FEDERAL COURT OF AUSTRALIA
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
File number: NSD 2179 of 2017 Judge: WIGNEY J Date of judgment: 11 April 2019 Catchwords: DEFAMATION – where numerous defamatory imputations alleged – consideration of whether the alleged imputations were conveyed by the publications – consideration of principles of “ordinary reasonable person” and “natural and ordinary” meaning – consideration of whether publications conveyed guilt – consideration of whether publications contained statements as an “antidote” to the “bane” of the defamatory statements – consideration of whether alleged extrinsic facts were matters of general knowledge or notoriety – where defence of justification pleaded by respondents pursuant to s 25 of the Defamation Act 2005 (NSW) – consideration of whether on balance of probabilities the words and “defamatory sting” conveyed by publications were substantially true – where onus of proving pleaded imputations were conveyed by the publications was discharged – where defence of justification failed
Held: application granted – certain defamatory imputations conveyed by the publication – defence of justification not successful
DAMAGES – where applicant sought general compensatory damages for non-economic loss – where applicant sought aggravated damages – assessment of general or compensatory damages – consideration of appropriate and rational relationship between harm sustained by applicant from the publications and the amount of damages – where applicant sought special damages for past economic loss and future economic loss as a result of defamatory publications – consideration of what applicant’s future income would have been but for the defamatory publications – consideration of expert evidence – quantification of damages
Legislation: Defamation Act 2005 (NSW) ss 4, 8, 25, 29, 30, 34, 35, 35(1), 35(2) and 36
Evidence Act 1995 (Cth) ss 44, 69, 102, 135 and 140
Federal Court of Australia Act 1976 (Cth) ss 51A and 52
Cases cited: Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; 1 WLR 1526
Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154
Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535
Briginshaw v Briginshaw (1938) 60 CLR 336
Bristow v Adams [2012] NSWCA 166
Broome v Cassell & Co Ltd [1972] AC 1027
Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Chakravarti v Advertiser Newspapers Limited (1998)193 CLR 519
Chalmers v Payne (1835) 2 Cr M & R 156 at 159; (1835) 150 ER 67
Chase v News Group Newspapers Ltd [2002] All ER (D) 20 (Dec); EWCA Civ 1772; [2003] EMLR 218
Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Coyne v Citizen Finance Limited (1990 – 1991) 172 CLR 211
Crampton v Nugawela (1996) 41 NSWLR 176
Cripps v Vakras [2014] VSC 279
Cross v Queensland Newspapers Pty Limited [2008] NSWCA 80
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Duffy v Google Inc (No 2) [2015] SASC 206
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186
Fink v Fink (1946) 74 CLR 127
Flegg v Hallett [2015] QSC 167
Flood v Times Newspapers Ltd [2012] 2 AC 273 at [8]; 4 All ER 913
Fox v Boulter [2013] EWHC 1435 (QB)
Fox v Percy (2003) 214 CLR 118
Habib v Nationwide News Pty Ltd (2010) 78 NSWLR 619
Haertsch v TCN Channel Nine Pty Ltd [2010] NSWSC 182
Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194
Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
Hough v London Express Newspaper, Ltd [1940] 2 KB 507 at 515; [1940] 3 All ER 31
Howden v “Truth” & “Sportsman” Ltd (1937) 58 CLR 416
John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291
John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; (2003) 201 ALR 77; [2003] HCA 50
Jones v Skelton [1963] 1 WLR 1362; [1963] 3 All ER 952
Lee v Wilson and MacKinnon (1934) 51 CLR 276
Lewis v Daily Telegraph Ltd [1964] AC 234
Ley v Hamilton (1935) 153 LT 384
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Mastronardo v Commonwealth Bank of Australia Ltd [2018] NSWCA 136
Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1
Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992)110 ALR 449
Norris v Blake (No 2) (1997) 41 NSWLR 49
O’Brien v McKean (1968) 118 CLR 540
Pahuja v TCN Channel Nine Pty Ltd (No 3) [2018] NSWSC 893
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388
Palmer v The Queen (1998) 193 CLR 1
Plato Films Ltd v Speidel [1961] AC 1090
Puels v Exelerate Funding Pty Ltd (2005) 214 ALR 616
R v SAB (2008) 20 VR 55
R v Uhrig (unreported, New South Wales Court of Criminal Appeal, 24 October 1996)
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550
Rush v Nationwide News Pty Ltd (No 4) [2018] FCA 1558
Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851
Rush v Nationwide News Pty Ltd [2018] FCA 357
Sands v South Australia (2015) 122 SASR 195
Sims v Wran [1984] 1 NSWLR 317
Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Slim v Daily Telegraph Ltd [1968] 2 QB 157
Slipper v British Broadcasting Corporation [1991] QB 283
Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140
Speight v Gosnay (1891) 60 LJQB 231
Tabet v Gett (2010) 240 CLR 537
Ten Group Pty Ltd v Cornes (2012) 114 SASR 46
The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291
Triggell v Pheeney (1951) 82 CLR 497
Trkulja v Google LLC (2018) 356 ALR 178
Wagner & Ors v Harbour RadioPty Ltd & Ors [2018] QSC 201
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58
Wilson v Bauer Media Pty Ltd [2017] VSC 521
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
Date of hearing: 22, 23, 24, 25, 26, 29, 30, 31 October 2018 and 1, 2, 5, 6, 7, 8 and 9 November 2018 Registry: New South Wales Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 927 Counsel for the Applicant: Mr B R McClintock SC with Ms S T Chrysanthou [Mr K Smark SC on 31 October 2018 and 2 November 2018] Solicitor for the Applicant: HWL Ebsworth Lawyers Counsel for the Respondents: Mr T D Blackburn SC with Ms L Barnett Solicitor for the Respondents: Ashurst Australia ORDERS
NSD 2179 of 2017 BETWEEN: GEOFFREY ROY RUSH
Applicant
AND: NATIONWIDE NEWS PTY LIMITED
First Respondent
JONATHON MORAN
Second Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
11 April 2019
THE COURT ORDERS THAT:
1.Verdict and judgment be entered for the applicant.
2.The respondents pay the applicant damages for non-economic loss, including aggravated damages, assessed at $850,000.
3.The assessment of special damages for economic loss suffered by the applicant be reserved for further consideration.
4.The matter be listed for a Case Management Hearing at 9.30 am on 10 May 2019 for the purpose of making procedural orders for the determination of all outstanding issues, including the assessment of special damages for economic loss, injunctive relief, costs and interest.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE DEFAMATORY MATTERS COMPLAINED OF
[20]
The first matter complained of – The poster
[21]
The second matter complained of – The 30 November 2017 articles
[23]
The third matter complained of – The 1 December 2017 articles
[38]
THE ALLEGED DEFAMATORY IMPUTATIONS
[56]
Imputations allegedly conveyed by the poster
[57]
Imputations allegedly conveyed by the 30 November 2017 articles
[61]
Imputations allegedly conveyed by the 1 December 2017 articles
[64]
ISSUE ONE: WERE THE IMPUTATIONS CONVEYED BY THE MATTERS COMPLAINED OF?
[67]
Relevant principles
[70]
The “ordinary reasonable person” and the “natural and ordinary” meaning
[72]
Investigation, suspicion and guilt
[86]
“Bane and antidote”
[90]
“True innuendo” and extrinsic facts
[92]
Were the alleged extrinsic facts generally known or notorious?
[97]
Imputations conveyed by the poster
[114]
Mr Rush had engaged in scandalously inappropriate behaviour in the theatre
[115]
Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre
[116]
Mr Rush had committed sexual assault in the theatre
[125]
Imputations conveyed by the 30 November 2017 articles
[126]
Mr Rush is a pervert
[127]
Mr Rush behaved as a sexual predator while working on the STC’s production of King Lear
[147]
Mr Rush engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear
[154]
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
[160]
Imputations conveyed by the 1 December 2017 articles
[162]
Mr Rush had committed sexual assault while working on the STC’s production of King Lear
[169]
Mr Rush behaved as a sexual predator while working on the STC’s production of King Lear
[181]
Mr Rush engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear
[191]
Mr Rush, an acting legend, had inappropriately touched an actress while working on the STC’s production of King Lear
[194]
Mr Rush is a pervert
[195]
Mr Rush’s conduct in inappropriately touching an actress during King Lear was so serious that the STC would never work with him again
[202]
Mr Rush had falsely denied that the STC had told him the identity of the person who had made a complaint against him
[208]
Summary of findings in relation to the alleged imputations
[216]
ISSUE TWO: WERE THE IMPUTATIONS SUBSTANTIALLY TRUE?
