Has Geoffrey Rush’s recent court win neutered the Daily Telegraph’s defamation defence?

By Natalie Hickey, March 25, 2018

When people sue for defamation, things can get a lot worse before they (possibly) get better.  It can be very embarrassing, because the impugned material is embarrassing.  As Justice Michael Wigney noted towards the end of a recent decision which Mr Rush otherwise won, it’s the price of open justice that allegations about individuals are aired in open court. It means plaintiffs must accept collateral fallout in bringing the claim.

Fortunately for Geoffrey Rush, things have got a lot better quite soon after he has sued the publisher of the Daily Telegraph for defamation, and well before any trial.

That is because Justice Wigney has tossed out Nationwide News’ attempted justification defence (this is also traditionally called the ‘truth defence’). It means Nationwide News, which publishes the Daily Telegraph and is a defendant, cannot claim that the relevant articles about Mr Rush were substantially true.

This was a big plank of its defence.  Whether or not this case proceeds to trial or settles to Mr Rush’s satisfaction, might depend on Nationwide News’ evaluation of what’s left.

BACKGROUND

Let’s recap.  Mr Rush became a defamation plaintiff after the Daily Telegraph published a series of articles on 30 November 2017 and 1 December 2017.  The articles concerned a complaint made to the Sydney Theatre Company alleging Mr Rush engaged in “inappropriate behaviour” during a performance or performances of the Shakespeare play “King Lear”.

It was the allegation of inappropriate behaviour that Nationwide News said was substantially true, and we will come back to that shortly.

The relevant articles contained headlines such as “King Leer” and “Star’s Bard Behaviour” which, as the judge noted, suggested people like the sub-editors, “simply could not help themselves”.

The context of the articles was also relevant, to Mr Rush’s claim anyway, because in preceding weeks there had been allegations of sexual-based misconduct by actors, producers or personalities including “a famous Hollywood film producer, Harvey Weinstein, a famous Hollywood actor, Kevin Spacey, and the perhaps somewhat less famous and arguably less notable, home-grown “celebrity gardener” and “TV personality” Don Burke” (indicating that the judge may not be particularly impressed by gardening shows).  Mr Rush claims that these surrounding circumstances meant it was likely that readers would construe “inappropriate behavour” to mean, “sexually inappropriate behaviour”.

The positioning of at least one of the articles was also said to be relevant, according to Mr Rush, which is where Don Burke comes in.  That is, an offending article was immediately next to another article concerning the sexually-based allegations against Don Burke during his time as a presenter of “Burke’s Backyard”, suggesting, to Mr Rush anyway, that the relevant allegations were related.

The fight about whether Mr Rush is right about these imputations (the ‘sting’) of the articles, remains for another day.  However, when analyzing the particulars below, one must assume that the relevant imputations are correct, because Nationwide News had essentially accepted this when it claimed that they were “substantially true”.

THE FIGHT ABOUT THE DEFENCE OF TRUTH

Nationwide News had already had one go at its defence.  This was its second attempt.

The question was whether the particulars (the material facts supporting the allegation of justification) gave Mr Rush enough information to understand the allegations being made against him.

In short, did the (Amended) defence provide enough information for Mr Rush to understand the so-called “inappropriate behaviour” he had engaged in?

In Justice Michael Wigney, it looks like Mr Rush found the right person to unpick this issue.  Justice Wigney, a former specialist in white collar crime before coming to the bench, is renowned for his attention to detail.  Consider this anecdote given in his welcome speech when he came to the Federal Court:

Your performance during the Jai Morcom inquest was described by one commentator as follows:

In this inquest Michael Wigney is indeed impressive. He stands for the entire day questioning the witness in every tiny detail. His vocal cords must have the stamina of David Beckham’s legs. Any actor or teach will tell you how strenuous it is talking all day, and especially when there is great repetition of what is being said, with full names being used at all times. Michael Wigney’s stamina clarity focus and thoroughness over these long sessions are indeed impressive.

The commentary continues to sing your praises, referring, in particular, to the cross-examination of a young witness as follows:

For the next one and a half hours Michael Wigney questioned this boy over his statement in the most microscopic detail. … At one point the questioning was so serious and detailed my colleague whispered to me, ‘Is he trying to discredit him?’ I whispered back, ‘No. I think it’s the opposite’ … At the end of the day I have to salute the witness for integrity way beyond his years and for the professionalism correctly weighed against necessary humanity in Michael Wigney. [Mr P Boulten, on behalf of NSW and Australian Bar Associations]

There is no question that the importance of understanding the detail was central to the judge’s ultimate criticism of Nationwide News’ defence.  As he explained, the common element in the relevant imputations was that Mr Rush had engaged in “scandalously inappropriate behaviour in the theatre” and “inappropriately touched” the actress and that his conduct was “so serious” that the Sydney Theatre Company “would never work with him again”.  These meanings, according to the defence, were “substantially true”.

