this point as being unsatisfactory.  If anything, that was an understatement.   

1. Eventually, however, Mr Rush was able to secure a trial date in early September 2018.

2. On 31 July 2018, that all changed.   The sequence of events that commenced on 31 July 2018 is described in detail in Rush No. 4.  In summary, Nationwide and Mr Moran filed yet another application to amend their defence.  The reason for the amendment application was that Ms Norvill, who had until this point declined to co-operate with Nationwide and Mr Moran’s defence, had agreed to give evidence.  The amended defence contained almost entirely new particulars of truth.  Those particulars, which were described earlier, were based on the anticipated evidence of Ms Norvill.  Mr Rush initially opposed the amendment application, but ultimately withdrew that opposition on the condition that the commencement of the trial was able to be deferred to 22 October 2018, a date that was suitable to the parties and the Court. 

3. Ultimately, orders were made on 9 August 2018 which had the effect of vacating the existing trial date, fixing the trial for hearing to commence on 22 October 2018, and providing for all further interlocutory steps necessary to ensure that the trial could commence on 22 October 2018.  As was explained in Rush No. 4, the orders that were made on 9 August 2018 included an order that Nationwide and Mr Moran could not further amend their defence without leave of the Court and that the parties could not rely on any evidence not served in accordance with the timetable.  In the case of Nationwide and Mr Moran, that meant that they were not permitted to rely on any evidence served after 20 August 2018 without leave.

4. It should also be noted, in this context, that Mr Rush’s counsel said the following in relation to Mr Rush’s reasons for withdrawing his opposition to the amendment application and the delay of the trial:

   Yes, and I should say the only reason we’re consenting to this adjournment, even though the delay is intolerable to Mr Rush, is because, frankly, it’s in his interest for these allegations to be dealt with as a matter of finality, in full. He’s ready to come to court, and he wants them to be determined. And that’s the reason why the application is not opposed.

5. The important point to emphasise is that, even putting the unsatisfactory conduct of the proceedings prior to 31 July 2018 to one side, the trial of Mr Rush’s application has already been adjourned once to accommodate a significant amendment of Nationwide and Mr Moran’s defence.  If the present amendment application was allowed, it would be the fourth amendment of Nationwide and Mr Moran’s defence.           

   THE PROPOSED AMENDMENT AND THE EXPLANATION FOR IT

6. Nationwide and Mr Moran’s explanation for the current amendment application is contained in an affidavit sworn by Mr Marlia Saunders, a solicitor employed by Nationwide.  That affidavit also annexes the proposed third further amended defence and a document which is said to be a statement of witness X.  For reasons that will become apparent, witness X’s identity will not be exposed in these reasons.  Nor will the detail of witness X’s statement or the detail of the new particulars contained in the proposed third further amended defence.  It is sufficient to note the following.

7. Witness X is someone who worked with or alongside Mr Rush some years ago, well before the production of King Lear which has, to date, been the focus of these proceedings.  Ms Saunders’ evidence was that, in or about December 2017, a journalist employed by Nationwide attempted to contact witness X to see if she would speak about her experience working with or alongside Mr Rush.  That attempt was unsuccessful.  A further attempt was made in writing in February 2018.  A representative of witness X advised that she did not wish to speak with Nationwide and Mr Moran’s legal representatives and did not want to be contacted again.  Despite the request that witness X not be contacted again, further attempts were made to speak with witness X in July, September and October 2018.  Those further attempts met with either no response, or a negative response.

8. On 26 October 2018, however, a solicitor acting for witness X contacted Nationwide and Mr Moran’s lawyers and indicated that witness X may be prepared to give evidence at the hearing.  Exactly how that came about is unclear.  It can be noted, however, that the solicitor who acted for witness X also acted for Ms Norvill.  It was that solicitor who first contacted Nationwide and Mr Moran’s lawyers about Ms Norvill’s willingness to give evidence.  It was that contact which eventually gave rise to the 31 July 2018 amendment application.

9. As already indicated, Ms Saunders’ affidavit annexes a document said to be a statement of witness X.  It is unsigned and bears the date 28 October 2018.  It is unclear from Ms Saunders’ affidavit who prepared that statement and in what circumstances it was prepared.  While it bears the date 28 October 2018, it is unclear when it was first prepared or finalised, or exactly when it was provided to Nationwide and Mr Moran’s lawyers. 