[220]
Relevant provisions and principles
[221]
The particulars of truth pleaded by Nationwide and Mr Moran
[230]
Uncontroversial background facts
[242]
Mr Rush
[243]
Ms Norvill
[245]
Pre-King Lear contact between Mr Rush and Ms Norvill
[246]
King Lear
[251]
Cast and crew
[254]
Rehearsals
[268]
Previews
[270]
Media and publicity
[272]
Performances
[278]
Complaint
[285]
Mr Rush’s knowledge of the complaint
[289]
Other contact or communications between Mr Rush and Ms Norvill
[299]
Some observations concerning witness demeanour and credibility
[305]
Mr Rush
[312]
Mr Armfield
[320]
Ms Buday
[321]
Ms Nevin
[323]
Ms Norvill
[327]
Mr Winter
[345]
Ms Norvill’s meeting with Ms Crowe in April 2016
[347]
Allegation one: Groping and fondling gestures during a rehearsal
[380]
Ms Norvill’s evidence
[381]
Mr Winter’s evidence
[385]
Mr Rush’s evidence
[394]
Mr Armfield’s evidence
[397]
Ms Buday’s evidence
[399]
Ms Nevin’s evidence
[401]
Other aspects of Ms Norvill’s evidence about the rehearsals
[405]
Ms Norvill’s evidence that everyone in the rehearsal room was “complicit”
[406]
Ms Norvill’s evidence that Mr Rush directed sexual remarks and gestures to other female members of the cast and crew
[420]
Ms Norvill’s evidence concerning conversations she had with Ms Thomson, Ms Nevin and Mr Armfield
[429]
Conversation with Ms Thomson
[430]
Conversations with Ms Nevin
[432]
Conversation with Mr Armfield
[450]
Other evidence
[457]
Findings
[459]
Allegations two and three: Sexual innuendo and lewd gestures during the rehearsals
[467]
Ms Norvill’s evidence
[470]
Mr Winter’s evidence
[475]
Mr Rush’s evidence
[477]
Mr Armfield’s evidence
[486]
Ms Buday’s evidence
[489]
Ms Nevin’s evidence
[491]
Other evidence – Media interviews and statements
[494]
Findings
[502]
Allegation four: “stage-door Johnny crush”
[513]
Ms Norvill’s evidence
[518]
Mr Rush’s evidence
[520]
Other evidence
[523]
Findings
[524]
Allegation five: Stroking or brushing Ms Norvill’s breast
[530]
Ms Norvill’s evidence
[532]
Mr Winter’s evidence
[539]
Mr Rush’s evidence
[542]
Mr Rush’s evidence concerning Mr Trewhella’s email
[549]
Mr Armfield’s evidence
[567]
Ms Buday’s evidence
[573]
Ms Nevin’s evidence
[574]
Other evidence
[575]
Findings
[576]
Allegation six: Touching and brushing Ms Norvill’s lower back
[594]
Ms Norvill’s evidence
[595]
Mr Rush’s evidence
[598]
Other evidence
[603]
Findings
[609]
Allegation seven: Further touching of Ms Norvill’s back
[630]
Ms Norvill’s evidence
[631]
Mr Rush’s evidence
[633]
Findings
[634]
Allegation eight: Texting think of you “more than is socially appropriate”
[636]
The 2014 text messages
[638]
The 10 June 2016 text message
[641]
Ms Norvill’s evidence about the text
[642]
Mr Rush’s evidence
[643]
Ms Buday’s evidence
[647]
Findings
[648]
Summary of findings and conclusion in respect of the truth defence
[657]
CONCLUSION IN RELATION TO LIABILITY
[661]
DAMAGES
[665]
Compensatory damages
[666]
Mr Rush’s reputation prior to the publications
[674]
Publication and republication
[695]
Hurt and distress
[702]
Aggravated damages
[717]
General principles in relation to aggravated damages
[721]
The nature of the 30 November 2017 articles
[728]
The nature of the 1 December 2017 articles
[743]
The course of the proceedings and the reporting thereof
[765]
The falsity of the imputations
[778]
Imputations 10(g) and 10(f)
[780]
Other matters
[782]
Conclusion in relation to aggravated damages
[783]
Assessment of general or compensatory damages
[784]
Special damages for economic loss
[793]
Past economic loss
[799]
Pleading issues
[801]
Main issues
[811]
Why has Mr Rush not worked?
[813]
Findings
[843]
Quantification
[852]
Future economic loss
[861]
Relevant principles
[864]
Summary of the key factual issues
[868]
Will Mr Rush ever be able to work again and if so, when?
[873]
When is Mr Rush likely to receive offers of work?
[878]
What would Mr Rush’s future income have been but for the publications?
[897]
Other issues – The reports of Mr Potter and Mr Samuel
[907]
Quantification
[920]
CONCLUSION IN RELATION TO DAMAGES
[922]
OTHER RELIEF
[924]
JUDGMENT AND ORDERS
[925]
SCHEDULE 1
SCHEDULE 2
SCHEDULE 3
SCHEDULE 4
SCHEDULE 5
SCHEDULE 6
SCHEDULE 7
WIGNEY J:
O, you are men of stones!
Had I your tongues and eyes, I’d use them so
That heaven’s vault should crack. She’s gone for ever.
I know when one is dead and when one lives;
She’s dead as earth. Lend me a looking-glass;
If that her breath will mist or stain the stone,
Why then she lives.
So howls a distraught and apparently deranged King Lear as he carries the lifeless body of his youngest daughter, Cordelia, across the stage and then gently lays her on the ground. He then cradles her.
A plague upon you, murderers, traitors all!
I might have saved her; now she’s gone for ever.
Cordelia, Cordelia, stay a little. Ha!
What is’t though sayest? Her voice was ever soft,
Gentle and low, an excellent thing in woman.
I killed the slave that was a-hanging thee.
In the Sydney Theatre Company (STC) production of this famous Shakespearian tragedy, performed at the Roslyn Packer Theatre in Sydney in late 2015 and early 2016, King Lear was played by one of Australia’s most celebrated actors, Mr Geoffrey Rush. Cordelia was played by an emerging star of the stage, Ms Eryn Jean Norvill. By all accounts, this production of King Lear was well received, as were the performances by Mr Rush and Ms Norvill. The STC hailed Mr Rush’s return to the STC in its production as one of the highlights of its 2015 season.
Well over a year later, however, in the midst of the “Harvey Weinstein scandal” and the worldwide explosion of the phenomenon which later became known as the #MeToo movement, Sydney’s The Daily Telegraph newspaper published what was said to be a “world exclusive” story concerning the behaviour of Mr Rush during the STC production. That story ran on 30 November 2017. It was heralded by a billboard or poster that screamed “GEOFFREY RUSH IN SCANDAL CLAIMS” and “THEATRE COMPANY CONFIRMS ‘INAPPROPRIATE BEHAVIOUR’”.
The front page of the 30 November 2017 edition of the Telegraph reproduced the striking, if not somewhat haunting, STC promotional portrait of Mr Rush, made up as the deranged Lear, above the headline “KING LEER”; no doubt an intentional pun. The accompanying story, under another pun-laden headline, “STAR’S BARD BEHAVIOUR”, stated, amongst other things, that Mr Rush had been accused of, but had denied, engaging in “inappropriate behaviour” during the STC’s production of King Lear.
The following day’s edition of the Telegraph doubled-down on the story. Under the prominent headline “WE’RE WITH YOU”, the front page story claimed that two STC actors had “spoke[n] out in support of the actress who has accused Oscar winner Geoffrey Rush of touching her inappropriately during the stage production of King Lear”. While the accompanying articles again noted Mr Rush’s denial of the accusation, one of the other STC actors was quoted as saying, “I was in the show. I believe (her)” and the other was quoted as saying, “[i]t wasn’t a misunderstanding. It wasn’t a joke”. The articles characterised Mr Rush’s denials as “acts of defiance”. Unnamed sources were said to have told the Telegraph that they “believed the woman’s claims” and that the STC would not work with Mr Rush again.
The Telegraph articles on both days also appeared, directly or indirectly, to link the accusations that were said to have been made against Mr Rush to other cases where prominent movie executives, actors and “show business” personalities, both overseas and in Australia, had been accused of sexual harassment or misconduct. The 30 November 2017 articles were positioned alongside an article concerning allegations that a former “TV personality”, Mr Don Burke, had been accused of being, amongst other things, a “sexual predator”. One of the 1 December 2017 articles alluded to what was, by that time, the notorious “Harvey Weinstein scandal” and the almost equally notorious accusations of sexual misconduct that had been made against the actor, Mr Kevin Spacey.
Mr Rush sued the Telegraph’s publisher, Nationwide News Pty Limited, and the main author of the stories, Mr Jonathon Moran. Mr Rush alleges that the publications conveyed a number of defamatory imputations, including, in summary, that: he had engaged in scandalously inappropriate behaviour in the theatre; he had engaged in inappropriate behaviour of a sexual nature in the theatre; he had committed sexual assault in the theatre; he was a pervert; and he had behaved as a sexual predator and had inappropriately touched an actor while working on the STC’s production of King Lear. Mr Rush claims that the articles published by Nationwide and Mr Moran had brought him into “hatred, ridicule and contempt”, that he has been “gravely injured in his character and reputation as an actor” and that he has “suffered hurt and embarrassment and ha[d] suffered and will continue to suffer loss and damage”. He claims damages, including aggravated damages and special damages for economic loss running into the millions of dollars.
Nationwide and Mr Moran defended the proceeding. They allege that the publications did not convey the alleged imputations. They also claim that, in any event, all but one of the imputations that Mr Rush claims were conveyed by their publications were substantially true. In their defence, they maintained that Mr Rush 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. Their contentions were based on claims that Mr Rush had, during the 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 Ms Norvill’s 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.
Nationwide and Mr Moran also claim that, even if Mr Rush was defamed, he is not entitled to aggravated damages or any damages in respect of economic loss.
The issues raised by this case are relatively easy to identify. They are not, however, so easy to resolve.
The first issue is whether the poster and the articles published on 30 November and 1 December 2017 conveyed the imputations that Mr Rush alleges they did. If none of the alleged imputations were conveyed, Mr Rush’s case must fail and judgment would have to be entered for Nationwide and Mr Moran.
As is so often the case in defamation matters involving the media, the poster and the relevant articles for the most part did not expressly or literally state the defamatory meanings that Mr Rush contends they in fact conveyed. For example, the articles did not, in terms, state that Mr Rush was a “pervert” or had behaved as a “sexual predator”. The issue is whether the articles nevertheless would have conveyed those meanings to the ordinary reasonable reader. Would the ordinary reasonable reader in the circumstances have “read between the lines” and concluded that the articles read as a whole were implying or imputing those very meanings?
The second issue only arises if it is found that the poster and articles conveyed one or more of the alleged imputations. The issue, in those circumstances, is whether the imputations found to have been conveyed were substantially true as contended by Nationwide and Mr Moran. Importantly, Nationwide and Mr Moran bore the onus of proving the substantial truth of the imputations that were conveyed. To resolve this issue, it is necessary to carefully and dispassionately consider and assess the often conflicting evidence adduced by Nationwide and Mr Moran, on the one hand, and Mr Rush, on the other, concerning Mr Rush’s behaviour towards Ms Norvill during the STC’s production of King Lear. Did, for example, Mr Rush do anything, or act in any way, so as to justify the assertion that he was a “pervert”, or had engaged in “inappropriate behaviour of a sexual nature”, or had inappropriately touched Ms Norvill during the production of King Lear?
