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Why did Federal Court decide in favour of Geoffrey Rush?

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Melbourne, 12 April: In the current climate of #MeToo movements all over the world, the case of Geoffrey Rush in the Australian courts had the world media eyes set on its outcome. And for the passionate followers of the movement who follow it blindly, the judgment of the Federal Court judge, His Honour Justice Michael Wigney came like a bolt from the blue. The court said that in light of the evidence adduced in court, on the balance of probabilities, the alleged incidents of inappropriate behavior by Rush did not occur.

And thus, his case for defamation must succeed. Let us take a closer look.

The Law – Defamation Act 2005
Dealing with defamation in Australia, Defamation Act 2005 provides protections against any encroachments on the freedom of speech and expression and also against people’s reputations being the subject of defamatory and slanderous attacks in the name of free speech or public interest. In addition to defining the scope and object of providing speedy and non-litigious methods of resolving defamation issues, Section 3 of the Defamation Act 2005, includes two important objectives of the Act:

  1. to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; and
  2. to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter.

And the case of Geoffrey Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (“Rush Case”), these two objectives were at the heart of the case.

Background of the case:
In late 2015 and early 2016, the Sydney Theatre Company (STC) staged a production of the famous Shakespearian tragedy, King Lear.  Geoffrey Rush, returning to STC after some time, assayed the role of King Lear in that production while Eryn Jean Norvill (Ms Norvill) played the famous character of Cordelia. Ms Norvill was an emerging star of the stage.

Well over a year later, on 30 November 2017, Sydney’s The Daily Telegraph newspaper published what was said to be a “world exclusive” story concerning the behavior of Geoffrey Rush during the STC production.  Describing the way it was run by the paper, the judge, His Honour Justice Michael Wigney wrote:

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.”

According to the story, Ms Norville had made the allegations of inappropriate behavior against Geoffrey Rush (Rush) while both worked on that production.

On the very next day, on December 1, 2017, the Telegraph under the prominent headline “WE’RE WITH YOU”, the paper claimed that the story was well corroborated by two STC actors who had worked in the production and were there and suggested were ‘eye witnesses’  to the alleged behavior.

While carrying Rush’s denial of the accusation, the articles characterized 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 Rush again.

Rush sued the Telegraph’s publisher, Nationwide News Pty Limited, and the main author of the stories, Jonathon Moran.  Rush alleged that the articles conveyed a number of defamatory imputations, including that:

  1. he had engaged in scandalously inappropriate behavior in the theatre;
  2. he had engaged in inappropriate behavior of a sexual nature in the theatre;
  3. he had committed sexual assault in the theatre;
  4. he was a pervert and he had behaved as a sexual predator; and
  5. he had inappropriately touched an actor during the production.

Rush claimed that the articles had brought him into “hatred, ridicule and contempt”, that he had been “gravely injured in his character and reputation as an actor” and that he had “suffered hurt and embarrassment and had suffered and will continue to suffer loss and damage”.

Unsurprisingly, he claimed damages, including aggravated damages and economic loss running into the millions of dollars.

Nationwide and Moran defended the proceeding.  They claimed that, in any event, all but one of the imputations that Rush claimed were conveyed by their publications were substantially true.

Now it was for the court to see if Geoffrey Rush had done anything, or acted in any way, so as to justify the assertion that he was a “pervert”, or had engaged in “inappropriate behavior of a sexual nature”, or had “inappropriately touched” Ms Norvill during the production of King Lear.

Nationwide and Moran’s defence was based primarily on the evidence of Ms Norvill.  Another actor Mark Winter, who performed in the production of King Lear, also gave evidence to support Ms Norvill.

Geoffrey Rush denied the allegations. He gave evidence in his defence. And the evidence of director Neil Armfield, and two actors Ms Robyn Nevin and Ms Helen Buday refuted the allegations in the story of Nationwide, Moran and Ms Norvill and supported Geoffrey Rush.

Stage-door Johnny crush remark

Apart from the allegations of corpus nature, another allegation to corroborate the allegations of inappropriate behavior was that, during a promotional interview with a journalist, Rush had remarked that he had a “stage-door Johnny crush” on Ms Norvill.

In his defence Rush said and the court accepted that Rush had intended that remark to be nothing more than a light-hearted and jovial way of complimenting Ms Norvill.  He meant no offence.

The 10 June 2016 text message
And yet another piece of corroboration used by Ms Norvill was a text message Rush had sent to Norvill on 10 June 2016, approximately six months after the production of King Lear had concluded, saying he thought about her “more than is socially appropriate”. Rush said that the line in the text which Nationwide and Moran claimed was sexually inappropriate was a throwaway line or joke.  It was his cryptic way of saying to Ms Norvill that he was sorry he had missed the opening of the play that she was then performing in and that he hadn’t forgotten about her.

On the other hand the Nationwide and Moran’s team submitted that the text was some sort of invitation (to Ms Norvill) or that Rush was “putting it out there”.

The judge accepted Rush’s evidence.

“I was not satisfied on the balance of probabilities that anything written or included in the text message that Mr Rush sent Ms Norvill on 10 June 2016 proved the substantial truth of any of the imputations conveyed by the poster or the articles”, the judge added.

To conclude, Justice Wigney clearly stated his mind finding in favor of Rush saying, “I have found that Nationwide and Mr Moran have not discharged their onus of proving the substantial truth of any of the imputations that were conveyed by the poster and the articles in question. I was not satisfied on the balance of probabilities that the incidents during the rehearsals and performances of King Lear occurred as alleged by Nationwide and Mr Moran.   

“The basic problem for Nationwide and Mr Moran was that” the judge observed, “on Ms Norvill’s own account, the incidents during the rehearsals were seen by, or most likely seen by, most of the cast and many of the crew who were working on the play.  Yet Ms Norvill’s evidence about the incidents was not only uncorroborated but was contradicted by, not only the evidence of Mr Rush, but also the evidence of Mr Armfield, Ms Nevin and Ms Buday”. 

Geoffrey Rush and Eryn Jean Norvill
Geoffrey Rush and Eryn Jean Norvill as King Lear and his daughter Cordelia

“The weight of the evidence was solidly against the occurrence of those incidents”, the judge concluded.

The final nail in the Nationwide and Moran case’s coffin was the judge’s finding that Ms Norvill was – “a witness who was, at times, prone to exaggeration and embellishment”.

It is not a good look when your pivotal witness in a court case is found to be NOT credible and prone to exaggeration and embellishment. That can be, by some, understood to mean ‘telling lies’ or ‘making up’ stories.

Award of Aggravated damages $850,000/-
Section 35(2) of the Defamation Act 2005 gives the judges the power to award aggravated damages. The court can award aggravated damages if, and only if, it is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.

Having sat through the “sad and unfortunate” case which according to His Honour should have been dealt with elsewhere,  Justice Wigney exercising the power of Section 35(2) of the Defamation Act 2005 awarded Geoffrey Rush aggravated damages in the amount of $850,000.00.

The judge found, “… those articles were published in an extravagant, excessive and sensationalist manner.

And “… Nationwide and Mr Moran were reckless as to the truth or falsity of the imputations they conveyed and failed to properly inquire into the facts before they published.

“This was, in all the circumstances, a recklessly irresponsible piece of sensationalist journalism of the worst kind”, Justice Wigney said about the two articles.

There is more to come.                                                                                                                                                                                                                                                                                                          -DM

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