10. The statement records, amongst other things, that after reading numerous media reports about evidence given in the trial, witness X retained a solicitor to provide her with legal advice about the dispute between Nationwide and Mr Moran, and Mr Rush.  It is stated, in effect, that for various reasons that are explained in the statement, witness X would be extremely reluctant to attend Court to give evidence in person prior to the end of February 2019.  The statement includes a request that witness X be permitted to give evidence by video link from overseas, though it is unclear exactly when that could be done, or whether it could be done before the end of February 2019.

11. As for the expected evidence of witness X, as recorded in the statement, the statement refers to a number of incidents that occurred during and after the period of time that witness X worked with or alongside Mr Rush.  I have closely considered the contents of the statement of witness X in its entirety. As has already been indicated, however, it is not intended to delve into the detail of those alleged incidents in these reasons.  It is sufficient to note that the incidents are all said to have occurred during the season of a particular theatre production, though some of the incidents occurred in social settings outside the theatre and one occurred in a professional setting outside the theatre.  Some of the incidents involve electronic messages.  The incidents that occurred in the theatre setting did not occur during any performance or rehearsal.  The incidents could broadly be said to be sexual in nature.

12. The proposed third further amended defence distils those incidents into 8 particulars (proposed paragraphs 27D to 27L; paragraphs 27A to 27C contain background to those particulars).  Those particulars are then said to support the substantial truth of the following imputations:

    (a)The applicant had engaged in scandalously inappropriate behaviour in the theatre (see paragraph 28.1 of the proposed third further amended defence).

    (b)The applicant had behaved in inappropriate behaviour of a sexual nature in the theatre (see paragraph 28.2 of the proposed third further amended defence).

    (c)The applicant is a pervert (see paragraph 28.4 of the proposed third further amended defence).

13. These are said to be the “general charges” that do not involve Mr Rush’s behaviour or conduct during the production of King Lear.  As has already been noted, there is no suggestion, and nor could there be, that the particulars based on the expected evidence of witness X could support the substantial truth of any of the other pleaded imputations.

14. In all the circumstances, and having regard to the contents of the statement of witness X, it is appropriate to approach this amendment application on the basis that the evidence of witness X, as recorded in the statement, would, if fully accepted, be capable of supporting the substantial truth of the general imputations that Mr Rush had engaged in scandalously inappropriate behaviour in the theatre, and had engaged in inappropriate behaviour of a sexual nature in the theatre.  It is perhaps questionable whether the evidence, if accepted, would necessarily establish the general imputation that Mr Rush is a pervert.  The word “pervert” is heavily value-laden.  Much would depend on the precise context and circumstances in which the incidents occurred, if indeed they are found to have occurred.  Nevertheless, for the purposes of considering this application, it should be accepted that the evidence is at least potentially capable of supporting the substantial truth of that imputation.  The application should also be approached on the basis that, if the evidence of witness X did establish the substantial truth of any of those three imputations, that would be relevant to the mitigation of damages should Mr Rush’s claim based on the other imputations be made out (see paragraph 29 of the proposed third further amended defence).              

    RELEVANT PRINCIPLES

15. The relevant principles to apply when considering an amendment application such as this are well settled.  They were outlined in Rush No 2 at [25] to [30]. It is unnecessary to rehearse what was said about the principles in that judgment. Suffice it to say that it is those principles that are to apply in resolving the present dispute and dilemma. Both parties accepted that that was so.

16. The difficulty is in the application of those principles to the unique and somewhat extraordinary circumstances of this case.

    EVIDENCE RELIED IN SUPPORT OF AND IN OPPOSITION TO THE APPLICATION

17. Nationwide and Mr Moran relied primarily on the affidavit evidence of Ms Saunders.  That evidence has already been referred to.  Ms Saunders swore another affidavit, though it contained evidence that related primarily to Mr Rush’s application for suppression and non-publication orders.

