What we know
And with that, we’ll be wrapping up the liveblog today.
The summary:
- Geoffrey Rush has been awarded at least $850,000 – rising to millions – over a series of articles printed by the Daily Telegraph.
- Justice Michael Wigney said the articles conveyed the imputations that Rush was “a pervert”, “a sexual predator” and “committed sexual assault in a theatre” during a production of King Lear in 2015-16.
- The Telegraph’s defence of truth failed.
- Wigney said the complainant, Eryn Jean Norvill, was “prone to exaggeration and embellishment”, and had been “contradicted” by the director, Neil Armfield, and cast members Robyn Nevin and Helen Buday.
- Wigney awarded Rush aggravated damages because of the Telegraph’s poor journalistic conduct, calling it “a recklessly irresponsible piece of sensationalist journalism of the worst kind”.
- He awarded Rush $850,000 for the damage to his reputation alone, and said he would award more in compensation for Rush’s lost earnings. This will be determined on 10 May, but will be in the millions, given Rush’s earning capacity.
- The Daily Telegraph can appeal the costs and the judgment, but this will only be known after 10 May.
- Outside court, Norvill said she stood by what she said, and she never intended for this to go to court.
Updated
The Daily Telegraph’s failure to speak to Norvill herself also contributed to the “recklessness” which led to aggravated damages.
Wigney writes: “What is significant is that it is readily apparent that [journalist] Mr Moran had not spoken to Ms Norvill and had not confirmed the details of the complaint with her. Indeed, it is readily apparent that Mr Moran knew that Ms Norvill did not want her identity revealed.”
On the role of “sensational reporting” in awarding Rush aggravated damages, Wigney’s judgment makes specific reference to the “King Leer” front page.
“It is difficult to see how the front page image could possibly be considered to be justifiable in light of the relative paucity of the information apparent from the content of the articles.”
Wigney also pointed out that inside the paper, a double-page spread also included an article about Don Burke “within the same ‘box’” as the Rush article.
“Perhaps more significantly, the juxtaposition of the article about Don Burke, and its inclusion within the same “box” as the articles concerning Mr Rush, clearly linked, and it may be inferred was intended to link, the allegations against Mr Rush to the Don Burke story and the broader Harvey Weinstein scandal.”
On how widely the allegations were published. Wigney writes: “The substance of the Telegraph’s publications had been republished extensively in the United States and the United Kingdom.”
Outlets included:
- Variety, the Hollywood Reporter, the Chicago Tribune, the Los Angeles Times (US)
- The Guardian, Evening Standard, the Times, the Daily Mail, the Independent (UK)
- Boston 25 News, NBC New York, Fox News (US TV)
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Finally – Does this case highlight anything wrong with our defamation law system?
Rolph: “This is a very atypical case because it involves a very high-profile plaintiff who was defamed in a very high-profile way. It was a story about an internationally known Australian that was picked up and relayed around the world – in that sense it is an atypical defamation case.
“Viewed from another perspective, I think the case demonstrates – and the judge emphasised this himself – that defamation proceedings are ill-suited to adjudicate the sorts of allegations raised by the article, allegations of workplace sexual harassment, because of the very adversarial nature of the proceedings.”
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It is highly likely that the Telegraph will appeal against the costs – similar to how Bauer Media appealed the costs of the Rebel Wilson suit.
What’s trickier to predict is whether they will have grounds to appeal against the finding against them. An appeal can only be made on an error of law, but not an error of fact.
“It’s always difficult to interfere with a judgment which turns upon hearing witnesses and matters of impression,” Rolph says. “But it is not impossible. There have been cases [of appeal of verdict] with jury verdicts”.
Today’s judgment was delivered by the judge alone, which might make it easier for the Telegraph to appeal the verdict, Rolph says, because the reasons are so clearly laid out.
“Judges give reasons, but juries do not,” he says.
Prof Rolph says there is a potential for an appeal from the Daily Telegraph – but we might have to wait.
“The Telegraph can appeal but will probably have to wait until the next phase of this trial. As the judge foreshadowed, the quantum of damages for economic loss are still to come. An appeal may be some time off.”
