Tracey Spicer This is Huge! Court finds Rush accuser not credible, prone to exaggeration and embellishment
You can find the full judgement here - following is Judge Wignall's comprehensive summary.
Rush v Nationwide News Pty Ltd (No 7)  FCA 496 (11 April 2019)
Last Updated: 11 April 2019
FEDERAL COURT OF AUSTRALIA
Rush v Nationwide News Pty Ltd (No 7)  FCA 496
In accordance with the practice of the Federal Court in cases of public interest, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website. This summary will also be available on the website.
This is a sad and unfortunate case.
It plainly would have been better for all concerned if the issues that arose in the saga that played out in this courtroom in October and November last year had been allowed to be dealt with in a different way and in a different place to the harsh adversarial world of a defamation proceeding.
But they were not.
And so it comes to this.
In late 2015 and early 2016, the Sydney Theatre Company (STC) staged a production of the famous Shakespearian tragedy, King Lear. The role of King Lear in that production was played by one of Australia’s most celebrated actors, Mr Geoffrey Rush. The role of Cordelia was played by an emerging star of the stage, Ms Eryn Jean Norvill. By all accounts, the production was well received, as were the performances by Mr Rush and Ms Norvill. The STC subsequently hailed Mr Rush’s return to the STC in King Lear 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.
Mr Rush sued the Telegraph’s publisher, Nationwide News Pty Limited, and the main author of the stories, Mr Jonathon Moran. Mr Rush alleged that the publications conveyed a number of defamatory imputations, including 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 claimed that the articles published by Nationwide and Mr Moran 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 ha[d] suffered and will continue to suffer loss and damage”. He claimed damages, including aggravated damages and economic loss running into the millions of dollars.
Nationwide and Mr Moran defended the proceeding. They alleged that the publications did not convey the alleged imputations. They also claimed that, in any event, all but one of the imputations that Mr Rush claimed were conveyed by their publications were substantially true. In their defence, they maintained that Mr Rush had in fact engaged in scandalously inappropriate behaviour in the theatre, that he had engaged in inappropriate behavior 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.
Nationwide and Mr Moran’s truth defence was 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. They also claimed that Mr Rush had made a sexually inappropriate remark about Ms Norvill to a journalist during a promotional interview, and that, some months after the performance of King Lear had concluded, Mr Rush had sent Ms Norvill what, they say, was a scandalously inappropriate text message.
Nationwide and Mr Moran also contended that, even if Mr Rush was defamed, he was not entitled to aggravated damages or any damages in respect of economic loss.
The key issues
It is important to say something briefly about the role of the Court and the key issues which arose for determination in this proceeding. That is important because many people might believe, or want others to believe, that this case is something that it is not.
The role of the Court is, in simple terms, to apply the law of defamation in Australia to the case as pleaded by the parties and the facts found to have been proven. Those facts must be found on the evidence adduced in this proceeding and this proceeding alone. Nothing more and nothing less.
It is not for the Court to provide some broader social commentary about sexual harassment in the theatre or entertainment industry in Australia, or the #MeToo movement, or the effect that Australia’s defamation laws may have in relation to that movement. Of course some of the issues that need to be addressed in this proceeding must be addressed in the context of societal norms and community standards about sexual harassment and sexually inappropriate behaviour. The #MeToo movement also provides an important contextual backdrop to many of the factual issues. But that is the extent of it.
As for the issues that arose for determination, they are easy to state. Unfortunately, they were not all so easy to resolve.
The first issue was whether the poster and the articles published on 30 November and 1 December 2017 conveyed the imputations that Mr Rush alleged they did. The word “imputation” in the law of defamation simply means the meanings conveyed by the allegedly defamatory publication.
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 contended 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 was whether the articles nevertheless would have conveyed those meanings to the ordinary reasonable reader.
The second issue only arose if it was found that the poster and articles conveyed one or more of the alleged imputations. The issue then was 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 that issue, it was 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 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 concerned the loss and damage that Mr Rush claimed he has suffered by reason of the defamatory publications. That issue, of course, only arose if it was found that one or more of the imputations was conveyed and that Nationwide and Mr Moran had not proved that they were substantially true.