18. Mr Rush relied on affidavit evidence from his solicitor Mr Nicholas Pullen. Mr Pullen first became aware, in a very general sense, of witness X during a communication he had with witness X’s solicitor late in the evening on 26 October 2018. That communication also involved a Registrar of this Court and was said to have occurred in the context of an ongoing mediation. That is despite the fact that neither Nationwide or Mr Moran, nor their solicitors or counsel, were a party to the discussions. In any event, Nationwide and Mr Moran objected to the admissibility of the evidence of the communication on the basis that it occurred in the context of the mediation and was therefore excluded by either or both of s 131 of the Evidence Act 1995 (Cth) or s 53B of the Federal Court Act. That issue is referred to later in the context of Mr Rush’s application for suppression and non-publication orders. The evidence of the communication on the evening of 26 October 2018 ultimately has no relevance to, or bearing on, the amendment application.

19. Mr Pullen’s evidence was that he received an email at 6.28 pm on Sunday, 28 October 2018, which attached Nationwide and Mr Moran’s interlocutory application and the supporting affidavit of Ms Saunders.  Mr Pullen contacted Mr Rush by telephone the following day.  He noted that Mr Rush was, perhaps not surprisingly, “shocked and upset”.  That was the first time that Mr Rush and his lawyers had seen the statement of witness X. 

20. Over the weekend of 27 and 28 October 2018, Mr Rush’s legal team were busy preparing to call evidence from Ms Judith Davis and Ms Robyn Nevin and preparing to cross-examine Nationwide and Mr Moran’s witnesses, in particular Ms Norvill.  As was noted earlier, Ms Davis and Ms Nevin were called to give evidence on Monday, 29 October 2018.  A joint application was made to adjourn the proceedings for a short period after the conclusion of the evidence of Ms Nevin.  It would appear that there were discussions between the parties and witness X’s solicitor during that time.  Nationwide and Mr Moran moved on the interlocutory application on the morning of 30 October 2018, though the hearing of the application was deferred as Mr Rush’s legal team were not prepared to deal with it.  Ms Norvill was then called to give evidence.

21. Mr Pullen’s evidence was that Mr Rush and his legal team had not, at the time he swore his affidavit on 30 October 2018, had an opportunity to make proper enquiries in relation to the allegations made in witness X’s statement.  If Mr Rush was compelled to meet and respond to that statement and the allegations contained therein, he would be required to make enquiries of certain individuals referred to in the statement and to issue a subpoena to produce documents.  Mr Pullen noted in that regard that the statement of witness X annexed certain documents, including selected or “selective” diary extracts and incomplete or one-sided communications between witness X and Mr Rush.

22. Mr Pullen’s evidence, which was unchallenged, was that it would not be possible for Mr Rush and his legal team to pursue those enquiries prior to the conclusion of the time allocated for the hearing of the matter.  The last day allocated for the hearing of the matter was and is 8 November 2018.   Mr Pullen noted that Mr Rush would oppose witness X giving evidence by video link.

23. Mr Pullen referred to and annexed media articles published by Nationwide during the hearing.

24. Mr Pullen also gave the following unchallenged evidence concerning his observations of Mr Rush and his wife during the course of these proceedings:

    My observation of the Applicant and his wife, during the course of these proceedings since December 2017, but particularly since the commencement of the hearing, is that they have been under tremendous stress.

    My observation was that they were both particularly anxious during the days before they gave evidence - given the amount of attention the hearing has been receiving in the media in Australia and overseas, and given their evidence was to be highly emotional and personal. My observation was that the process of giving evidence took a great emotional and physical toll on them.

25. It should be noted that, by this time, numerous witnesses had been called in Mr Rush’s case and had given effectively unchallenged evidence concerning the profound effect that the impugned publications had had on Mr Rush’s health and wellbeing.      

    SHOULD LEAVE TO AMEND BE GRANTED?

26. In very general terms, the main factors that must be considered and weighed up in the particular circumstances of this case are: first, the nature of the proposed amendment and its importance to Nationwide and Mr Moran’s case; second, the extent of any delay in applying for leave to amend and the adequacy of Nationwide and Mr Moran’s explanation for it; third, the prejudice to Mr Rush that will be caused by the amendment, including any prejudice that may be inferred or presumed in the circumstances; fourth, whether any prejudice to Mr Rush can be adequately remedied by a costs order or otherwise; and fifth, modern case management considerations, including the potential detriment to other litigants and the Court and the potential loss in public confidence in the legal system.

    The nature and importance of the proposed amendments

27. The nature of the proposed amendments has already been discussed.  It may be accepted that the amendments are of considerable potential importance to Nationwide and Mr Moran’s case. 