The third issue concerns the loss and damage that Mr Rush claims he has suffered by reason of the defamatory publications. This issue, of course, only arises if it is found that one or more of the imputations was conveyed and Nationwide and Mr Moran cannot demonstrate that they were substantially true.
The issue of damages involves three elements. The first element concerns the assessment of the appropriate amount of money to compensate Mr Rush for the personal distress and hurt caused to him by the publication of the defamatory imputations and to vindicate his reputation. The second element involves determining whether Mr Rush is entitled to aggravated compensatory damages arising from any improper or unjustifiable conduct by Nationwide and Mr Moran, including in their conduct of this proceeding, which increased the subjective hurt suffered by Mr Rush. The third, and perhaps most difficult, element involves determining whether Mr Rush suffered a financial or economic loss by reason of the defamatory publications and, if so, determining what that loss was or is.
The trial commenced on 22 October 2018 and concluded on 9 November 2018.
Mr Rush gave evidence. He also called a number of witnesses in support of his case. In response to Nationwide and Mr Moran’s truth defence, he called evidence from the director of the STC’s production of King Lear, Mr Neil Armfield AO and two actors who performed in the play: Ms Robyn Nevin AM and Ms Helen Buday. Mr Armfield, Ms Nevin and Ms Buday gave evidence about Mr Rush’s reputation, as did a number of other witnesses called in Mr Rush’s case: his wife, Ms Jane Menelaus, Mr Trevor Smith, Ms Robyn Kershaw, Ms Margaret O’Bryan, Mr Simon Phillips, Mr John Gaden AO and Ms Judith Davis. He adduced expert opinion evidence relating to his economic loss claim from three witnesses who were highly experienced in the movie and entertainment industry: Mr Fred Schepisi AO, Mr Fred Specktor and Ms Robyn Russell. He also adduced evidence relating to the quantification of his economic loss claim from a forensic accountant, Mr Michael Potter.
Nationwide and Mr Moran’s principal witness in support of their truth defence was Ms Norvill. They also adduced evidence on that issue from another actor who appeared in King Lear, Mr Mark Winter. Finally, they tendered expert opinion evidence in response to Mr Rush’s claim for economic loss. That evidence came from Mr Richard Marks, an entertainment attorney, and Mr Tony Samuel, a forensic accountant.
Before addressing the three key issues which have just been highlighted, it is necessary to identify the relevant publications and the imputations that Mr Rush contends were conveyed by them.
THE DEFAMATORY MATTERS COMPLAINED OF
Section 8 of the Defamation Act 2005 (NSW) provides that a person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the “matter”. As has already been noted, Mr Rush’s claim concerns three publications, or “matters complained of”, each of which he contends contained numerous defamatory imputations.
The first matter complained of – The poster
The first matter complained of was a poster which was distributed for display outside newsagencies throughout New South Wales and the Australian Capital Territory on 30 November 2017. The poster advertised a story which appeared in the Telegraph that day. It contained the words: “World Exclusive Geoffrey Rush in Scandal Claims” and “Theatre Company Confirms ‘Inappropriate Behaviour’”.
The poster is reproduced in Schedule 1 to these reasons.
The second matter complained of – The 30 November 2017 articles
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 pages four and five of the Telegraph. The substance of the articles was also published on the Telegraph’s website and tablet “app”.
The front page of the Telegraph published on 30 November contained a large head and shoulders photograph of Mr Rush apparently made up in the character of King Lear. The photograph appeared above a large headline: “KING LEER”, and the smaller headline: “WORLD EXCLUSIVE Oscar-winner Rush denies ‘inappropriate behaviour’ during Sydney stage show”.
The text of the article on the front page of the 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 story concerning Mr Rush occupied almost all of the front page. Three shorter unrelated stories appeared down the left-hand side of the page.
The front page of the Telegraph on 30 November 2017 is reproduced in Schedule 2 to these reasons.
The articles concerning Mr Rush continued on pages four and five of the newspaper. Pages four and five faced each other so as to form a two page spread devoted to the story.
Page four contained a large headline: “STAR’S BARD BEHAVIOUR”, below a smaller headline continuing across both pages stating: “Oscar-winner Geoffrey Rush denies complaint made in Sydney Theatre Shakespeare production”. Below the headline was a large photograph of Mr Rush when he received his Academy Award and smaller photographs of Mr Rush in character in Twelfth Night and as Einstein in the television series, Genius, as well as a photograph of Mr Rush shaking hands with Governor-General Peter Cosgrove when he received his Order of Australia.
The text of the article on page four 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” an 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.
The article concerning Mr Rush occupied almost all of page four save for a short article at the foot of the page concerning the New South Wales government’s recycling scheme.
Page four of the Telegraph on 30 November 2017 is reproduced in Schedule 3 to these reasons.
Page five contained another large photograph of Mr Rush and a smaller photograph showing Mr Rush in character as King Lear. At the top of the page, in larger typescript than was used in the body of the article, statements made by an “STC spokeswoman” and “[l]awyer for Rush, Nicholas Pullen” were quoted. The STC spokeswoman is recorded as having said: “Sydney Theatre Company received a complaint alleging that Mr Geoffrey Rush had engaged in inappropriate behaviour”. Mr Rush’s lawyer is recorded as having said: “It does not warrant comment except that it is false and untrue”.
The text of the article on page five was as follows:
“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.
The article concerning Mr Rush occupied most, but not all, of page five. The layout of page five was such that the article concerning Mr Rush appeared in a box. Two smaller articles appeared outside the box. Importantly, however, another article appeared inside the same box as the article concerning Mr Rush. That article concerned allegations of sexual assault that had been levelled at the former “TV personality”, Mr Don Burke. The text of that article, which appeared under the small headline, “Service to counsel affected Nine staff”, was as follows:
CHANNEL Nine has opened an independent counselling service following allegations this week of sexual assault by former TV personality Don Burke as the network’s boss Hugh Marks addresses staff for the first time, saying “we cannot rewrite history”.
A new phone line was set up yesterday to allow people to report instances of past behaviour they would like addressed.
“Former Nine employees with complaints can provide their personal contact details and HR will follow up directly on a strictly confidential basis,” Nine said in an email to staff.
The counselling will be provided at no cost to them, Nine said, and will support the person to “work through any issues that relate to their time” at Nine.
Mr Marks, meanwhile, told staff that allegations of harassment and misconduct by Burke was “appalling”, vowing to deal with misconduct, harassment, discrimination and bullying issues “effectively”.
Burke returned to Nine’s A Current Affair, this week where he admitted to behaving like a bullying tyrant, and having “a number of affairs”, but cannot remember “exact things I did 20 years ago”.
He has been described as a “sexual predator” and “psychotic bully” during the 17-year run of Burke’s Backyard. Speaking to ACA host Tracy Grimshaw, he claimed to be a victim of a “witch hunt” ignited by the Harvey Weinstein scandal.
As will be seen, Mr Rush contends that, in considering the imputations that were conveyed by the 30 November 2017 articles, it is relevant to have regard to the positioning and content of the article concerning Mr Burke.
Page five of the Telegraph on 30 November 2017 is reproduced in Schedule 4 to these reasons.
The third matter complained of – The 1 December 2017 articles
The third matter complained of is a series of articles, published in the Telegraph on 1 December 2017. Those articles appeared on the front page and pages four and five. The articles were also substantially published on the Telegraph’s website and tablet app.
The front page of the Telegraph on 1 December 2017 contained a banner headline: “UNSCRIPTED DRAMA: THE OSCAR STAR SCANDAL”, above a very large headline: “WE’RE WITH YOU”, and a smaller headline: “Theatre cast back accuser as Rush denies ‘touching’”. The front page also included a large photograph of the actor, Mr Meyne Wyatt, alongside the words, apparently attributed to Mr Wyatt: “I was in the show. I believe (her)”.
The text of the article on the front page 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”.
The story concerning Mr Rush occupied almost all of the front page. Three smaller unrelated stories appear at the very foot of the page.
The front page of the Telegraph on 1 December 2017 is reproduced in Schedule 5 to these reasons.
Pages four and five of the Telegraph on 1 December 2017, which again appeared as a double page spread, contained a series of articles all of which related, in one way or another, to the allegations made against Mr Rush. Spread across the top of both pages was a large headline: “ACTS OF DEFIANCE”. Appearing under that headline were extracts from social media “posts” by Mr Wyatt and another actor, Mr Brandon McClelland. Mr Wyatt and Mr McClelland were pictured alongside short descriptions of their acting careers.
Mr Wyatt’s post, as portrayed in the articles, was:
I was in the show. I believe whoever 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!!!
Two lines of Mr Wyatt’s post were blacked-out or redacted.
Mr McClelland’s post or “tweet”, as reproduced in the articles, was:
It wasn’t a misunderstanding. It wasn’t a joke.
The article which accompanied the social media posts of Mr Wyatt and Mr McClelland appeared under the headline: “Sydney Theatre Company actors support complainant’s claims against megastar Rush”. The text of that article was 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”.
Extracts from statements made by Mr Rush and the STC also appeared under the “ACTS OF DEFIANCE” headline. The extract from Mr Rush’s statement was as follows:
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 … 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.
The extract from the STC’s statement was as follows:
Sydney Theatre Company was asked by a News Corp 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.
On the left-hand side of page four, a separate article appeared under the headline: “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 photograph of the Old Vic Theatre in London appeared above the article. That photograph was obviously included because the article referred to complaints having been made against Mr Spacey arising from his time as artistic director at that theatre.
The following article appeared at the foot of page four under the headline: “Statement for acting veteran blasts STC ‘smear’”:
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.
Two smaller articles relating to Mr Rush also appeared at the foot of page five. The first of those articles, which appeared under the headline: “THEATRE’S FIRM STATE OF PLAY”, was in the following terms:
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 other article, which appeared under the headline: “Execs’ exile for star”, and alongside a photograph of Mr Rush in character in the film, Pirates of the Caribbean, was in the following terms:
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.
Pages four and five of the Telegraph on 1 December 2017 are reproduced in Schedules 6 and 7.