Were the defamatory imputations conveyed?
As I have said, Mr Rush’s claim involved three relevant publications: the poster, the articles concerning him published in the Telegraph on 30 November 2017 and the articles concerning him published in the Telegraph on 1 December 2017.
In my judgment I have set out the relevant legal principles that have been applied in addressing this issue. In simple terms, it must be approached from the perspective of the ordinary reasonable reader. Importantly, the ordinary reasonable reader who reads publications of the sort in issue in this proceeding is taken to be prone to a degree of “loose thinking” and to “read between the lines” in light of their general knowledge and experience of worldly affairs.
Mr Rush claimed that the poster conveyed the following three defamatory meanings or imputations.
First, that he had engaged in scandalously inappropriate behaviour in the theatre.
Second, that he had engaged in inappropriate behaviour of a sexual nature in the theatre.
And third, that he had committed sexual assault in the theatre.
The third of those imputations was only said to have been conveyed if the ordinary reasonable reader read the poster in light of certain extrinsic facts which gave the words used in the poster a special meaning. The extrinsic facts were said by Mr Rush to be, in summary, the media’s portrayal of Harvey Weinstein, Kevin Spacey, Don Burke and a number of other famous actors and movie executives as “sexual predators”.
I have found that the poster conveyed the first of those three imputations. Nationwide and Mr Moran effectively conceded that it did.
I have, however, found that the poster did not convey the other two imputations.
My reasons for so finding are set out in my judgment. In summary, I was not satisfied that the mere use of the words “scandal” and “inappropriate behaviour” in the poster would have been likely to convey to the ordinary reasonable reader that the inappropriate behaviour adverted to in the poster was necessarily of a sexual nature, or involved sexual assault. That was so even if the ordinary reasonable reader read the poster in light of the extrinsic facts.
The 30 November 2017 articles
Mr Rush alleged that the 30 November 2017 articles conveyed four defamatory imputations.
First, that he is a pervert.
Second, that he behaved as a sexual predator while working on the STC’s production of King Lear.
Third, that he engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear.
And fourth, that he engaged in inappropriate behaviour against another person over several months while working on the STC’s production of King Lear.
Mr Rush also alleged that if those meanings were not conveyed by the ordinary natural meaning of the words used in the articles, they would have been conveyed to readers who were in possession of the extrinsic facts.
I have found, on the balance of probabilities, that each of those four defamatory imputations or meanings was conveyed by the 30 November 2017 articles considered as a whole.
My reasons for so finding are set out at length in my judgment. In summary, I considered the following features of the articles in question to be of particular significance in conveying those meanings.
First, the sensational use of the promotional photograph of Mr Rush, as the deranged Lear, on the front page above the prominent headline “KING LEER”. The image was nothing short of striking. The effect of the pun in the headline, together with the photograph, was almost alone sufficient to convey that Mr Rush was a man who leered, or looked slyly at people in a lecherous, lewd or licentious manner.
Second, the pun in the headline on page four, “STAR’S BARD BEHAVIOUR”, clearly conveyed that, despite his denials, Mr Rush had in fact engaged in bad behaviour.
Third, the juxtaposition of the article concerning Don Burke and its placement within the same story “box” suggested that there was some link between the allegations made against Mr Rush and the allegations which had been made against Don Burke. The article about Don Burke reported that he had been described as, amongst other things, a “sexual predator”. It also referred to the “Harvey Weinsten scandal”.
Fourth, the 30 November 2017 articles would have been read by the ordinary reasonable reader in light of either the extrinsic facts I referred to earlier, or what was by then in any event the notorious and widely publicised allegations against Harvey Weinstein, Kevin Spacey and, in Australia at least, Don Burke. By this time those men had frequently been portrayed in the media as sexual predators.
Having regard to the features of the articles I have just summarised, I concluded that the ordinary reasonable reader, who as I noted earlier is taken to be someone who is prone to a degree of loose thinking and who reads between the lines, would have read the articles as imputing or implying the meanings that Mr Rush alleged they did.