28. In Maisel v Financial Times Ltd (No 1) (1915) 112 LT 953 at 955; 84 LJKB 2145 at 2147, the House of Lords held that, where an imputation alleging a general charge was conveyed, the defendant was entitled to give particulars demonstrating why that was true by reference to a wide variety of matters and was not confined to the facts in the article: see also Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299 at [314]; Anderson v Mirror Newspapers Ltd & Anor (No 2) (1986) 5 NSWLR 735 at 737A-C; Allen v John Fairfax & Sons Ltd (unreported, Supreme Court of New South Wales, Hunt J, 2 December 1988) at 9; Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645 at [38]-[41].

29. It may readily be accepted that the amendments incorporating the new particulars of truth and the expected evidence of witness X are, if accepted, capable of proving the substantial truth of three of the “general charges” or imputations pleaded by Mr Rush and referred to earlier. 

30. If it does turn out to be the case that those general charges are proved to be substantially true, it does not follow that Nationwide and Mr Moran’s justification defence will necessarily succeed on the strength of the evidence of witness X alone.  That is because, to succeed in a defence of truth, Nationwide and Mr Moran must prove the truth of all of the carried defamatory imputations in relation to the relevant matters complained of.  Proof of the truth of less than all of the carried imputations does not bear upon the question of liability.

31. It may be accepted, however, that if the three general imputations are proved to be substantially true, but Nationwide and Mr Moran are found liable in respect of the other pleaded imputations, the substantial truth of the three general imputations is likely to mitigate Mr Rush’s damages, potentially significantly.

32. The potential importance of the proposed amendments in Nationwide and Mr Moran’s case is a consideration which weighs significantly towards the grant of leave to amend.

33. I should also note in this context that, in the course of oral submissions, senior counsel for Nationwide and Mr Moran floated the suggestion that the evidence of witness X might also constitute tendency evidence that might support Ms Norvill’s evidence. That argument was not developed. In those circumstances it suffices to say that the question whether the evidence of witness X might constitute some form of tendency evidence raises difficult and complex issues. It is by no means certain that the evidence would satisfy the requirements in the Evidence Act in relation to tendency evidence.

    The extent of the delay and the explanation for it

34. There are two aspects to this consideration.  The first is the lateness of the application.  The second is the explanation for the lateness of the application and any relevant delay.

35. The application to amend has unquestionably been made at an extremely late stage of the trial.  As has already been explained in some detail, Nationwide and Mr Moran moved on their application to amend at a time when the major part of Mr Rush’s case had been concluded.  Mr Rush had given evidence and been cross-examined over some three days.  All of the witnesses who were to be called by Mr Rush to rebut Nationwide and Mr Moran’s justification defence had also already been called.  All that remained of Mr Rush’s case was the calling of some general reputation witnesses and some expert evidence relating to Mr Rush’s economic loss claim.  

36. The lateness of the application to amend is a very weighty consideration.  It is considered in more detail in the context of the prejudice to Mr Rush arising from the proposed amendment.  It suffices to note at this stage that the lateness of the application weighs heavily against the grant of leave to amend in the particular circumstances of this case.

37. There is, however, an explanation for the lateness of the application.  As Ms Saunders’ evidence demonstrates, attempts had been made to contact witness X from about December 2017.  Those attempts were unsuccessful.  Further attempts were made during 2018.  They were equally unsuccessful.  It would appear that witness X only decided to engage with Nationwide and Mr Moran after she had seen some media reports of evidence during the trial and then retained a solicitor.  That solicitor happened to be Ms Norvill’s solicitor, though it could scarcely be accepted that that was a pure coincidence. 

38. Once witness X, through her solicitor, made contact with Nationwide and Mr Moran’s legal team, they moved very swiftly to make the amendment application.  There was no delay in that respect.

1. In Doe v Dowling [2017] NSWSC 1793, McCallum J considered whether non-publication and pseudonym orders should be made in the context of a case where a defendant irrationally maintained a right to publish an indefensible defamation. Her Honour ultimately accepted the submission that the case was in the category of cases where non-publication orders were necessary to prevent the very purpose of the proceeding being undermined or rendered futile. Her Honour concluded (at [69]) that “[w]ithout the protection of such orders, the whole object of the cause of action they invoke would be defeated by the fact of their invoking it”.