Here are some of the questions the judge wanted answered:

• What exactly was the “scandalously inappropriate behaviour” or “inappropriate behaviour” that Mr Rush was said to have engaged in?
• What exactly had he done which was said to meet those descriptions?
• If the inappropriate behaviour was said to be the inappropriate touching, how exactly had Mr Rush inappropriately touched the actress during the production of King Lear?
• Where had he touched her and in exactly what circumstances?
• Was it said that the touching was intentional?
• Why was the touching inappropriate and so serious that the Sydney Theatre Company would never work with Mr Rush again?

However, according to the judge, the particulars raised even more questions rather than providing answers.  Let’s have a look at the Particulars concerning one of the alleged incidents:

14. In around 2015, the Applicant began rehearsals for the Sydney Theatre Company Limited’s (Sydney Theatre Company_ production of the play “King Lear”, in which the Applicant played the role of King Lear (the Production).
15. The role of King Lear’s daughter, Cordelia, in the Production was played by Eryn Jean Norvill (the Complainant).
16. In the period between around 24 November 2015 and 9 January 2016, the Production was performed at the Sydney Theatre Company.
17. In around November 2015, in an interview with Elissa Blake of the Sydney Morning Herald the Applicant described having a “stage-door Johnny crush” on the Complainant.

17A. The phrase “stage-door Johnny” refers to a man who frequents a theatre for the purpose of courting an actress or chorus girl.

18. On or about 5 January 2016, the Applicant touched the Complainant in a manner that made the Complainant feel uncomfortable.

18A. The touch referred to in the preceding paragraph occurred during a performance of the Production and specifically during the final scene in which the Applicant walks on to the stage carrying the Complainant as she simulated the lifeless body of Cordelia, King Lear’s daughter.

19. The touch referred to in paragraph 18 above was not directed or scripted by any person or necessary for the purpose of the Production.
20. Following the performance referred to in paragraph 18A above the Complainant said to the Applicant words to the effect “stop doing it”.
21. Notwithstanding the Complainant’s demand referred to in paragraph 20, the Applicant repeated the conduct referred to in paragraphs 18 and 18A above on four occasions on 6, 7, 8 and 9 January 2016.

21A. Following each incident referred to in paragraphs 18, 18A and 21 above the Complainant was visibly upset.

The bolded paragraphs are those which the judge considered “the critical allegations”.  The unbolded paragraphs were those he regarded as “contextual”.

As Wigney J noted, the “touch” occurred during the performance of King Lear when Mr Rush was carrying the actress across the stage as she simulated the lifeless body of Cordelia.  In other words, whatever was inappropriate happened when hundreds of patrons were no doubt “intently watching the performance”.   Mr Rush had to carry the actress during the scene.  He had to touch her.  The alleged “touch” must, therefore, have been something more than what Mr Rush had to do to carry the actress across the stage.

So, what was the touch?  Wigney J wanted specifics, not innuendo.  He wanted to know which body parts were involved, noting that Mr Rush’s arms were already likely to be engaged if he was carrying someone across a stage.

Wigney J’s decision keeps drilling into the detail that is lacking:

“Given that the scene required Mr Rush to carry the actress as she feigned being dead, it is possible to imagine many different ways in which the necessary contact between Mr Rush and the actress may have made her feel uncomfortable. Was it because Mr Rush held onto her tightly, or in a position that caused her some pain? Or was it the part of her body that was touched, or the particular nature or character of the touching? Was the discomfort physical or purely emotional?” (at [66])

In circumstances where Nationwide News’ defence claimed that the touch was not directed or scripted, the judge wanted to understand what the script provided for.  He wanted to understand whether Mr Rush was given artistic licence given he was a highly experienced and accomplished actor.  He wanted to understand what was necessary or unnecessary for the performance.

He was also not satisfied with hints of some level of sexual attraction (e.g. the reference to ‘stage door Johnny crush’).  Wigney J wanted details.

It is therefore not a surprise (particularly upon reading pages of questions – the above is very much a synopsis), that the judge concluded that the relevant particulars were loose, ineffective, and with a tendency to obscure rather than elucidate or clarify the issues. He further described them as evasive and ambiguous.  If that wasn’t enough, he considered that they were likely to cause prejudice or embarrassment in the proceeding.  This is because, Wigney J stated, they do not give Mr Rush fair or reasonable notice of the case that is made against him.