The 1 December 2017 articles
Mr Rush alleged that the 1 December 2017 articles conveyed the following seven defamatory imputations.
First, he had committed sexual assault while working on the STC’s production of King Lear.
Second, he had behaved as a sexual predator while working on the STC’s production of King Lear.
Third, he had engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear.
Fourth, he had inappropriately touched an actress while working on the STC’s production of King Lear.
Fifth, he is a pervert.
Sixth, his conduct in inappropriately touching an actress during King Lear was so serious that the STC would never work with him again.
And seventh, he had falsely denied that the STC had told him the identity of the person who had made a complaint against him.
Mr Rush again alleged that if those seven meanings were not conveyed by the ordinary natural meaning of the words used in the articles, they would nevertheless have been conveyed to readers who were in possession of the extrinsic facts.
I have found, on the balance of probabilities, that each of those seven defamatory imputations or meanings was conveyed by the 1 December 2017 articles considered as a whole.
My reasons for arriving at that conclusion are again set out at length in my judgment. In summary, I considered that the following features of the articles in question were of particular significance in conveying those meanings.
First, the articles added new information to what had been published the previous day. That information included that Mr Rush had allegedly inappropriately touched an actress. The articles also asserted that the actress’s claims had been supported by at least two other STC actors and various unnamed sources, including sources who were said to be STC executives.
Second, the unnamed STC sources were reported to have said that they would not work with Mr Rush again because of the seriousness of the allegations. It was also said that the STC had revised its human resources policies to ensure a “safe environment for staff” and that this was considered to be an issue to address in the wake of the “Harvey Weinstein scandal”. Thus the claims against Mr Rush were again linked to that scandal.
Third, while Mr Rush was again reported to have denied the allegations, those denials were portrayed as a “acts of defiance” in the face of the fact that the STC and two of its actors had supported the actress and her claims.
The features of the articles just referred to clearly conveyed that the alleged inappropriate behaviour of Mr Rush was sexual in nature and that, despite his denials, Mr Rush had engaged in that behaviour.
Fourth, the articles reported that, despite his denials, Mr Rush had been told the identity of the complainant during a telephone call with the executive director of the STC. The impression clearly conveyed was that Mr Rush’s denial was false.
Having regard to the features of the articles I have just summarised, I concluded that the ordinary reasonable reader would have read the articles as imputing or implying the meanings that Mr Rush alleged.
Were the defamatory imputations conveyed by the publications substantially true?
Having found that all but two of the alleged imputations were conveyed by the poster and articles in question, it was necessary to consider Nationwide and Mr Moran’s truth defence.
Nationwide and Mr Moran bore the onus of proving that the defamatory imputations which were conveyed by the poster and the articles were substantially true. The standard of proof was the balance of probabilities.
Nationwide and Mr Moran’s case that the imputations were substantially true was based on eight allegations. The allegations were, in summary, as follows.
The first allegation was that, on one occasion when Mr Rush and Ms Norvill were rehearsing the final scene of the play, in which Cordelia is dead and King Lear is grieving over her dead body, Ms Norvill saw Mr Rush hovering his hands over her torso and pretending to caress or stroke her upper torso and then make groping gestures in the air with two cupped hands. It was alleged that those groping gestures were intended to and did simulate Mr Rush groping and fondling Ms Norvill’s breasts. This incident was said to have occurred in front of other members of the cast and perhaps crew.
The second and third allegations were that during the rehearsals Mr Rush regularly made comments or jokes about Ms Norvill or her body which contained sexual innuendo. Nationwide and Mr Moran also alleged that Mr Rush would regularly make lewd gestures in Ms Norvill’s direction and that, on a number of occasions, he looked at Ms Norvill, stuck his tongue out and licked his lips and used his hands to grope the air like he was fondling Ms Norvill’s hips or breasts. That conduct was also said to have often occurred in the presence of members of the cast and crew.
The fourth allegation was that, during a promotional interview with a journalist, Mr Rush remarked that he had a “stage-door Johnny crush” on Ms Norvill.
