“The Respondents [Nationwide News & Jonathan Moran] consider that the defence is not as strong as previously and for that reason wish to join the Sydney Theatre Company.” (para 144, Rush v Nationwide News Pty Limited No. 2  FCA 550)
This explanation did not work. The effect is that the STC has been left off the hook. The decision also makes for interesting reading.
By way of background, actor Geoffrey Rush commenced defamation proceedings against the publisher of the Daily Telegraph after it published articles concerning 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”.
I have previously posted about a previous interim decision (Rush v Nationwide News Pty Limited No. 1), in which Justice Wigney struck out Nationwide News’ attempted justification defence in a manner which appeared to have a level of finality about it: See Has Geoffrey Rush’s recent court win neutered the Daily Telegraph’s defamation defence?
This post concerns a further failed attempt by Nationwide News to amend its defence, as well as its failed attempt to join the Sydney Theatre Company to the litigation by way of a cross-claim.
Nationwide News’s further attempt to amend its defence
It is not unusual for a party to try to amend its defence (or statement of claim) in a defamation case. These things happen because the processes of defamation law can be surprisingly technical or, as Wigney J said at  of his most recent decision, “tortuous”. Nevertheless, after his last decision, the judge was tolerant of Nationwide News’s supply of a further defence essentially to tidy up a few points.
The ‘uh oh’ factor was that, at a subsequent case management hearing, Nationwide News announced plans to make further changes to the defence. The judge described the changes he subsequently received as “substantial and significant”.
It was not lost on the judge that the changes appeared to involve history repeating itself. That is, the guts of what he had struck out as particulars of justification (supposedly with some degree of finality), had re-appeared. This time, they were in the document for a different purpose. Whereas before they were to support the justification defence, now their aim was to help reduce the amount of damages Nationwide News might have to pay Mr Rush if he won his case. This was apparently because they were “directly relevant background context” (per Burstein v Times Newspapers Ltd 1 WLR 579).
The Burstein principle has logged plenty of lawyer time over the years. Let me explain it this way. Imagine you are sued for defamation because of something you said on Twitter. You have no defence because what you said was horrible and ticks all the defamation boxes. What really annoys you though, is that this hasn’t exactly been a one-way street. Over the years, you’ve been locked in a feud with your Twitter enemy. Frankly, you think he is a troll. He says hateful things on a range of topics all the time on Twitter. He is widely disliked. Sometimes these things are about you. You have heaps of witnesses ready to support you. So, the question is, to what extent are you able to bring up the bad reputation of your opponent, so that your own conduct can be put in context?
The Burstein principle suggests that at least some of these matters may be admissible, but only if they form “directly relevant background context”. To be frank, this expression is as clear as mud or, in the language of Wigney J, “vague and unhelpful”.
Further, and as the judge noted, defamation trials should not become roving inquiries into the plaintiff’s reputation, character or disposition. But equally, the court needs to avoid a situation where it is assessing damages in blinkers. Accordingly, the key task is to work out how to draw the line.
Drawing the line using our hypothetical example might involve the following:
- What Twitter Troll has said about you might be directly relevant, because it might prove that you have been provoked.
- What Twitter Troll said about other people may not be relevant, because it doesn’t justify your decision to weigh in.
- Consideration of the content of what was said: What if Twitter Troll said you are a fat pig (when you are slim and lithe), and you responded that he is a holocaust denier (which is false and untrue)? Is there a sufficient nexus between the two sledges?
- Consideration of the timing of what was said: Is what Twitter Troll said about you five years ago relevant? Or would it only be relevant if it formed part of a calculated campaign to attack you?
- Consideration of proportionality: What if you have 3,000 Twitter followers but he has only a handful?
- Consideration of the method of communication: What if your main beef relates to an email he sent 10 people about you, not something he said on Twitter? Would the picture shift if what he said on email falsely and maliciously cost you your job, you’ve been marched out the door four hours ago and now you’ve guzzled a bottle of scotch and it’s 3 am?
In the case at hand, Wigney J pulled out his black text and put a line through the proposed particulars. They were not Burstein particulars, he decided. Rather, they were:
- little more than hearsay statements, rumour or innuendo; and
- insufficiently connected to the imputations pleaded on behalf of Mr Rush.
According to Wigney J, his decision was fortified by Nationwide News’ delay in making the application.
There was a further matter the judge was concerned about:
“…there are reasonable grounds to suspect that the real reason that Nationwide and Mr Moran have pressed for the inclusion of the previously struck out paragraphs of the defence, either in relation to the mitigation of damages or qualified privilege, is that if those paragraphs are included, they may then seek to re-agitate the subpoena to the STC in the hope that documents produced by the STC might allow it to re-plead a defence of justification. That inference flows from the conduct of the proceeding to date and, in particular, the zeal if not desperation, which has been displayed by Nationwide and Mr Moran in pursuing what have been found to be impermissible inclusions in their defence.” (at ) (emphasis added)
It is fair to say that this passage did not augur well for Nationwide News’s attempt to join the STC as a party to the proceeding.