Defamation law expert David Rolph from the University of Sydney says this is “a comprehensive win” for Rush because the judge “wholly rejected the truth defence by Nationwide News”.
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Wigney’s written judgment further explains his comments that he thought Norvill “exaggerated and embellished”.
Earlier, Norvill had told the court that she felt Armfield, Buday and Nevin were “complicit” in harassment and allowed it to happen.
“We’re from different generations,” Norvill had said. “Maybe we have different ideas about what is culturally appropriate in a workplace.”
Wigney rejected the idea that the older actors would not notice sexual harassment due to their age. “That submission is rejected,” he wrote. “There is simply no basis for it.”
He then continued: “Ms Norvill’s apparent willingness to cast such aspersions on Ms Nevin, Ms Buday and Mr Armfield, even if she did not intend to do so, did not reflect well on her credibility and reliability as a witness. It displayed a propensity to exaggerate and embellish.”
Wigney’s judgment places a lot of emphasis on the evidence of Neil Armfield, who directed King Lear.
“Mr Armfield was present during the entirety of the rehearsals. It is difficult to imagine that, as the director of the play, he would have done anything other than closely scrutinise and oversee the rehearsals. He denied seeing any of the conduct described by Ms Norvill.”
He adds:
“Any future victim of sexual misbehaviour who is genuine, who wants to make a complaint to the newspapers ... is now going to be severely discouraged from doing so because the consequences are so extreme.
“If you have the judge criticising the evidence of the victim in this case – which he did, I thought unnecessarily and to great length – I think that sends a very bad sign, and it will mean that any reporting of those stories will be much more difficult than it was.”
The host of Media Watch, Paul Barry, has told ABC News that the Telegraph “got smashed out of the park” by the judgment and that their behaviour in publishing was “absolutely staggering”.
“They approached the Sydney Theatre Company and asked if [there had been] a complaint. They did not have [Norvill’s] evidence. They only made the approach to the STC on 28 November and they published on the morning of the 30th – 36 hours later.
“I find it absolutely staggering that you can do that with a case of this importance. They do not go to Rush until 12 hours before the paper hit the streets and two or three hours before the press to roll.”
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Wigney on Norvill’s credibility as a witness:
“In assessing Ms Norvill’s evidence, I am also mindful that people who make allegations relating to sexual assault or sexual harassment are often in a particularly vulnerable position and can experience unique and difficult challenges when giving evidence.
“The absence of corroboration is also a common feature of cases involving sexual harassment. Sexual harassment is often surreptitious and does not occur in public. Many of these considerations apply to Ms Norvill’s circumstances. I have taken them into account...
“However, there are a number of aspects to the evidence which raise significant issues about her credibility as a witness.”
Some excerpts from Wigney’s full judgment regarding witness credibility.
Rush: “Mr Rush was, for the most part, an impressive witness. Nothing in his demeanour suggested that he was doing anything other than giving an accurate and honest account of the relevant events and circumstances.”
Neil Armfield: “Mr Armfield was an impressive witness. There was no issue about his credibility as a witness or the reliability of his evidence generally.
“Despite his obviously close friendship with Mr Rush, I consider that he gave forthright, honest and reliable evidence about the facts and circumstances relevant to the allegations. Nationwide and Mr Moran did not submit otherwise.”
Helen Buday: “Ms Buday was, in some respects at least, a unique, if not, rather unusual witness. To give one example, on more than one occasion, she sang her answer to a question. She was also a difficult witness at times. She was occasionally needlessly disrespectful to senior counsel for Nationwide and Mr Moran.
“[But] I can see no reason why her evidence should not be accepted as being reliable. Nationwide and Mr Moran ultimately did not advance any submissions in relation to Ms Buday’s credibility as a witness.”
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Outside court, Norvill says she stands by everything she said and she never wanted this to play out in court. She says the case had “caused hurt for everyone”.
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Justice Wigney’s full judgment is, as he said, over 200 pages long.
It begins with multiple quotes of King Lear.
“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” and more.
Justice Wigney's judgment in the Geoffrey Rush case begins with multiple long quotes of King Lear.