THE ALLEGED DEFAMATORY IMPUTATIONS
As has already been noted, Mr Rush alleges that each of the three matters complained of carried a number of different defamatory imputations.
Imputations allegedly conveyed by the poster
Mr Rush claims that the poster conveyed the following two defamatory meanings or imputations:
(a)Mr Rush had engaged in scandalously inappropriate behaviour in the theatre.
(b)Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre.
Mr Rush also alleges that, by reason of certain “extrinsic facts”, the poster conveyed two further defamatory imputations, being:
(a)Mr Rush had committed sexual assault in the theatre.
(b)Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre.
The particulars of the alleged extrinsic facts pleaded by Mr Rush are as follows:
(a)Mr Rush is a famous Australian Hollywood actor.
(b)In the weeks preceding the publication of the first matter complained of, a number of famous actors and movie and television executives, including in Hollywood, had been portrayed in the media and on social media as sexual predators who had committed acts of sexual assault and/or sexual harassment.
(c)In the weeks preceding the publication of the first matter complained of, famous Hollywood film producer Harvey Weinstein had been portrayed as a sexual predator who had committed acts of sexual assault and/or sexual harassment.
(d)In the weeks preceding the publication of the first matter complained of, famous Hollywood actor Kevin Spacey had been portrayed as a sexual predator who had committed acts of sexual assault and/or sexual harassment.
(e)In the days preceding the publication of the first matter complained of, Australian television personality Don Burke was portrayed by the media as being a sexual predator.
(f)Each of the facts set out in (a)-(e) above were notorious facts.
(g)Readers of the first matter complained of were aware of the facts set out in (a)-(e).
Nationwide and Mr Moran deny that the poster conveyed any of the alleged imputations, either in its natural and ordinary meaning, or with the aid of the alleged extrinsic facts or otherwise.
Imputations allegedly conveyed by the 30 November 2017 articles
Mr Rush alleges that the 30 November 2017 articles conveyed the following defamatory imputations:
(a)Mr Rush is a pervert.
(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, a famous actor, engaged in inappropriate behaviour against another person over several months while working on the STC’s production of King Lear.
Mr Rush also alleges, in the alternative, that the 30 November 2017 articles conveyed those four defamatory imputations by reason of the same extrinsic facts referred to earlier in the context of the poster.
Nationwide and Mr Moran deny that the 30 November 2017 articles conveyed any of the alleged imputations, either in their natural and ordinary meaning, or with the aid of the alleged extrinsic facts or otherwise.
Imputations allegedly conveyed by the 1 December 2017 articles
Mr Rush alleges that the 1 December 2017 articles conveyed the following defamatory imputations:
(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, an acting legend, 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.
(g)Mr Rush had falsely denied that the STC had told him the identity of the person who had made a complaint against him.
Mr Rush also alleges, in the alternative, that the 1 December 2017 articles conveyed those seven defamatory imputations by reason of the extrinsic facts referred to earlier.
Nationwide and Mr Moran deny that the 1 December 2017 articles conveyed any of the alleged imputations, either in their natural and ordinary meaning, or with the aid of the alleged extrinsic facts or otherwise.
ISSUE ONE: WERE THE IMPUTATIONS CONVEYED BY THE MATTERS COMPLAINED OF?
Nationwide and Mr Moran ultimately conceded that if the relevant publications conveyed the imputations alleged by Mr Rush, they were defamatory of him. That concession was properly made. Plainly the imputations, if conveyed, would have tended to lower Mr Rush’s reputation in the opinion of right thinking members of the community: cf. Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638-639.
The critical question is whether the imputations were conveyed as alleged by Mr Rush.
The publications did not directly or literally state that Mr Rush had engaged in scandalously inappropriate behaviour in the theatre; that he had engaged in inappropriate behaviour of a sexual nature in the theatre; that he had committed sexual assault in the theatre; that he was a pervert; or that he had behaved as a sexual predator and had inappropriately touched an actress while working on the STC’s production of King Lear. But did the publications nonetheless convey some or all of those meanings to the ordinary reasonable reader? Would the ordinary reasonable reader have “read between the lines” and understood that those meanings were implied or imputed by the publications?
Relevant principles
The principles to be applied in determining whether a publication conveyed defamatory imputations are well settled and were not significantly in issue in this proceeding. The lead authorities and the principles established by them were summarised by Hunt CJ at CL (with whom Mason P and Handley JA agreed) in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164-165, and were more recently considered in this Court by White J in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at [63]-[73]; see also Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [14]-[27]. The basic principles were also recently considered by the High Court in Trkulja v Google LLC (2018) 356 ALR 178 at [30]-[32] in the context of an appeal from the summary dismissal of a defamation action.
It is, for the most part, unnecessary to discuss or even cite all the well-known authorities. The basic principles relevant to this case may be summarised as follows.
The “ordinary reasonable person” and the “natural and ordinary” meaning
First, the applicant, here Mr Rush, bears the onus of proving, on the balance of probabilities, that the alleged defamatory meanings or imputations were conveyed by the publication in question.
Second, the question of whether the defamatory meanings were in fact conveyed is a question of fact.
Third, the relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person. Where, as here, the publications are in writing, the question is what the words used would have conveyed to the ordinary reasonable reader. The Court is required to put itself in the shoes of, or assume the role of, the ordinary reasonable reader. The question is not a question of construction of the words used in the article in the legal sense.
Fourth, in this context the authorities ascribe the ordinary reasonable reader with certain character traits, qualities or characteristics. The ordinary reasonable reader is variously said to be of fair to average intelligence, experience and education. The ordinary reasonable reader is also taken to be fair-minded and neither perverse, morbid nor suspicious of mind, nor “avid for scandal”. Of course, as the High Court pointed out in Trkulja at [31], ordinary men and women in fact have different temperaments, outlooks, degrees of education and life experience, so the exercise is really one of “attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning”.
Fifth, the meaning that the words would convey to the ordinary reasonable reader is often called “the natural and ordinary meaning” of the words. In some cases, the natural and ordinary meaning of the words may be obvious from the direct or literal meaning of the words themselves. More often than not, however, the question turns on what implications or imputations the ordinary reasonable reader would understand were conveyed by the words.
Sixth, in determining what implications or imputations the ordinary reasonable reader would understand or draw from the words, the authorities suggest that the ordinary reasonable reader should generally be taken to approach or consider a publication in a particular way or ways. The ordinary reasonable reader is, for example, said not to be a lawyer who examines the publication overzealously, but rather someone who views the publication casually and is prone to a degree of “loose thinking”. The ordinary reasonable reader also apparently does not live in an “ivory tower” but can and does “read between the lines” in light of their general knowledge and experience of worldly affairs. While they do not search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would. While they read the entire publication and consider the context as a whole, they take into account emphasis that may be given by conspicuous headlines or captions.
Seventh, the mode or manner of publication can be a relevant matter in determining what was conveyed to the ordinary reasonable reader. The ordinary reasonable reader of a book, for example, is likely to read it with more care than he or she would read an article in a newspaper, particularly if that article is sensational. The ordinary reasonable reader of such an article is more prone to engage in loose thinking. That is all the more so where the words which are published are imprecise, ambiguous, loose, fanciful or unusual.
Eighth, as already adverted to, each alleged defamatory imputation has to be considered in the context of the entire publication. It does not follow, however, that each part of the publication must be given equal significance. A headline, for example, may give the reader a predisposition about what follows and may therefore assume particular importance: John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [187]; (2003) 201 ALR 77 at [187]; [2003] HCA 50 at [187] (Callinan J; Gleeson CJ agreeing at [1]; Heydon J agreeing at [219]; see too McHugh J at [26]). Equally, contrary statements in an article will not necessarily or automatically negate the effect of other defamatory statements contained in the article: Rivkin at [26] (per McHugh J) and the cases there cited.
Ninth, the meaning that an ordinary reasonable reader would attribute to a publication, or the impression that the reader forms, may be influenced by the overall tone or tenor of the article in question. The article may, for example, be tinged with, or even pregnant with, insinuation or suggestion. It may also implicitly invite the reader to adopt a suspicious approach. As Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137:
It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong.
Tenth, the natural and ordinary meaning of words may be either the literal meaning, or an implied or inferred or an indirect meaning based on the general knowledge of the ordinary reasonable reader: Jones v Skelton [1963] 1 WLR 1362 at 1370; [1963] 3 All ER 952 at 958F. General knowledge, in this context, includes ““matters of universal notoriety” – that is to say, matters which any intelligent viewer or reader may be expected to know”: Fox v Boulter [2013] EWHC 1435 (QB) at [16] (citing Lord Mansfield CJ in R v Horne [1775-1802] All ER Rep 390 at 393E). Evidence is not admissible to prove the general knowledge of the ordinary reasonable reader: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506-507.
Eleventh, the determination of what an ordinary reasonable reader would read into or imply from the words complained of is often a matter of impression.
Twelfth, while a publication may in some cases be reasonably capable of bearing more than one meaning, the tribunal of fact, whether it be a jury or a judge sitting alone, must ultimately determine whether the alleged defamatory meaning was in fact the single natural and ordinary meaning of the words complained of: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173-175: Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 at [34], [47]-[50]; Hockey at [73].
Thirteenth, in determining the meaning in fact conveyed by the publication, the intention of the publisher is irrelevant: Lee v Wilson and MacKinnon (1934) 51 CLR 276 at 288 (per Dixon J); Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; 1 WLR 1526 at [24].
Fourteenth, the manner in which the publication was actually understood is also irrelevant in determining what meaning was conveyed to the ordinary reasonable reader: Hough v London Express Newspaper, Ltd [1940] 2 KB 507 at 515; [1940] 3 All ER 31 at 35; Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at 301-302. The question is to be determined on the basis of the natural and ordinary meaning of the publication alone.