2. The circumstances of this case are undoubtedly different to the circumstances in Versace and Doe v Dowling. Indeed the circumstances of this case are unique and somewhat exceptional. The prejudice that would be suffered by Mr Rush should the media, or others, be permitted to publish the precise details of the proposed amendment and the identity of witness X under the protection of s 29 of the Defamation Act transcends mere embarrassment. Mr Rush’s reputation would undoubtedly be further damaged by media reports of allegations that will never be considered, tested, or ruled upon in this proceeding. He would effectively have no recourse in respect of those reports. That would undermine and frustrate the very purpose for which he brought these proceedings.

3. The circumstances are different to those considered in Rush No 1.  There, the relevant allegations were contained in a defence that had been filed and, but for suppression or non-publication orders, would otherwise have been open for public inspection.  It was also made clear in the judgment in Rush No 1 that the allegations in the defence had been struck out on the basis that the particulars were manifestly defective and deficient.  In that respect, they had effectively been tested and dealt with.  And as already noted, the nature and potential impact of the allegations made by witness X transcend mere embarrassment.

4. The circumstances of this case are also substantially different from cases where untested allegations in a pleading are publicised in circumstances where they will ultimately be tested and ruled upon in the proceeding.  In A v Commissioner of Taxation [2016] FCA 1307, Perram J made non-publication orders in respect of allegations that would not be tested in the proceedings. While the circumstances of that case were undoubtedly different, they were, in some respects, analogous to the circumstances of this case. His Honour concluded (at [13]):

   But in a case such as the present this will not occur. If limits are not placed on the extent to which this proceeding may be publicised, then the allegations against the applicant will be placed in the public domain. But this will occur in circumstances where the applicant will have had no opportunity to respond, because the correctness of the Commissioner’s views will not be a matter calling for resolution in the present proceeding. Furthermore, the revelation of the dispute is likely to cause commercial damage to the group.

5. On the other side of the coin, I do not consider that the principle of open justice will in any way be undermined by the making of carefully crafted non-publication orders in this matter.  The amendment application was able to be heard in open court without referring to the identity of witness X or the precise nature of her evidence and allegations.  These reasons also fully explain the reason why the amendment application, and the application for leave to adduce evidence from witness X, have been refused, again without exposing the identity of witness X or the detail of her allegations.  Justice has been done and seen to be done in open court and there is no risk to public confidence in the administration of justice.  The media are able to report on the outcome of the applications and scrutinise and even criticise them if they choose to do so.

6. Mr Rush also contended that suppression or non-publication orders were necessary on another basis.  He contended that the circumstances in which the amendment application, based on allegations made by witness X, came to be made amounted to the bringing of improper pressure to bear on Mr Rush, and potentially constituted a contempt of court or abuse of process.  It was submitted that bringing improper pressure to bear on a litigant may provide a basis for suppression orders so as to prevent prejudice to the litigant and to further the more general interests of justice.  Mr Rush relied, in that regard, on the judgment of Brereton J in W v M [2009] NSWSC 1084 at [20]-[22].

7. As was noted earlier, Mr Rush’s case concerning improper pressure depends, to a large extent, on the nature and content of communications that occurred during a discussion on the evening of Friday, 26 October 2018. The parties to that discussion included Mr Rush’s solicitor and counsel, witness X’s solicitor and a Registrar of the Court. It was common ground that the Registrar had been involved in the ongoing mediation of these proceedings. Mr Rush’s solicitor made a file note of the discussions. Nationwide and Mr Moran objected to the tender of that file note on the basis that it was covered by the privilege in s 131 of the Evidence Act and was in any event excluded by s 53B of the Federal Court Act.

8. Mr Rush submitted that the file note was admissible on a number of bases. First, he submitted that, while the discussion initially was said to have been part of the mediation, it is clear from the communications that occurred that they did not relate to the settlement of this proceeding and were not, therefore, part of the mediation. It was also pointed out that, if this was a mediation, it was a very strange mediation given that Nationwide and Mr Moran were not represented during the discussions. Indeed, there was no evidence that they or their lawyers even knew that the discussion was occurring. It was submitted, therefore, that s 53B of the Federal Court Act did not apply. Second, it was submitted that the note was not excluded by s 131 because it fell within the exception in s 131(2)(k) (“… the communication was made … in furtherance of a deliberate abuse of a power”). Third, it was submitted that s 11 of the Evidence Act provides, in any event, that the power of a court to control the conduct of a proceeding, in particular, the power of a court with respect to abuse of process, is not affected by the Evidence Act unless that Act provides otherwise expressly or by necessary intendment.