The fifth allegation was that during one preview performance of the play, Mr Rush departed from the way in which the last scene had previously been performed. Instead of touching Ms Norvill’s hand and face as had been repeatedly rehearsed, he allegedly moved his hand so that it traced down Ms Norvill’s torso and across the side of her right breast. Nationwide and Mr Moran alleged that the day after that incident, the director of the play, Mr Armfield, gave Mr Rush an oral “note”, in the presence of other cast members, in which he said that Mr Rush should make his performance in the last scene more “paternal” as it was becoming “creepy and unclear”.
The sixth allegation concerned an incident which was said to have occurred during a performance which occurred at some time between 14 and 26 December 2015. The final scene of the play involved Mr Rush carrying Ms Norvill onto the stage in his arms. Immediately before that occurred, Ms Norvill stood on a chair backstage in the prompt side wings so as to facilitate Mr Rush lifting her into his arms before carrying her onto the stage. Nationwide and Mr Moran alleged that in a performance during this period, before lifting Ms Norvill from the chair, Mr Rush placed his hand on Ms Norvill’s lower back over her shirt. He then moved his hand under Ms Norvill’s shirt and along the waistline of her jeans, brushing across the skin of her lower back. The movement was said to have been “light in pressure, slow and ... deliberate” and to have lasted for about 20 to 30 seconds.
The seventh allegation was similar. Nationwide and Mr Moran alleged that, in a performance of the play in the period between 4 and 9 January 2016, Mr Rush again touched Ms Norvill on the back just prior to lifting her from the chair before carrying her on stage for the final scene. It was alleged that Rush gently rubbed his fingers over Ms Norvill’s lower back from right to left.
The eighth allegation was that, on 10 June 2016, about six months after the production of King Lear had concluded, Mr Rush sent a text message to Ms Norvill in which he said that he thought about her “more than is socially appropriate”.
Nationwide and Mr Moran’s case that those incidents occurred was based primarily on the evidence of Ms Norvill. They also called evidence from one of the other actors who performed in the production of King Lear, Mr Winter, in relation to two of the allegations.
Mr Rush denied that any of the incidents which were alleged to have occurred during the rehearsals or performances of King Lear occurred. He gave evidence himself and adduced evidence from the director of the play, Mr Armfield, and two of the other actors from the King Learproduction, Ms Robyn Nevin and Ms Helen Buday, in relation to those allegations.
As for the remark about having a “stage-door Johnny crush” on Ms Norvill, Mr Rush said that he intended that remark to be nothing more than a light-hearted and jovial way of complimenting Ms Norvill. He meant no offence. As for the text message, Mr Rush said that the line in the text which Nationwide and Mr 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.
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. I was also not persuaded that either the remark made to the journalist, or the June 2016 text message, when fairly considered, was capable of proving the substantial truth of any of the imputations conveyed by the poster and articles.
Accordingly, Nationwide and Mr Moran did not make out their truth defence.
My reasons for arriving at those findings are set out at considerable length in my judgment. It is not really possible to adequately summarise them here. My judgment runs to over 200 pages in length. Many of those pages are devoted to a close consideration of the evidence in relation to the eight alleged incidents.
What follows is a very brief summary.
Incidents during rehearsals
Nationwide and Mr Moran’s case that Mr Rush engaged in inappropriate behaviour towards Ms Norvill during the rehearsals was based almost entirely on the evidence of Ms Norvill. Mr Winter only gave evidence in relation to the incident that was the basis of the first allegation.
Having heard and considered the evidence concerning those alleged incidents as a whole, I was not persuaded that Ms Norvill’s evidence concerning them was credible or reliable. Nor was I persuaded that Mr Winter’s evidence concerning the one incident that he said he witnessed was credible or reliable.
The basic problem for Nationwide and Mr Moran was that, 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.
The weight of the evidence was solidly against the occurrence of those incidents.