Nationwide News’s attempt to join the STC to the proceeding via a cross-claim
In the proposed cross-claim, Nationwide News claimed contribution or indemnity from the STC on the basis that it should be liable as joint tort-feasor or otherwise.
One of the bases pleaded was that the STC “encouraged, assented to or conduced or as accessorial in the publication of each of those matters”. In a somewhat rare admission for a judge, Wigney J stated that, “In the event that the reader (like the writer) is not immediately familiar with the word “conduce”, when used in this context, it means “to lead or contribute to a result” (Macquarie Dictionary) or “bring about, bring to effect; lead or tend towards, contribute to; promote encourage” (Shorter Oxford Dictionary).”
That the STC should share responsibility for the Daily Telegraph articles appeared to be largely based on the STC’s conduct faced with the imminent publication of these articles. As Wigney J put it:
“It would be fair to say that the proposed cross-claim is novel. The notion of a major media organization and one of its journalists joining one of its sources for a story, and in doing so, identifying someone previously regarded as a confidential source, is unusual. The STC did not instigate any of the publications. Rather, it was Mr Moran, on behalf of Nationwide, who contacted the STC and asked it to provide an “official comment”. The STC complied with that request and provided what, on one view at least, is a very carefully worded statement concerning an allegation that had been made against Mr Rush. In the following days, Mr Moran sought and received further comment. The suggestion that the STC defamed Mr Rush by providing an official comment to Mr Moran in response to a request by him is, to say the least, somewhat unusual.”
Novelty is not a reason to refuse leave, and the judge was at pains to say this. The bigger issue was that he did not think the proposed claim had any real merit. The very best, he said, was that it is “very weak, if not highly tenuous or questionable” (not exactly a ringing endorsement). He then went on to explain why for the next few pages.
Wigney J then returned to his earlier theme, namely, that the delay was unsatisfactory, and that there was an “almost inescapable” inference that the decision to file a cross-claim against the STC was to obtain document discovery from it to bolster Nationwide News’s defence.
A word about litigation ‘tactics’
All litigation involves forensic or tactical decisions. In fact, the law is only one piece of the puzzle. Exercising good judgment is arguably just as important, even more so, in order to win a case.
Nevertheless, when concluding his reasons for not permitting the cross-claim against the STC, Justice Wigney was critical of Nationwide News on the basis that its attempt to do so was “a forensic or tactical decision”.
One might therefore legitimately ask, “isn’t this an odd thing to say given litigation is inherently about tactics”?
In answer, first, it’s one thing to be tactical, but it’s another to be seen to be tactical. After all, the administration of justice requires parties to pursue their case diligently so that the case is heard as swiftly as possibly. It follows that a court may take a dim view if conduct is seen to be overtly self-serving, so that the paramount interests of the administration of justice are subordinated.
Secondly, in the present case, questions of delay appear to have informed the court’s view. The cross-claim was filed out of time and, in circumstances where the judge remarked on Nationwide News’s status as an experienced, sophisticated and well-represented litigant in defamation matters, he considered it should be held to its earlier tactical decision not to proceed with such a cross-claim. Relevant to this aspect of the decision was that the STC would need time to get up to speed, no doubt leading to further delay prior to trial.
The opening paragraphs of Wigney J’s decision is perhaps the best method to conclude:
“Like many applications in defamation proceedings, [Geoffrey Rush] is anxious to have his claim dealt with quickly so that, if successful, he may be publicly vindicated while the offending publications are still fresh in the mind of the public. He has made that clear from the outset. Perhaps more significantly, like any litigant in this Court, be they an asylum seeker, a Minister of the Crown, a regulatory body, a large media corporation or any ordinary Australian citizen, he is entitled to expect that his claim will be resolved as quickly, inexpensively and efficiently as possible. Regrettably, the approach that Nationwide and Mr Moran have taken to their defence of Mr Rush’s claim threatens to stymie or frustrate the achievement of that overarching objective of the Court’s civil practice and procedure.
It would not be unfair to say, in all the circumstances, that while Nationwide and Mr Moran were quick to publish, they have been slow to defend.”
On 3 April 2018, Nationwide News filed an application for leave to appeal Justice Wigney’s earlier decision striking out some paragraphs of its qualified privilege defence (there is apparently no appeal in relation to the decision to strike out the justification defence). The application has not yet been heard.
The trial has otherwise been set down for hearing on 3 September 2018, with an 8 day estimate.