Investigation, suspicion and guilt
A mere statement that a person is being investigated by the police or prosecution agencies, or that a person is suspected of committing a crime, does not necessarily impute guilt. It may convey no more than that there are reasonable grounds to suspect that the person is guilty, or that there are reasonable grounds for investigating whether the person is guilty: Lewis v Daily Telegraph Ltd [1964] AC 234 at 267-268 (per Lord Morris of Borth-y-Gest); Chase v News Group Newspapers Ltd [2002] All ER (D) 20 (Dec); EWCA Civ 1772; [2003] EMLR 218; Flood v Times Newspapers Ltd [2012] 2 AC 273 at [8]; 4 All ER 913 at [8]; Sands v South Australia (2015) 122 SASR 195 at [237]-[240]. The question in such a case is which of the possible meanings was in fact conveyed to the ordinary reasonable reader in all the circumstances. Much will depend on the context, the words used and the information conveyed by the publication considered as a whole.
In that context, in Lewis v Daily Telegraph, Lord Devlin said (at 285):
It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.
Similarly, in Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 (the facts of which, unlike Lewis v Daily Telegraph, somewhat ironically concerned a publication about a fire), Gleeson CJ, McHugh, Gummow and Heydon JJ said (at [12]):
A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise.
(Emphasis in original. Footnote omitted.)
There is no reason to suppose that those principles do not equally apply where the relevant publication concerns a complaint which has been made to, or is being investigated by, a person or body other than the police or the prosecution service.
“Bane and antidote”
There may be cases where the relevant publication includes not only defamatory statements (the “bane”), but also contrary statements or conclusions (the “antidote”). The applicable principle in such a case is that if “[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together”: Chalmers v Payne (1835) 2 Cr M & R 156 at 159; (1835) 150 ER 67 at 68; Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 at [16].
The question whether defamatory meanings conveyed by statements made in a publication have been removed by other statements in the publication – whether the antidote has overcome the bane – is a question of fact which again must be approached from the perspective of the ordinary reasonable reader. In that context, it must also be noted that the “bane and antidote theory reflects the fundamental proposition [that] the “reader is entitled to give some parts of the article more weight than other parts””: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [146], citing Rivkin at [50] (per McHugh J). It follows that contrary statements or conclusions in a publication will not necessary remove or undo the defamatory meanings otherwise conveyed.
“True innuendo” and extrinsic facts
As was noted earlier, Mr Rush contends that, if the alleged imputations did not arise from the natural and ordinary meaning of the words used in the publications, they nevertheless arose in circumstances where the words would have been read in conjunction with certain extrinsic facts. In World Hosts, Mason and Jacobs JJ said (at 641):
When read in conjunction with extrinsic facts, words may, in the law of defamation, have some special or secondary meaning additional to, or different from, their natural and ordinary meaning. This special or secondary meaning is not one which the words, viewed in isolation, are capable of sustaining. It is one which a reader acquainted with the extrinsic facts will ascribe to the matter complained of by reason of his knowledge of those facts because he will understand the words in the light of those facts.
Cases where the alleged defamatory imputations are alleged to have been conveyed having regard to the existence of extrinsic facts are said to involve a plea of “true innuendo”. In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, French CJ, Gummow, Kiefel and Bell JJ described a plea of true innuendo in the following terms (at [51]):
When a true innuendo is pleaded evidence may be given of special facts, known to those to whom the matter was published, such as would lead a reasonable person knowing those facts to conclude that the words have another, defamatory, meaning. The essential requirement of the plea is that the matter is not one within the general knowledge of the hypothetical referees.
(Footnotes omitted.)
As was made clear in Chesterton, an essential requirement of the plea of true innuendo is that the alleged extrinsic or special facts are not within the general knowledge of those to whom the matter was published. The reason for that requirement is, as has already been noted, matters of general knowledge can in any event be considered in determining whether the alleged imputations were conveyed by the natural and ordinary meaning of the words used in the publication. This was explained by Lord Morris of Borth-y-Gest in Jones v Skelton at 1370-1371:
The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.
As also noted earlier, matters of general knowledge are usually “matters of universal notoriety” or “matters which any intelligent viewer or reader may be expected to know”: Fox v Boulter at [16]. Evidence is not admissible to prove the general knowledge of the ordinary reasonable reader: Reader’s Digest at 506. Evidence is, however, admissible to prove special or extrinsic facts.
Given Mr Rush’s alternative plea of true innuendo, it is necessary, before considering whether the alleged imputations were conveyed, to briefly address whether the alleged extrinsic facts pleaded by Mr Rush were matters of general knowledge or notoriety, or whether they were facts that it was necessary for Mr Rush to prove.
Were the alleged extrinsic facts generally known or notorious?
The approach taken by the parties to this issue was not entirely helpful.
Mr Rush’s pleading was somewhat schizophrenic in relation to the way it dealt with the alleged extrinsic facts. That is because the pleading alleged that the so-called extrinsic facts were notorious. As has just been made clear, however, if the facts were notorious, they cannot be extrinsic or special facts for the purposes of a plea of true innuendo.
Ultimately, however, the submissions advanced on behalf of Mr Rush made it clear that their primary case was that the alleged imputations were conveyed by the natural and ordinary meaning of the publications. In that context, Mr Rush submitted that the alleged extrinsic facts were notorious facts and matters of general knowledge and that regard could accordingly be had to those facts in determining whether the imputations were so conveyed.
Mr Rush’s true innuendo case was pleaded in the alternative. He contended that if the Court did not find that the alleged extrinsic facts were matters of common knowledge, he was entitled to prove, and had proved, that they were nevertheless facts which were known to ordinary readers of the Telegraph. In that regard, Mr Rush tendered two lever-arch folders containing copies of numerous articles, including many published in the Telegraph, which he contended showed that in the weeks preceding the publication of the poster and the 30 November and 1 December 2017 articles, numerous actors and movie and television executives, including Harvey Weinstein, Kevin Spacey and Don Burke, had been portrayed by the media as being sexual predators who had committed acts of sexual assault or sexual harassment. He contended that those extrinsic facts were “special”, in the sense that that they would lead ordinary reasonable readers who knew them to conclude that the words used in the relevant Telegraph publications concerning Mr Rush conveyed the alleged defamatory imputations, even though they may not have been conveyed by the natural and ordinary meaning of the words used in the publications.
The position taken by Nationwide and Mr Moran in relation to the alleged extrinsic facts was even less helpful. They did not admit the alleged extrinsic facts, either in their defence or in response to a Notice to Admit Facts served on them by Mr Rush. They did not, however, object to the tender of the two lever-arch folders containing copies of the media articles. More significantly, they did not submit that the articles included in the lever-arch folders did not prove the alleged extrinsic facts. The response given by Nationwide and Mr Moran’s senior counsel, when pressed on that issue in the course of oral submissions, could best be described as noncommittal; it was not conceded that the articles proved the facts, though equally it was not said that they did not. No specific submissions were advanced concerning the content of the articles in the folders. Virtually nothing was said about them.
It was almost conceded, somewhat begrudgingly, that it may have been general knowledge that Mr Rush was a “famous Australian Hollywood actor”, though even that apparent concession was hedged by a quibble about the meaning of “Australian Hollywood actor”. It may be noted, in that context, that Mr Rush was repeatedly referred to as an “Oscar winning Australian actor” in the relevant Telegraph publications.
The question whether the pleaded extrinsic facts were or were not notorious, or within the general knowledge of the ordinary reasonable reader is, in a sense, rather academic or arcane. If they were, they can be considered in determining whether the natural and ordinary meaning of the words used in the impugned publications conveyed the alleged imputations to the ordinary reasonable reader. If they were not notorious, they can, if proved to be facts known, or likely to be known, to ordinary reasonable readers of the Telegraph, be considered in determining whether the impugned publications conveyed the imputations to those readers, even if they were not conveyed by the natural and ordinary meaning of the words used.
Nonetheless, it is necessary to make findings in relation to this issue.
In my view, the substance or effect of the pleaded extrinsic facts could be described as having been notorious or matters of general knowledge at the relevant time. It is, in those circumstances, unnecessary for Mr Rush to have recourse to the true innuendo plea.
In my view, it may be readily accepted that, by the date of the allegedly defamatory publications, it was generally known by most people who engaged in any way with the print or broadcast media, as well as social media, that in the months preceding the publications serious allegations of sexual harassment or sexual misconduct had been made against a number of prominent actors and movie and television executives. The allegations which had been made against Mr Weinstein were perhaps most notorious, though allegations that had been made against Mr Spacey had also been widely reported. In Australia, it was also widely known that allegations of bullying and harassment, including of a sexual nature, had been made against Mr Burke. The exposure of the claims and allegations against such persons eventually became known collectively as the #MeToo movement, particularly on social media, which had provided a popular public platform for the discussion and exposure of such allegations, particularly in the entertainment industry. Hence the hashtag.
It may also be readily accepted that, at the time of the publications, it was widely and generally known, to the point of being notorious, that the famous actors and movie and television actors who had been exposed as having allegedly engaged in such conduct were frequently portrayed in the media, and on social media, as sexual predators who had committed acts or sexual assault and sexual harassment. That was despite the fact that, in many cases, only allegations of such conduct had been made. It was in my view common knowledge throughout much of the world at the time that, as part of the growing public discourse that became the #MeToo movement, Harvey Weinstein and Kevin Spacey were regularly portrayed in the media, and on social media, as sexual predators. The same could be said about Don Burke, at least in Australia.
It should be noted, in this context, that Nationwide and Mr Moran initially appeared to accept that the existence of the #MeToo movement, and the underlying allegations of sexual misconduct that were the subject of it, were matters of universal notoriety or general knowledge at the time of the publication of the articles in question. In their Second Further Amended Defence, Nationwide and Mr Moran pleaded the following “background context” to the publications as part of their then pleaded defence of qualified privilege:
29. In the months preceding the publication of the matters complained of:
29.1There have been widespread reporting in Australia and internationally in relation to allegations of sexual misconduct, bullying and harassment in the entertainment industry which originated with allegations of misconduct by Harvey Weinstein, a powerful Hollywood movie producer and include allegations of misconduct by other men in the entertainment industry including, but not limited to, Kevin Spacey, Dustin Hoffman, Louis CK and Casey Affleck, as well as a report by the Media Entertainment & Art Alliance Actors Equity into widespread sexual harassment in Australian theatre.