As for the one incident where there was some corroborating evidence, when closely analysed Mr Winter’s evidence in fact provided scant corroboration for Ms Norvill. The incident apparently witnessed by Mr Winter, which he described as being like a Three Stooges style “skit” involving a “jokey gesture” at the end, bore little relationship to the much more serious incident described by Ms Norvill in her evidence. Mr Winter’s evidence concerning this incident was, in any event, far from convincing or persuasive.
Another problem for Nationwide and Mr Moran was that I was not ultimately persuaded that Ms Norvill was an entirely credible witness or that her evidence about the allegations was reliable.
Before summarising the issues that I had with Ms Norvill’s evidence, I should emphasise that in assessing the reliability of Ms Norvill’s evidence, I was acutely conscious of and had regard to the difficulties and disadvantages that are often encountered by complainants in cases involving allegations of sexual harassment. I was also conscious of the fact that Ms Norvill was not a party to this proceeding, had no vested interest in it, and had essentially been dragged into the spotlight by the actions of Nationwide and Mr Moran.
Nevertheless, the issues that I had with Ms Norvill’s evidence included the following.
First, Ms Norvill’s evidence about some of Mr Rush’s behaviour appeared to be inconsistent with more contemporaneous accounts she had given of Mr Rush’s behaviour. One example of that was the account Ms Norvill gave to Ms Annelies Crowe, the Company Manager of the STC, in early April 2016. That was effectively the first time Ms Norvill had made any complaint about Mr Rush’s behavior. The account recorded in Ms Crowe’s email to other senior officers of the STC was different in a number of material respects from the account Ms Norvill eventually gave in her evidence in this proceeding.
Second, Ms Norvill’s evidence was shown to be inconsistent with more contemporaneous statements she made to journalists about what it was like to work with Mr Rush. During one interview, Ms Norvill said that she loved “Geoffrey’s ebullience”. In another, she said that she felt very privileged to work with Mr Rush.
Third, Ms Norvill’s account of Mr Rush’s behaviour appeared, at times, to be at odds with other evidence about her friendship with or attitude towards Mr Rush during the production of King Lear. It suffices to give two examples. The first example was that Ms Norvill attended dinner and a play with Mr Winter, Mr Rush and Mr Rush’s daughter towards the end of the rehearsal period. The second example was that towards the very end of the performances Ms Norvill sent Mr Rush an email referring to him as “Dearest Daddy DeGush”. She signed-off with hugs and kisses. I considered that Ms Norvill’s evidence explaining that email was unpersuasive.
Fourth, in my view, Ms Norvill revealed herself to be a witness who was, at times, prone to exaggeration and embellishment. The clearest example of this was her evidence that all of the cast and crew who were in the rehearsal room were “complicit” in, or “enabled”, Mr Rush’s inappropriate behaviour as described by her. Even if that was evidence only of her belief in that regard, it was a belief which was shown to have no reasonable basis. The apparent suggestion that other members of the cast and crew witnessed inappropriate behaviour by Mr Rush and were unwilling, or unable, to do anything about it was not only entirely uncorroborated, but was directly contradicted by the evidence of not only Mr Rush, but also Mr Armfield, Ms Nevin and Ms Buday.
In all the circumstances, I accepted the evidence of Mr Rush, Mr Armfield, Ms Nevin and Ms Buday in relation to Mr Rush’s behaviour during the rehearsals. I did not accept the evidence of Ms Norvill and Mr Winter.
Incident during the last scene of a preview performance
Nationwide and Mr Moran’s case that Mr Rush stroked or cupped Ms Norvill’s right breast during Act V Scene III of one of the preview performances was reliant on the evidence of Ms Norvill and Mr Winter.
Having considered the whole of the evidence concerning this allegation, I was not satisfied on the balance of probabilities that the incident as described by either Ms Norvill or Mr Winter occurred. Given the nature of the scene, I was not able to entirely exclude the possibility that Mr Rush might have touched Ms Norvill’s breast. I was not satisfied, however, that if that occurred, it occurred intentionally or was, in any way, gratuitous or untoward.
My reasons for arriving at those finding include, in summary, the following.