9. I admitted the file note on the voir dire in accordance with the procedure referred to in In the Matter of Petrolink Pty Ltd; Smith v Boné [2014] FCA 1024 at [31]-[33].

10. An allegation of abuse of power, or abuse of process, or contempt of court is, self-evidently, a very serious allegation.  It is also important to emphasise that, so far as I understand it, Mr Rush’s case was that it was witness X, through her solicitor, who was bringing improper pressure to bear on him.  It was therefore witness X, through her solicitor, who was alleged to have committed an abuse of power, or been involved in an abuse of process or contempt of court.  It was not suggested that Nationwide or Mr Moran, or their solicitors or counsel, were involved in any such abuse of power or process.  Perhaps even more significantly, it was not suggested that the Registrar acted improperly in any way.  Any suggestion of that was expressly disavowed by senior counsel for Mr Rush.

11. The discussion which occurred on the evening of 26 October 2018 was, in some respects, rather unusual.  While the presence of the Registrar, and the statement made by the Registrar at the commencement of the discussion, indicated that it was part of the mediation process, Nationwide and Mr Moran were not represented during the discussions.  The discussions did not appear to directly relate to the potential resolution of this proceeding.  Rather, they appeared to concern the resolution of a case that witness X might perhaps commence, based on her allegations, though witness X’s solicitor undoubtedly made some statements concerning the future course of these proceedings.  Some of those statements, at least at first blush, are somewhat troubling and could provide some support for Mr Rush’s contention that improper pressure was being exerted upon him.

12. Nevertheless, I am ultimately not satisfied that the file note, considered in context, provides sufficient evidence to support a finding of abuse of process, or abuse of power, or contempt of court by witness X, her solicitor, or anyone else.  In those circumstances, the file note is excluded from evidence.  The balance of the evidence is also insufficient to establish any abuse of process, abuse of power, or contempt.

13. It should also perhaps be noted in this context that Mr Rush criticised senior counsel for Nationwide and Mr Moran for announcing witness X’s name immediately when he moved on the interlocutory application.  Mr Rush also criticised Nationwide for publishing witness X’s name despite the suppression and non-publication orders that had, by that time, been made.  Both of those matters are highly regrettable.  I do not consider, however, that they bear significantly on the issue whether suppression or non-publication orders should be made.  Nationwide and Mr Moran adduced evidence explaining how it came to publish witness X’s name despite the non-publication orders.

14. Putting all these collateral issues to one side, there could be little doubt that the potential revelation of witness X and her allegations at this late stage of the trial placed Mr Rush under considerable pressure.  That is because the revelation of the allegations  has the capacity to undermine, if not destroy, Mr Rush’s very purpose in bringing these proceedings.  In that regard, it is related to, or is an incident of, the basis for making the non-publication orders which has already been discussed. I do not consider that it alone or independently would provide a basis for the making of non-publication or suppression orders.

15. In all the circumstances, non-publication orders should be made in relation to the identity of witness X and the detail of her allegations that provided the basis for Nationwide and Mr Moran’s amendment application.  As was indicated in the course of the application, it will be necessary to carefully craft the terms of the relevant non-publication order.  The order should be drafted in such a way as to make it clear that it only prevents publication of that information in the context of these proceedings and the amendment application in particular.  If witness X wishes to make her allegations public, either through the media or otherwise, independently of these proceedings, she should be free to do so.  The media should also be free to publish those allegations, again otherwise than in the context of these proceedings, should witness X choose to independently disclose them.

16. I propose at this stage to simply continue the existing interim orders until the form of the final orders can be considered.  I would urge the parties, including the intervening parties, to confer, and endeavour to agree, on a form of order which would reflect these reasons.  If that cannot be done, I will hear further submissions in relation to the form of the order.   

    DISPOSITION AND ORDERS

17. The respondents’ interlocutory application dated 28 October 2018 and filed in Court should be dismissed with costs.

18. The interim suppression and non-publication orders made on 30 October 2018 should be continued until further order.  The intention of that order is to allow further submissions to be made concerning the terms of the final non-publication order.  

I certify that the preceding one hundred and fifty-nine (159) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Associate:  

Dated:        26 November 2018