29.2The reporting included allegations to the effect that the misconduct was known in the industry but covered up, silenced or protected.
29.3The reporting gave rise to a movement commonly referred to as the #MeToo movement which encouraged women who had been subject to sexual misconduct, bullying or harassment to speak out with a view to discouraging such conduct from occurring.
I have already found that the defamatory publications relevantly caused Mr Rush to suffer a loss of earning capacity which was productive of financial loss. He has been unable to work since the time of the publications. The publications were a cause, if not the main cause, of that state of affairs. I have also found that the publications damaged Mr Rush’s earning capacity because the likely, if not inevitable, effect of the publications was that he would receive less offers of work because of the damage to his reputation. I am satisfied on the balance of probabilities that that state of affairs is likely to continue for some time into the future.
The main issue in respect of future economic loss is one of quantification. In simple terms, the main issue that arises in that regard is for how long, and to what extent, Mr Rush’s loss of earning capacity as a result of the publications will continue into the future. That issue hinges to a large extent on the effect that the vindication of Mr Rush’s reputation will have on his earning capacity. Will Mr Rush be able to work again once this judgment is handed down? If so, when? And if so, when will the offers start to flow again and at what rate?
I should make it plain at the outset that I do not propose to make a final assessment of future economic loss in this judgment. As I foreshadowed in the course of final submissions, I propose to make a series of factual findings relevant to the assessment and then invite the parties to provide further calculations and make further submissions in light of those findings.
Relevant principles
The parties did not favour the Court with any real submissions about the appropriate principles to apply in assessing or quantifying future economic loss. There did not appear to be any major issue between the parties about issues of principle. The main issues between the parties were factual in nature. They included, in general terms: how long would it be before Mr Rush was able to work again; when would offers of work start flowing again; and whether, putting aside the impact of the defamatory publications and the damage to Mr Rush’s reputation arising from them, Mr Rush’s earning capacity was likely to have declined over the next ten years in any event by reason of his age and other circumstances. As will be seen, expert evidence was adduced in relation to those factual issues.
In the circumstances, I do not propose to provide any detailed exposition of the relevant principles in relation to the assessment or quantification of future economic loss. It suffices to say that I have been assisted, in addressing the complex issues involved in this exercise, by the judgment of Clarke JA, with whom Handley and Scheller JA agreed, in Norris v Blake (No 2) (1997) 41 NSWLR 49 and the cases referred to in it, in particular Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. Blake was a case involving a catastrophic physical injury to a then aspiring young actor. The quantification of Mr Blake’s future economic loss arising from his injury was a complicated exercise because it involved, amongst other things, the consideration of what might or might not happen to his career in the future. What was his likely future career path? What was he likely to have earnt in the future? Was he going to be a superstar?
The general approach endorsed in Blake, expressed in simple terms, was that if there was a real possibility or chance of a relevant event occurring in the future, for example Mr Blake becoming a superstar, the court was bound to take that chance or possibility into account in assessing damages. The court “assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability”: Malec at 643.
What is equally clear, however, is that “damages founded on hypothetical evaluations defy precise calculation” and the extent of the adjustment made because of the possibility of future events is at best “a matter of impression”: Blake at 67C referring to Malec at 640 and Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 499. In such circumstances “the hypothetical may be conjectured”: Malec at 643; Tabet v Gett (2010) 240 CLR 537 at [136] (per Kiefel J). The exercise may be difficult, but courts in such circumstances are nonetheless required “to do the best they can in estimating damages; mere difficulty in that regard is not permitted to render an award uncertain or impossible”: Tabet v Gett at [136] citing The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83 citing Fink v Fink (1946) 74 CLR 127 at 143.
Summary of the key factual issues
The key factual issues that in my view need to be addressed in the assessment exercise are as follows.
First, it is necessary to determine the length of time during which the defamatory imputations will continue to have an adverse impact on Mr Rush’s earning capacity. Will he ever be able to work again? If so, when will he be able to start work again?
Second, if Mr Rush is able to begin working again at some stage in the future, when is he likely to receive offers of work and at what rate? The main factual issue here is whether Mr Rush’s reputation will continue to be tainted by the association with the #MeToo movement, even if his reputation is vindicated by this judgment. If so, for how long will that taint continue to adversely impact Mr Rush’s earning capacity and to what extent will his earning capacity be impacted by it?
Third, what was Mr Rush’s income likely to have been in the future but for the effect of the publications? The starting point here would appear to be a consideration of Mr Rush’s past income. But what adjustments should be made to that figure to take into account possible changes to his career that might have occurred irrespective of the damage caused by the defamatory publications? It should be noted here that Mr Rush did not suggest that his future economic loss should be assessed on the basis that he was likely to have earned more than he had in the past. The main question is accordingly whether, ignoring the effect of the publications, there was any chance that Mr Rush would in any event have received less income in the future than he had in the past.
The parties adduced expert evidence which addressed, to some extent at least, these questions. The difficulty, however, is that the answers to these questions involve looking into the uncertain future. There was also very little evidence to assist the Court in relation to some of the questions. It is nevertheless necessary to make findings about these issues doing the best that can be done with the limited evidence.
Will Mr Rush ever be able to work again and if so, when?
I have already found, on the balance of probabilities, that Mr Rush has not worked since the defamatory articles were published and that the defamatory articles were a cause of that state of affairs. Mr Rush was unable to work because of the devastating effect the articles had on him. There was also a significant likelihood that less offers were being made because of the taint associated with the #MeToo movement. The question is whether, once judgment has been handed down and Mr Rush’s reputation had been vindicated, he will be able to recover from the effects of the publications and be able to accept offers of work, should any be made.
This is a particularly difficult issue to resolve. While there was a good deal of evidence about the impact that the publications had on Mr Rush, there was very little evidence about his capacity to recover from that impact should his reputation be vindicated. As has been seen, several of Mr Rush’s friends or colleagues expressed views about this issue. Most of them were fairly pessimistic. Some expressed the view that they believed or feared that Mr Rush may never be able to work again. I doubt, however, that much, if any weight, can be given to those views for the purposes of this exercise.
Unlike the situation which might apply where a person suffers a physical injury, there is no medical or other evidence which might assist. It is really a matter of impression gleaned from the evidence concerning Mr Rush’s attitude to acting and the impact that the publications had on him. There is also an extent to which I must have regard to my assessment of Mr Rush’s demeanour as he gave evidence.
Doing the very best I can on the very limited material before me, I consider that the prospect of Mr Rush never being able to work again as a result of the defamatory publications, even after the vindication of his reputation in these proceedings, is very remote. I consider that, all other things being equal, once his reputation is vindicated, he will eventually be able to engage in acting work again. On my assessment of the evidence as a whole, I consider that Mr Rush’s love of acting and his dedication to his craft will eventually overcome the hurt he has suffered. It is also likely that he will eventually be able to recover his confidence and overcome the fears that have to an extent paralysed him since the publications. He will also no doubt receive the help and encouragement of his family, friends and colleagues in that endeavour.
In my view, Mr Rush’s recovery is likely to occur within 12 months of this judgment. I cannot, of course, entirely exclude the chance or possibility that his recovery may take longer, though on all the evidence I consider that chance to be very remote.
When is Mr Rush likely to receive offers of work?
The expert witnesses called by the parties expressed divergent views in relation to this question.
Mr Marks, who was called by Nationwide and Mr Moran, expressed the view that “the publications will have no ongoing effect on Mr Rush’s ability to obtain acting roles” if his reputation is vindicated in this proceeding. His evidence was that for “someone of Mr Rush’s stature, the publications are likely to be a non-issue after a judgment”.
Mr Schepisi’s evidence was at the other end of the spectrum. His opinion was:
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 juicer than the verdict, and that is fuelled by social media and the internet constantly.
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.
While Mr Schepisi’s view was that Mr Rush will never return to the position he was in prior to the publications, he did not say that he will never receive any offers again. He also expressed the view that there would likely be a delay of 12 to 18 months before Mr Rush received any offers.
Ms Russell’s opinion was similar to, but slightly less emphatic than, Mr Schepisi’s opinion. She expressed the view that even if Mr Rush is successful in this proceeding and it is found that 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”. Ms Russell also added the following:
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).
Thus, like Mr Schepisi, Ms Russell was of the view that Mr Rush is unlikely to ever receive the “same offers” as he did before, but she does not say that he will not receive any offers. Also like Mr Schepisi, Ms Russell considered that there would be a “lag” of at least 12 months before Mr Rush received any offers.
Finally, Mr Specktor expressed the following opinion:
Finally, I disagree with Mr Marks’ opinion that, if Mr Rush is successful in this case, Hollywood would show support for him and he would begin to receive new work. I hope that is the case, but I do not think it will be in the immediate future. Often, in my experience, when an actor or celebrity is tainted by an allegation of impropriety then, regardless of whether or not the allegation is proven, there can be lingering doubts in the minds of the public. If that is the case for Geoffrey, which I think is likely, then it would be unlikely that Hollywood would publicly support him by giving him further work.
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.
I do not propose to consider or discuss the cross-examination of these witnesses in relation to these opinions. It suffices to say that I consider that the views expressed by Mr Specktor were the most persuasive and realistic in all the circumstances. Mr Specktor did not resile from those views in the course of his oral evidence. Needless to say, as Mr Rush’s long-term Hollywood agent, Mr Specktor was perhaps also best placed to form a considered view or impression on this issue. He was certainly more qualified than Mr Marks, who was essentially an entertainment attorney, albeit one who had been to some extent involved in “the process of ‘who’ to offer a role”. Even Mr Marks appeared to concede that Mr Specktor was better placed to express an opinion in relation to this issue. He said that he considered that Mr Specktor was “the gold standard, because he’s Geoffrey Rush’s agent and he’s [sic] a premier agent for decades”.