First, I was not persuaded that Mr Winter’s evidence in relation to this incident was credible or reliable. His evidence did not, in any event, provide much corroboration for Ms Norvill’s account. The incident described by him differed in a number of material respects from the incident as described by Ms Norvill. The differences are referred to in my judgment.
Second, the account of this alleged incident given by both Ms Norvill and Mr Winter was largely contradicted by the evidence of Mr Armfield. Mr Armfield watched the preview performances “like a hawk’ and did not see any gratuitous or untoward conduct by Mr Rush.
Third, Ms Norvill’s evidence concerning Mr Armfield’s oral note of this incident was contradicted by the evidence of, not only Mr Rush, but also, Mr Armfield, Ms Nevin and Ms Buday. It was not supported by any evidence from Mr Winter. There was no reference to the incident described by Ms Norvill in any of Mr Armfield’s detailed notes concerning the preview performances.
Fourth, having heard the evidence of Mr Rush in relation to his approach to the performance of this difficult and complex scene in the play, I considered that the events described by Ms Norvill were improbable or implausible.
Fifth, this incident was said to have occurred in front of not only most of the cast and crew, but also an audience of over 900 people. Yet aside from Ms Norvill, Mr Winter was the only person who gave evidence that he saw this incident occur. His evidence was problematic for the reasons I have already adverted to.
Sixth, as I have already said, I had concerns about Ms Norvill’s credibility and reliability as a witness generally. As I noted earlier, I found her to be a witness who was prone to exaggeration and embellishment.
In all the circumstances, I accepted the evidence of Mr Rush, Mr Armfield, Ms Nevin and Ms Buday in relation to this alleged incident. I did not accept the evidence of Ms Norvill and Mr Winter.
Incidents involving Mr Rush touching Ms Norvill’s back
Nationwide and Mr Moran’s case in relation to these incidents was based entirely on the evidence of Ms Norvill. Ms Norvill’s evidence was uncorroborated, though on her account the incidents were not witnessed by anyone else.
Having considered the whole of the evidence, I was not ultimately satisfied on the balance of probabilities that the incidents as described by Ms Norvill in her evidence occurred. Given the nature of the action that was required by Mr Rush to lift Ms Norvill up and carry her onto the stage for the last scene, I could not completely exclude the possibility that Mr Rush might have touched Ms Norvill’s back in some way on some occasion prior to lifting her up. I was not satisfied, however, that if that occurred, it occurred intentionally or was in any sense gratuitous or untoward.
My reasons for so concluding include, in summary, the following.
First, given Mr Rush’s unchallenged evidence concerning his intense preparation for and performance of the difficult and complex final scene of King Lear, I considered it implausible that he would have engaged in the conduct described by Ms Norvill in her evidence.
Second, I had misgivings about the general reliability of Ms Norvill’s evidence for the reasons I have already given.
Third, in relation to those particular incidents, Ms Norvill’s evidence was inconsistent in some respects with the account of Mr Rush’s behaviour which she gave to Ms Crowe when she first complained about Mr Rush’s behaviour in early April 2016.
In all the circumstances, I accepted the evidence of Mr Rush in relation to these alleged incidents. I did not accept the evidence of Ms Norvill.
“Stage-door Johnny crush”
I was not satisfied on the balance of probabilities that the remark that Mr Rush made to a journalist about having a “stage-door Johnny crush” on Ms Norvill proved the truth of any of the imputations that were conveyed by the poster or the articles in question.
Having regard to the evidence as a whole, including Mr Rush’s evidence about his use of this expression and the context in which it appeared in the resulting article, I was persuaded that this remark was intended to be a light-hearted and humorous compliment of Ms Norvill’s talent as an actress. I also considered that, read in context, it was likely to be construed as such by most people.
I did not, in all the circumstances, accept Ms Norvill’s evidence that she felt humiliated, uncomfortable or disrespected when Mr Rush made the statement. That appeared to be inconsistent with her observed demeanor after the interview with the journalist and inconsistent with other aspects of the evidence as a whole.