— Naaman Zhou (@naamanzhou) April 11, 2019
The full judgment is over 200 pages long.
He told the court to read it all "so you can fully appreciate the reasons". pic.twitter.com/hPl6mTtLCq
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Rush thanked his wife and children and said it had been an ordeal. He answered no questions and walked across the street as photographers continued to chase him. Journalists asked if he felt vindicated but he didn’t answer.
Rush walked into the press pack as his lawyer announced the actor would make a short statement. A supporter nearby shouted “congratulations Geoffrey”.
Rush thanks his wife and children. "It's been extremely distressing for all involved." pic.twitter.com/YGpFmeM5L1
— Helen Davidson (@heldavidson) April 11, 2019
Rush, Norvill and others have not yet left court, and may speak outside.
Press waiting for Rush to leave the court building pic.twitter.com/MBJcuRI2DN
— Helen Davidson (@heldavidson) April 11, 2019
Summary
It’s a big win for Geoffrey Rush.
The judge ruled that all but two of his claimed imputations were indeed conveyed by the Daily Telegraph’s articles and poster. The Telegraph’s entire truth defence was then rejected. Rush was awarded $850,000, with that figure to rise by millions.
The main findings:
- The Daily Telegraph’s articles conveyed the impression that Rush was “a pervert”, “a sexual predator” and “committed sexual assault in a theatre” during the King Lear production
- The Telegraph’s attempt to prove this was true was rejected
- The evidence of the complainant, Eryn Jean Norvill, was “not only uncorroborated but contradicted” by the director, Neil Armfield, and cast members Robyn Nevin and Helen Buday
- The evidence of cast member Mark Leonard Winter, who corroborated Norvill’s account, was judged not credible
- Norvill was “prone to exaggeration and embellishment”, according to Wigney
- Rush was awarded aggravated damages, because of the poor conduct of the Daily Telegraph
- Wigney said it was “a recklessly irresponsible piece of sensational journalism of the worst kind”
- Rush was given $850,000 just for the damage to his reputation
- This figure could rise by millions, because Rush was also awarded compensation for lost earnings due to the article
Updated
From Wigney’s calculations, Rush is set to win millions more once the numbers are settled on his lost earnings.
Since the publication in October 2017, Rush has not worked.
And Wigney then said for the next 18 months after today, he expects him to earn 50% of his usual amount. Between 18 months and 24 months, he expects him to earn 75%.
Earlier, Rush’s lawyers submitted that he lost $5m of income between the publication and the trial (in October 2018).
Thus, we can expect that calculation of lost earnings to be in the millions. That will then be added to the $850,000 for just the damage to his reputation, and his distress.
There will be a case management hearing on 10 May to figure out further details.
And Wigney adjourns the court.
Wigney is now wrapping up. He tells the court that people should read his judgment before they begin their critique.
“Before you judge my judgment, as you are entitled to do, I ask that you read my judgment, so you can fully appreciate the reasons,” he says.
Wigney also says Rush is entitled to compensation for lost economic opportunities – but he doesn’t yet know how much.
He says he thinks Rush did lose acting opportunities. “He lost the desire to act, his creative spirit was at a low ebb, he was fearful of audience reaction.
“He was unlikely to receive any real offers of work at least until 12 months after the vindication of his reputation of this judgment.”
Wigney also says Rush’s salary will probably be lower than previously, for any jobs he does get, until 18 months from now.
But he wants to discuss this further with both parties to judge this amount.
Updated
Wigney says the amount should be $850,000, just for the hurt to his reputation. There could be more for the economic loss from lost jobs.
“He unquestionably had a high and settled reputation not only in Australia but around the world,” Wigney says.
He said the articles were read widely, around the world. Thus he awards $850,000.
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Wigney says Rush’s hurt and injury was then increased by the second article published as a follow-up.
Updated
Rush wins aggravated damages
Wigney says Rush is entitled to aggravated damages, because the conduct of the Telegraph was “improper and unjustified”. He says the articles were “extravagent and sensationalist”.
He says they were “reckless as to the truth” of what they published, and they did not properly inquire to check if they were true.
“This was a recklessly irresponsible piece of sensational journalism of the worst kind,” he says.