I was also not impressed or persuaded by much of Mr Marks’ reasoning, which included comparing Mr Rush’s circumstances to the fairly obviously different circumstances of Robert Downey Jr. His view that the publications were likely to be a “non-issue” after judgment was in all the circumstances quite unrealistic. Mr Marks himself appeared to resile from that opinion to a certain extent during cross-examination. He maintained that, once vindicated, Mr Rush would start getting offers straight away, however he ultimately appeared to agree with Mr Specktor and Ms Russell and concede that there would be some lag before the offers recovered to the level that they were before the publications. His evidence in that regard included the following:
You say:
It is likely that the publications will have no ongoing effect on Mr Rush’s ability to obtain acting roles.
Do you still adhere to that statement?---Again, not having the luxury of reading the other experts’ reports and rebutting them, I – I might have included more verbiage here, but I still believe that it only takes one offer and one job and one role and that, at some point, these publications won’t have an effect.
But you don’t think straightaway, do you?---I think straightaway that there will be offers. I agree with Robin Russell and Fred Specktor – and that, within some point, they will get back to the same level of offers, but, as I say, it only takes one juicy part to – to change everything.
Well, just assume for a moment Mr Rush wins. Even if he gets an offer the next day, that movie is not going to be made for some time, is it? They don’t get made instantly?---There is a lag time between offer, acceptance and cameras rolling. Sometimes it could be very short. Sometimes it could be long, but, again, I don’t know what level the offers have been since the publication through today, and I don’t know how they would, you know, immediately come back, but I think they would.
There is one other aspect of the expert evidence on this topic that I should note. During cross-examination, Ms Russell conceded that, at the time she was retained to provide a report, she was personally unaware of the relevant publications. She did not personally know whether what had happened to Mr Rush - “these newspaper articles in Sydney Australia” - was well known in the United States. She said she was not the “right person to ask because [she doesn’t] surf the net looking for this stuff”. It may be accepted that Ms Russell’s concession in that regard to some extent undermined the force of her opinion in relation to Mr Rush specifically. Her opinion appeared to be based primarily on her knowledge of the impact of the #MeToo movement more generally. Mr Marks also gave evidence that he had not been aware of the publications; it had never come across his “radar”.
There was, however, a body of evidence which showed that the substance of the Telegraph’s publications had been republished extensively in the United States and the United Kingdom. In particular, Mr Rush tendered a bundle of articles which appeared in the following publications or websites in the days and weeks following the 30 November and 1 December 2017 publications: Variety (US); the Hollywood Reporter; The Daily Mail (UK); the Huffington Post (UK); People.com; The Independent (UK); Boston 25 News; NBC New York; Business Insider; Screen Rant; Fox news; The Times; The Chicago; the Tribune; USA Today; the Telegraph (UK); the Guardian (UK); the Evening Standard; the Sun; the LA Times; and various others. There was also evidence of publications in other countries. These articles or publications reported, amongst other things, that Mr Rush had been accused of “inappropriate behaviour”. Ms Russell’s evidence was that Variety and the Hollywood Reporter were “trade papers” in Hollywood which were read “religiously” and had been covering the #MeToo movement. Mr Marks also agreed that Variety and the Hollywood Reporter were trade papers in Hollywood. He was also asked about, and was aware of the nature of, many of the newspapers or websites included in the above list.
There could be little doubt that many well-known publications and websites in the United States and United Kingdom republished the story concerning Mr Rush. As I have already noted, the republication throughout the world of the initial publications was the natural and probable result of the initial publications, particularly given Mr Rush’s stature, the sensational nature of the articles and the nature of the #MeToo movement generally. I would readily infer that many people in the movie and entertainment industry in the United States and the United Kingdom would have been aware of the story concerning Mr Rush even if Ms Russell and Mr Marks were not. As noted earlier, Mr Specktor’s evidence was that “[y]ou would have [sic] to be dead not to have come across” the articles.
It should be noted, however, that the opinions expressed by each of the expert witnesses appeared to focus primarily on bigger budget movies, primarily Hollywood movies. Their opinions did not extend to offers of work on smaller budget movies, or movies by independent producers, including in Australia, or offers of work on television, or in respect of voice-overs, or work in the theatre, particularly in Australia. Mr Rush was involved, at various times and to varying degrees, in work in each of those areas. There is essentially no expert opinion evidence in relation to the continuing effect that the publications may have in those areas.
Despite the deficiencies in the evidence, I must again do the best I can to arrive at findings in relation to this issue. The findings I have arrived at are as follows.
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.
Second, while Mr Specktor’s evidence was that there would be a lag of “at least” 12 months before he received offers for movies “at the same rate” as he did before, I find that when Mr Rush starts receiving offers after the initial 12 month lag, they will not immediately come in at the same rate as they did before the publications. Rather they will gradually increase. In my view, the most likely scenario is that in the period between 12 and 18 months after judgment, Mr Rush will receive offers at about 50% of the rate he did before the publications. In the period between 18 and 24 months after judgment, he will receive offers at about 75% of the rate he did before publication. In my view, it will only be two years after this judgment is delivered that the rate of offers, and Mr Rush’s earning capacity, will return to the level that it was before the publications. In my view, this finding is not inconsistent with the opinion of Mr Specktor and is broadly consistent with the opinions of Mr Schepisi and Ms Russell. For the reasons already given, I do not accept the opinion of Mr Marks on this issue.
I appreciate that my assessment of Mr Rush’s prospects going forward are more optimistic and positive than the views expressed by Mr Schepisi and Ms Russell, who considered that Mr Rush’s capacity to earn income from movies will never return to what it was before the publications. In my view, however, Mr Rush’s obvious skills as an actor, and the respect and admiration which he had in the industry prior to the publications will place him in good stead to fully recover his earning capacity over time.
As for offers in relation to theatre, television and independent movies, despite the absence of any expert evidence on this point, in my view the evidence as a whole supports the finding that offers of work in theatre, independent movies and television in Australia and perhaps elsewhere will also not begin to flow again until at least 12 months after judgment. The rate of offers will then gradually begin to recover in much the same way as the movie offers: at about 50% during the period between 12 and 18 months after judgment and at about 75% during the period between 18 and 24 months after judgment. The evidence that assists me in arriving at that finding includes the evidence concerning Mr Rush’s standing and stature in the theatre and broader entertainment industry, particularly in Australia, and his close connections with significant and influential figures in that industry.
I should finally note that I accept that there is a chance or possibility that Mr Rush will receive at least some offers and some work within 12 months of this judgment. I doubt, however, that that work will be particularly large or significant. I also accept that there is a possibility that Mr Rush will not receive any particularly large or significant jobs within the period between 12 and 24 months after the judgment. For the purpose of the assessment of damages, I consider that those possibilities will essentially balance or cancel each other out.
What would Mr Rush’s future income have been but for the publications?
The parties appeared to accept, in a general sense, that the relevant starting point for the calculation of future economic loss was the average income which Mr Rush had earnt in past years. Aside from some fairly minor issues, the financial experts, Mr Potter and Mr Samuel, appeared to agree that Mr Rush’s average net income over the period 2003 to 2017 was $1,490,454. That is, however, no more than a starting point. The issue is what, if any, adjustments have to be made to that figure to take into account any changes to Mr Rush’s career and income earning capacity which might occur in the future. There is also an issue concerning whether an adjustment should be made to take into account the vicissitudes of life.
Nationwide and Mr Moran relied on the evidence of Mr Marks as establishing that Mr Rush’s income, or income earning capacity, into the future was likely to diminish essentially as a product of his age. Mr Marks’ opinions, in summary, included the following.
First, “actors’ roles and remuneration over the course of their career [sic] are speculative, uncertain and unpredictable”.
Second, and perhaps more significantly, the number of roles offered to working actors decreases when they are perceived to be “old”. According to Mr Marks, “old” in Hollywood could be 60 years of age for men.
Third, age is a relevant factor in casting and, when there are roles for older characters, they are generally played by younger actors with make-up and prosthetics.
Fourth, a producer is more likely to hire a younger actor due to the cost of cast insurance for older actors.
Fifth, in general, the number and quality of roles and remuneration would be less for an actor between the ages of 67 and 77 than for an actor between the ages of 57 and 67 and further decreasing for an actor between the ages of 77 and 87.
Mr Schepisi, Mr Specktor and Ms Russell, for the most part disagreed with Mr Marks’ opinions in relation to these five matters. They expressed either contrary views, or expressed the view that Mr Marks’ generalisations do not apply in the case of Mr Rush. I do not propose to consider and discuss the rival views of the experts in relation to these issues in any detail. That is in part because of the factual findings I have made in relation to the other issues. If I had found, for example, that Mr Rush was unlikely to ever work again, or that he would not begin to receive any offers for many years, the sorts of issues considered by Mr Marks, if accepted, could be fairly significant. I have found, however, that Mr Rush will be able to work again within 12 months of the delivery of this judgment and that the offers that will flow to Mr Rush will return to their pre-publication level within two years. I seriously doubt that any of the considerations referred to by Mr Marks are likely to be of any significance in the two year period from the delivery of this judgment.
In any event, on the whole I prefer the evidence of Mr Schepisi, Mr Specktor and Ms Russell in respect of all of these issues. Even if I was persuaded that Mr Marks’ generalisations had any validity, I am not persuaded that they apply to Mr Rush. I consider that each of Mr Schepisi, Mr Specktor and Ms Russell are more directly qualified to express opinions in respect of these matters, and their reasons for rejecting Mr Marks’ generalisations, and their applicability to Mr Rush, are highly persuasive. The views of Mr Schepisi, Mr Specktor and Ms Russell also accord more generally with the evidence concerning Mr Rush’s career progression and trajectory. Far from being in decline, Mr Rush’s career appears to have flourished in recent years, even as he gets older. His income has also been fairly consistent over the years, though higher in some years when he performed in “blockbuster” movies, such as the Pirates of the Caribbean franchise movies.
It follows that I am not persuaded that any adjustments should be made to the assessment of Mr Rush’s likely future income to take into account the opinions expressed by Mr Marks. Putting to one side the impact of the publications, I do not accept that Mr Rush’s income was likely to have declined over the next few years for the reasons given by Mr Marks, or for any other reason. I consider that, but for the publications, his average income for the next few years was likely to remain more or less the same, in real terms, as it had been for the fifteen years prior to the publications.