It may be accepted that some people might consider the expression used by Mr Rush to be somewhat demeaning and possibly even inappropriate. Context, however, is everything and I do not accept, on balance, that Mr Rush intended the remark to be demeaning. Indeed, quite the contrary. In any event, I do not accept that Mr Rush’s use of this expression could be considered to constitute “scandalously inappropriate behaviour”. Nor do I accept that Mr Rush could be said to be a pervert because he made this remark.
The 10 June 2016 text message
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.
I accepted Mr Rush’s evidence that when he said in the text that he thought of Ms Norvill “more than is socially appropriate”, he intended it to be a throwaway line or joke which conveyed nothing more than that he was sorry he missed the opening performance of the play Ms Norvill was then performing in and that he had not forgotten her. I also accepted that Mr Rush’s use of what he described as the “Groucho emoji” was consistent with that intention. I rejected the submission made on behalf of Nationwide and Mr Moran that this was some sort of invitation or that Mr Rush was “putting it out there”.
Considered in context, including in the context of text messages that had been exchanged between Mr Rush and Ms Norvill in the past, I was not satisfied on the balance of probabilities that Nationwide and Mr Moran had proved that Mr Rush was a “pervert” because he sent that text message. Nor did that text message assist Nationwide and Mr Moran’s case in relation to the substantial truth of any of the other imputations.
Having found that Nationwide and Mr Moran had published defamatory imputations and that Nationwide and Mr Moran had not made out their defence of truth in relation to those imputations, it was necessary for me to assess the appropriate award of damages.
The issue of damages involved three elements. The first element concerned 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 involved determining whether Mr Rush was entitled to aggravated damages arising from any improper or unjustifiable conduct by Nationwide and Mr Moran which increased his distress and hurt. The third element involved determining whether Mr Rush suffered any economic loss by reason of the defamatory publications and, if so, determining what that loss was.
General and aggravated damages
The purpose to be served by the award of general damages in cases of defamation includes consolation for the personal distress and hurt caused by the publication, reparation for the harm done to the applicant’s reputation and vindication of the applicant’s reputation.
The Defamation Act 2005 (NSW) includes a “cap” for damages. That cap is currently just shy of $400,000. The cap does not, however, apply where an applicant establishes that he or she is entitled to aggravated damages.
Aggravated damages may be awarded where there is a lack of bona fides in the respondent’s conduct, or where the respondent’s conduct was improper or unjustified. Conduct by a respondent with those characteristics may be taken to increase or aggravate the harm the defamation caused or might reasonably be supposed to have caused the applicant.
I have found that Mr Rush is entitled to aggravated damages for a number of reasons. My reasons for so finding are set out at length in my judgment. Following is a short summary.
First, I have found that the conduct of Nationwide and Mr Moran in publishing the defamatory imputations in the 30 November 2017 articles was improper or unjustified for at least two reasons. The first reason was that those articles were published in an extravagant, excessive and sensationalist manner. The second reason is that I found that 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.
I also found that Mr Rush’s hurt and injury was increased by the features of the 30 November 2017 articles which I have just summarised. Indeed in all the circumstances it was difficult to avoid the conclusion that it was calculated to damage.
Second, the 1 December 2017 articles were not much better. Indeed, in some respects, they were worse.
I have found that the conduct of Nationwide and Mr Moran in relation to the 1 December 2017 articles was lacking in bona fides and was improper and unjustifiable because they knew that the articles conveyed a misleading impression that two STC actors and the STC itself believed and supported the specific allegations that had been made by the then unnamed complainant. In fact, the two actors had conveyed generic messages of support for actresses who make such complaints and the STC had issued a statement saying that it had confirmed that it had not reached any “conclusion of impropriety”. Nationwide and Mr Moran were also at least reckless in conveying that Mr Rush had falsely denied that the STC had told him who the complainant was.
This was another piece of recklessly irresponsible journalism. Nationwide and Mr Moran’s intentions were clear. Having apparently received some backlash in relation to the previous day’s publications, they set about “bootstrapping” the story to include misleading statements of support for the allegations.
I also found that Mr Rush’s hurt and injury was increased by the features of the 1 December 2017 articles which I have just summarised.