Without aggravated damages, there is a cap for damages of just under $400,000. But now that aggravated damages are awarded, the amount given to Rush can be higher.
Now onto damages and the payout to Rush.
Wigney says there are three elements:
- How much to compensate Rush for the hurt to his reputation
- Whether he was entitled to aggravated damages, due to any potential improper conduct by the Telegraph
- Whether he suffered economic loss due to the articles
Updated
Norvill, by the way, appears to be wearing a purple ribbon, which notes the International Day for the Elimination of Violence against Women.
Wigney is now moving on to another alleged incident, that Rush traced his hand over her breast during a performance preview with an audience.
Wigney notes that the director, Neil Armfield, said he “watched it like a hawk” and saw nothing untoward.
He said it also occurred in front of an audience of 900 people. “Yet aside from Norvill, Winter was the only one [who saw this occur]”.
He was not satisfied that it occurred.
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For clarity – that was regarding allegations that Rush mimed “groping” Norvill during rehearsal.
Wigney says Norvill’s evidence showed she was a witness “prone to exaggeration and embellishment”.
Norvill closes her eyes at hearing this statement.
“I was not ultimately persuaded that Ms Norvill was an entirely credible witness”, Wigney says.
He says he was “acutely conscious” of the “difficulties... encountered by victims of sexual harassment”. He notes that Norvill also “had nothing to gain” by making the allegations against Rush.
But, he says, “her evidence was inconsistent with statements she gave to journalists about what it was like working with Mr Rush, including that she loved his ebullience, and loved working with him”.
Updated
Regarding the allegation that Rush harassed Norvill by miming “groping”, Wigney said there was not enough to corroborate Norvill’s claims.
Winter said he saw it, but fellow cast members Robyn Nevin and Helen Buday and the director, Neil Armfield, said they did not.
Wigney said Winter’s evidence did not align with Norvill’s, because Winter said it was a “Three Stooges-esque skit” and not the serious allegation that Norvill made.
Norvill’s evidence was “not only uncorroborated but contradicted by ... the evidence of Rush, Armfield, Nevin and Buday.” The evidence was “solidly against” her and the newspaper.
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Daily Telegraph's defence fails
Wigney has said that he is “not satisfied on the balance of probabilities” that the incidents the Daily Telegraph’s lawyers alleged actually occurred.
Norvill’s evidence was not credible, nor was that of fellow actor Mark Leonard Winter, who backed Norvill.
Wigney says his judgment is over 200 pages long.
But in summary: “[The newspaper] did not make out their truth defence.”
Updated
Geoffrey Rush and Eryn Jean Norvill are both watching Wigney intently as he reads out his judgment. Rush’s wife has bristled at the description of some allegations of her husband’s behaviour. Norvill continues to watch Wigney. Rush too, watches intently, his hands folded in his lap.
Updated
Wigney is now taking us through all the Daily Telegraph’s evidence that these imputations – of being a “pervert” and “sexual predator” etc – are true.
A lot of that was summarised earlier in this blog, and in this guide.
Essentially, the newspaper claimed:
- Rush “hovered his hands” above Norvill’s chest while her eyes were closed and “made groping gestures in the air with two cupped hands intended to simulate groping and fondling breasts”
- Rush “traced across” her breast with his hand
- He put his hand under her shirt on her lower back
- He sent her a text that said he thought of her “more than is socially appropriate”
Updated
The Daily Telegraph now has to prove that these imputations are “substantially true”.
But not for the two imputations that were not even conveyed
Updated
All imputations in the second article are also conveyed, Wigney says.
For the second newspaper article, Rush alleged the following imputations were conveyed:
- That he committed sexual assault
- Was a sexual predator
- Inappropriately touched an actress
- That he is a pervert
- His conduct in inappropriately touching an actress was so serious the STC would not work with him again
- That he falsely denied he knew who made the complaint against him
All, says Wigney, were conveyed by the article.
Wigney rules that all four imputations claimed by Rush against the first newspaper article are indeed conveyed by the article.
They were that Rush was a:
- Pervert
- Sexual predator
- Committed inappropriate behaviour of a sexual nature
- Committed inappropriate behaviour against another person over several months
He says the sensational use of a photograph of Rush with the headline “King Leer” is what meant they were conveyed.