He took a similar approach in relation to another incident alleged by Nationwide News, which meant its justification defence was struck out in its entirety.

The judge didn’t make the findings lightly, and the significance of his actions for the case were not lost on him:

“They are made cognisant of the fact that if the particulars are struck out, the defence of justification must also be struck out as disclosing no reasonable cause of action. As discussed earlier, the authorities clearly show that the power to strike out a defence in a defamation case should be exercised with considerable care and caution and a defence should be generally only be struck out in a clear, if not exceptional, case. For the reasons just given, this is such a case.” (at [86])

CAN NATIONWIDE NEWS HAVE ANOTHER SHOT AT PROVING TRUTH?

Defamation cases typically involve lots of technical fights about the imputations and pleadings.  It is therefore quite usual for a defence to be struck out, and for the publisher to have another go which, in this case, would be Version 3.

This is not such a case.

Wigney J observed that there was no reason to suppose that Nationwide News could further supplement the particulars at this time.  He therefore didn’t see any point in giving Nationwide News a further opportunity to supplement or bolster the existing particulars.  He noted that his decision amounted, in effect, to the summary dismissal of Nationwide’s defence of justification (see [108]).

When one thinks about the nature of the questions asked by Wigney J, his lack of confidence that Nationwide News could answer them seems reasonable.  He wanted information likely only to be in the hands of Sydney Theatre Company and that would depend on its cooperation.  For instance, a discussion about the scope of Mr Rush’s artistic licence, and whether his conduct departed from what was scripted, depends on having available a copy of the script, and witnesses capable of providing directorial input.

However, the Daily Telegraph, like all media organisations, tends to rely on second-hand sources.  The relevant articles referred to observations by fellow cast members, and not those able to provide first-hand evidence of the matters so important to the judge.

That the Daily Telegraph did not have all relevant facts before it when publishing the stories is plain from a subpoena it attempted to issue to the Sydney Theatre Company to produce documents relevant to the complaint.  The judge commented upon its breadth, which sought all records of the complaint, emails between Sydney Theatre Company employees and the Board, copies of the nightly show report and/or any other report or log by stage management or production personnel, and a range of other documents.

In a ‘chicken and egg’ scenario, the judge observed that the apparent forensic purpose of the subpoena was to support the justification defence, but that defence had been struck out.

On the basis that the subpoena had no legitimate forensic purpose, and amounted to no more than a fishing expedition, Wigney J set it aside.  It follows that Nationwide News does not have any method, other than securing the Sydney Theatre Company’s voluntary cooperation, to pursue any further defence of truth.  Given people’s traditional reluctance to become embroiled in litigation for no apparent upside, the prospect that this will happen seems unlikely.

IS THERE ANYTHING LEFT OF THE CASE?

The case is not over because Nationwide News may proceed with a qualified privilege defence (although some parts of this were struck out too).

Justice Wigney noted that Mr Rush “somewhat belatedly and apparently, begrudgingly” accepted that this defence was reasonably arguable.

Qualified privilege requires Nationwide News to prove that its conduct in publishing the relevant material was reasonable in the circumstances.  It has to tick a lot of boxes to succeed in this defence, and it may be defeated if Mr Rush can provide that Nationwide News was ‘actuated by malice’ (or some form of collateral purpose) in publishing the story (e.g. to make profits rather than to pursue an issue of genuine public interest).

ANOTHER FEDERAL COURT DEFAMATION PROCEEDING!

As I noted in an earlier blog post, Joe Hockey’s defamation claim against Fairfax appears to be the first defamation case issued in the Federal Court.

I’ve previously covered the jurisdictional basis for how this might be possible, and also some of the reasons why a plaintiff might want to issue defamation proceedings in the Federal Court.  For instance, a plaintiff might prefer not to have a jury trial, and by contrast to State Courts, the Federal Court does not habitually have jury trials.

If Mr Rush thought the Federal Court was likely to offer him confidentiality though, that tactic does not seem to have worked, the judge lifting an interim order for reasons outlined in the opening paragraphs of this post.

Given that defamation cases are now finding their way into the Federal Court, the Court’s processes might need to adapt to this development. Wigney J noted that there was no Federal Court Defamation Practice Note and, in its absence, was reliant on State-based guidelines.  If the Federal Court sees itself as a serious alternative for defamation litigants, it might need to look at this.