Other issues – The reports of Mr Potter and Mr Samuel
I have dealt with some of the issues in relation to the respective analyses of Mr Potter and Mr Samuel in my consideration of past economic earnings. It is necessary to say something more about some issues that arise in relation to the assessment or calculation of future economic loss.
Mr Potter was instructed to calculate Mr Rush’s future economic loss in at least four scenarios. Each of those scenarios involved an assumption that Mr Rush would not be able to work for another 12 months after the hearing – that is, until 12 September 2019. In the first scenario, Mr Potter was asked to assume, in effect, that Mr Rush would not be able to perform any work at all until 12 September 2019. In the second scenario, Mr Potter was asked to calculate Mr Rush’s likely future loss on the assumption that he would not be able to work until at least 12 September 2019 and that after that time “he is only offered and carries out 75% of his nominal past workload prior to publication of the matters complained of”. The third and fourth scenarios are similar to the second scenario, though they involve an assumption that Mr Rush is only offered and carries out 50% and 25% respectively of his “nominal past workload”. Mr Potter produced tables of calculations in respect of each of the four scenarios for the next 10 years.
The apparent intention of the assumptions that Mr Potter was asked to make was to produce calculations based on a potential finding that in the future Mr Rush will never be offered the same amount of work that he was offered before the publications. Rather, he will only be offered either 25%, 50% or 75% of the work he previously performed. It would appear from paragraph 2.25 of Mr Potter’s report, however, that he interpreted the instruction to involve him taking into account “the specific risk (also known as vicissitudes) of the claimed lost revenues over the period of the loss arising”. As noted earlier, Mr Samuel was critical, in a professional sense, of Mr Potter’s calculations on the basis that he had not discounted his cash flows to take vicissitudes into account.
In his written outline of closing submissions, Mr Rush submitted that, while Mr Potter did not take into account “specific risks”, his analysis of the 25% to 75% of future earnings scenarios “adequately provides an outline to the Court of the complete range of possible outcomes for his future earnings, having regard to the associated possible future earnings scenarios, and the associated risks”. For their part, Nationwide and Mr Moran submitted that Mr Potter’s calculations based on the 25%, 50% and 75% scenarios should be disregarded because there is no evidence at all to support them.
I agree that Mr Potter’s calculations based on the four different scenarios are of very limited assistance to me in assessing Mr Rush’s future economic loss. That is not intended to be a criticism of Mr Potter. He only did what he was instructed to do. The point is that the different scenarios which formed the basis of Mr Potter’s calculations do not align with the factual findings that I have made about what is likely to occur into the future insofar as Mr Rush’s earning capacity is concerned. I have not found that Mr Rush’s earning capacity will be reduced by 25%, 50% or 75% over the next ten years.
Without restating all that I have already said on this topic, my findings may be summarised as follows.
First, following the delivery of my judgment in this matter, Mr Rush will continue to be unable to engage in any real acting work for the following 12 months. In any event, there will be a lag of at least 12 months following delivery of my judgment before Mr Rush will begin to receive any significant offers of work.
Second, in the six months following that period (the period 12 to 18 months after judgment), Mr Rush will begin to receive offers and will be able to accept them. He will, however, only earn about 50% of what he would otherwise have earned during that period because of the continuing impact of the publications.
Third, in the six months after that (the period 18 to 24 months after judgment), Mr Rush will receive and be able to accept more offers of work. That is, his income earning capacity will recover even more. He will, however, only earn about 75% of what he would otherwise have earned during that period because of the continuing impact of the publications.
Fourth, thereafter Mr Rush will likely receive offers at the same rate as he did prior to the publications. From that time (two years after judgment) Mr Rush’s income will therefore return to what it was prior to the publications.
The future financial loss suffered by Mr Rush as a result of the damage to his earning capacity should be assessed on the basis of those findings, not on the basis of the four scenarios upon which Mr Potter based his calculations.
The only additional issue I should determine is the methodological debate between Mr Potter and Mr Samuel concerning vicissitudes. For the reasons already given, I would not factor into the assessment of the loss suffered by Mr Rush any discount for “vicissitudes” arising from the sorts of matters that were the subject of the competing opinions of Mr Marks, Mr Specktor, Mr Schepisi and Ms Russell. In short, I do not consider that there is any basis for concluding that, putting aside the effect of the defamatory publications, Mr Rush’s earning capacity would have declined in the near future because of his age or any circumstances associated with it.
I am, however, persuaded, that a more general adjustment should be made to the assessment to take into account vicissitudes, such as health and other risks of life which are common to all, particularly for persons of Mr Rush’s age. I also accept and take into account Mr Marks’ opinion that acting is essentially a “fickle business”. In all the circumstances, I am of the view that there should be some discount to take into account the possibility that some perhaps otherwise unforeseen incident or event may occur which would have an impact on Mr Rush’s career and earning capacity. While it is a rather blunt and crude instrument, I would be inclined to apply a discount of 10% to take into account such vicissitudes. I appreciate that a discount of 10% for vicissitudes is less than the discount that is apparently customarily given in personal injuries cases. The circumstances here, however, involve only a period of 24 months going forward. I consider that a discount of 10% is sufficient to take into account considerations such as Mr Rush’s general health and wellbeing during that relatively short period.
Quantification
What then, is to be done in relation to the assessment of Mr Rush’s special damages? On one view of it, I could determine a figure for future economic loss having regard to the findings I have made using Mr Potter and Mr Samuel’s calculation of Mr Rush’s average income in the past. That would require me to perform my own discounted cash flow analysis. I do not propose to do that.
I consider that a preferable and fairer course would be to allow the parties to jointly retain Mr Potter and Mr Samuel, or some other agreed expert or experts if they are not available, to calculate Mr Rush’s future economic loss on the basis of the factual findings I have made. I would also most likely be assisted by further submissions if there is some disagreement between the experts, or the parties, about the calculation of the loss based on my findings. I should make it plain, however, that other than in fairly exceptional circumstances, I would not permit any further evidence to be led in relation to the assessment of damages other than in the form of a joint report of the forensic accountants. Nor would I be inviting the parties to revisit the factual findings I have made in this judgment.
CONCLUSION IN RELATION TO DAMAGES
Mr Rush is entitled to an award of $850,000 in non-economic or general damages. That award includes aggravated damages.
Mr Rush has suffered economic loss arising from the damage to his earning capacity caused by the defamatory publications. While I have made factual findings to enable the quantification of that loss, before I make a final determination in that regard I will hear further from the parties in relation to the assessment of damages based on those findings. In particular, I propose to invite the parties to furnish a joint report from the forensic accountants quantifying the loss based on my factual findings. I will also invite the parties to make further submissions in relation to the quantification exercise. The matter will be listed for a further case management hearing for the purpose of making the necessary procedural orders for that to occur.
OTHER RELIEF
Mr Rush also sought an injunction permanently restraining Nationwide and Mr Moran from publishing the imputations found to have been carried by the publications, as well as any imputations that do not differ in substance from them. He also sought costs and interest pursuant to ss 51A and 52 of the Federal Court of Australia Act 1976 (Cth). It was essentially agreed between the parties that the availability of injunctive relief and issues relating to costs and interest should be dealt with separately after this judgment has been delivered.
JUDGMENT AND ORDERS
Verdict and judgment should be entered for the applicant, Mr Rush.
Nationwide and Mr Moran should be ordered to pay general damages, including aggravated damages, to Mr Rush assessed in the sum of $850,000.
The matter will be listed for a case management hearing on 10 May 2019 at 9.30 am for the purposes of making orders in relation to the filing of further evidence and submissions in respect of the assessment of damages for economic loss and further submissions in relation to injunctive relief, costs and interest.
I certify that the preceding nine hundred and twenty-seven (927) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 11 April 2019
SCHEDULE 1
SCHEDULE 2
SCHEDULE 3
SCHEDULE 4
SCHEDULE 5
SCHEDULE 6
SCHEDULE 7
- AGLC
- Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
- Case
- [2019] FCA 496
- Decision Date
CaseChat Overview and Summary
The court considered whether the alleged defamatory imputations were conveyed by the publications. The court applied the principles of "ordinary reasonable person" and "natural and ordinary" meaning, and found that the publications conveyed the alleged defamatory imputations. The court also considered whether the publications contained statements as an "antidote" to the "bane" of the defamatory statements, and found that the antidote did not overcome the bane. The court also considered whether the alleged extrinsic facts were matters of general knowledge or notoriety, and found that they were not.
The court also considered the defence of justification, which was pleaded by the respondents pursuant to s 25 of the Defamation Act 2005 (NSW). The court found that the onus of proving the pleaded imputations were conveyed by the publications was discharged, and that on balance of probabilities the words and "defamatory sting" conveyed by the publications were substantially true. However, the court found that the defence of justification was not successful.
The court also considered the applicant's claim for damages. The applicant sought general compensatory damages for non-economic loss, aggravated damages, special damages for past economic loss and future economic loss as a result of the defamatory publications. The court assessed the general compensatory damages, including aggravated damages, at $850,000. The assessment of special damages for economic loss suffered by the applicant was reserved for further consideration.
ORDERS:
1. Verdict and judgment be entered for the applicant.
2. The respondents pay the applicant damages for non-economic loss, including aggravated damages, assessed at $850,000.
3. The assessment of special damages for economic loss suffered by the applicant be reserved for further consideration.
4. The matter be listed for a Case Management Hearing at 9.30 am on 10 May 2019 for the purpose of making procedural orders for the determination of all outstanding issues, including the assessment of special damages for economic loss, injunctive relief, costs and interest.
Orders
Orders of the court
1. Verdict and judgment be entered for the applicant.
2. The respondents pay the applicant damages for non-economic loss, including aggravated damages, assessed at $850,000.
3. The assessment of special damages for economic loss suffered by the applicant be reserved for further consideration.
4. The matter be listed for a Case Management Hearing at 9.30 am on 10 May 2019 for the purpose of making procedural orders for the determination of all outstanding issues, including the assessment of special damages for economic loss, injunctive relief, costs and interest.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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