Third, I found that Nationwide and Mr Moran’s conduct of these proceedings was in certain significant respects improper and unjustified.
In summary, I found that it was relevantly unjustifiable in all the circumstances at the time for Nationwide and Mr Moran to have included certain allegations in their initial truth defence. Those allegations were splashed over the front page of the Telegraph the day after a temporary suppression order in relation to the defence was lifted. They were subsequently struck out of the defence. They have never resurfaced.
The unjustifiable conduct of Nationwide and Mr Moran in pleading those allegations at the time and, worse still, trumpeting them in their journal the next day, may be taken to have aggravated the hurt and harm suffered by Mr Rush.
Assessment of aggravated compensatory damages
The assessment of compensatory damages in a defamation case is not a scientific or mathematical exercise. There is no single right answer.
In assessing the appropriate award of aggravated compensatory damages in this matter, I had regard to a number of considerations. They included, in summary, the following:
First, at the time of the defamatory publications, Mr Rush unquestionably had a high and settled reputation in the acting profession, not only in Australia, but throughout the world.
Second, the defamatory publications themselves were distributed and read widely. They were, and were no doubt intended to be, sensational. The story was republished widely throughout the world, in particular in the United States and the United Kingdom.
Third, the defamatory imputations conveyed by the publications were unquestionably extremely serious.
Fourth, there could equally be little doubt that the publications had the effect of destroying Mr Rush’s reputation. It is necessary for the amount of damages awarded to Mr Rush to be sufficient to signal to the public the vindication of his reputation.
Fifth, the effect of the publications on Mr Rush was devastating. The hurt to Mr Rush was aggravated by the conduct of Nationwide and Mr Moran for the reasons I have explained.
Having regard to those considerations, and to all the circumstances of the case generally, I consider that the appropriate award of aggravated compensatory damages to Mr Rush is $850,000.
Special damages for economic loss
A person who has been defamed is entitled to have damages for the monetary or financial loss caused by the defamatory publications. Mr Rush claimed that he was entitled to special damages because the defamatory publications had caused a loss in his earning capacity. Nationwide and Mr Moran disputed that claim and contended that it was unsupported by the evidence.
I have found, on the balance of probabilities, that the defamatory publications did cause Mr Rush to suffer financial loss in the form of lost earning capacity. That loss will continue for some period of time into the future.
My judgment contains my detailed findings in that regard. In short summary, the key findings are:
First, Mr Rush had worked as an actor continually and consistently for many years prior to the publications. He was an actor in demand.
Second, the effect of the publication of the poster and articles on Mr Rush personally was devastating. The effects included that Mr Rush lost confidence in his ability to act and lost the desire and drive to act; his creative spirit was at a low ebb. He was also fearful of audience reaction as a result of the publications.
Third, Mr Rush was likely to receive less offers of work as a result of the fact that one of the effects of the publications was that he was linked, or was likely to be linked, to other actors who had been exposed by the #MeToo movement.
Fourth, Mr Rush had not worked from the date of the publications until the date of the trial.
Fifth, on the basis of my assessment of the expert evidence in relation to Mr Rush’s prospects going forward, Mr Rush was unlikely to receive any real offers of work until 12 months after the vindication of his reputation. After that time Mr Rush will begin receiving offers again, though initially at a lesser rate than he did before the publications. My assessment was that he will receive offers at 50% of the previous rate for the period between 12 and 18 months after vindication and offers at 75% of the previous rate for the period between 18 and 24 months after vindication. Thereafter, Mr Rush will receive offers at more or less the same rate as he did previously.
Sixth, I formed the view that I require further assistance and submissions from the parties before arriving at a final figure quantifying Mr Rush’s economic loss.
I propose in due course to make procedural orders to facilitate a further short hearing with a view to finalising all outstanding issues, including the quantification of Mr Rush’s economic loss, the question whether the injunction sought by Mr Rush should be made, whether there should be any interest on the judgment and who should pay the costs of the proceeding and on what basis. The matter will be listed for a further case management hearing for the purpose of making such procedural orders.