“The effect of the pun and the photo was almost alone to convey that Rush was a man who leered at people,” he says.
Updated
Wigney says he was not satisfied that the words “scandal” and “inappropriate behaviour” in the poster would convey that his behaviour was necessarily sexual, or sexual assault.
Wigney says the poster conveyed one out of three imputations.
Rush said the poster conveyed three imputations:
- That he committed scandalously inappropriate behaviour in the theatre
- Inappropriate behaviour of a sexual nature
- That he committed sexual assault in the theatre
Wigney says the first is conveyed but not the last two.
Updated
Another key legal issue – there are technically three separate publications (known as “matters”) that Rush is suing over:
- A billboard poster that the Daily Telegraph put up with the article’s headline
- The article published on 30 November 2017
- A follow-up article published on 1 December 2017
The judge explains what he means by imputations being “conveyed”.
“The articles did not in terms state that Mr Rush was a ‘pervert’ or behaved as a ‘sexual predator’. The issue is whether the article would nevertheless have conveyed those meanings to the ordinary reasonable reader.”
Updated
Wigney says that this case will focus on the facts before him, the articles and the imputations. He says it is not for the court to “provide some broader statement” about defamation law in Australia, sexual harassment, the #MeToo movement and the issue of sexual harassment in the theatre. But that this can provide a backdrop of community expectations.
Updated
Wigney notes that while the theatre production was well received, in the context of the Weinstein scandal and the #MeToo movement the Daily Telegraph published its “world exclusive”.
“It reproduced the striking if somewhat haunting photo of Mr Rush... as King Lear.” Wigney notes the pun of the headline “King Leer”. “The accompanying story under another pun-laden headline – Bard Behaviour.” “The following day the paper doubled down” with another report about other actors’ allegations.
Updated
“This is a sad and unfortunate case,” Wigney says. “It would have been better for all concerned if the saga... had been allowed to be dealt with in a different way and different place than a harsh and adversarial [setting].”
Wigney enters
Justice Wigney has entered the courtroom and is delivering his judgment now. More to come.
Updated
It’s a cool and blustery day in Sydney, and tense inside courtroom 18C. There are hushed murmurs as people file in and take seats ahead of Justice Wigney’s entrance.
Geoffrey Rush has taken his seat at the bar tables in the courtroom alongside his wife, Jane Menelaus, and he eyes off the rows of media sitting in the jury box.
Norvill, who arrived at court about 10 minutes before Rush, has just walked in with a crowd of supporters. She’s taken her seat in the front row of the seats. Rush talks to Menelaus as Norvill walks past behind him.
Updated
The truth defence
The Daily Telegraph is arguing that the imputations (except the one about Rush falsely denying that the STC told him the identity of the complainant) are true.
In court, it submitted that Rush did a range of things that it alleges constitute being a “sexual predator”, “pervert” and similar, as the imputations say.
If they prove them all true, they will win the case. It’s up to Justice Wigney whether they have – “on the balance of probabilities” – established the imputations as true.
The newspaper claimed:
- In one rehearsal, Rush “hovered his hands” above Norvill’s chest while her eyes were closed and “made groping gestures in the air with two cupped hands intended to simulate groping and fondling breasts”
- Rush “traced across” her breast with his hand
- He put his hand under her shirt on her lower back
- He followed her into a bathroom during a party, and stood outside her cubicle until she told him to “fuck off”
- He sent her a text that said he thought of her “more than is socially appropriate”
Updated
Eryn Jean Norvill has arrived at the federal court, walking past media with her head held high. She didn’t comment.
Geoffrey #Rush arrives at the Federal Court for a decision in his defamation case. @9NewsSyd pic.twitter.com/zh51g6kotf
— Kelly Fedor (@KellyFedor) April 11, 2019
The imputations
Defamation law is all about imputations. These are the negative implications that Rush says the Daily Telegraph’s article conveyed about him.
Rush has listed many imputations that he says the article conveyed:
- That he committed sexual assault while working on the production of King Lear
- That he behaved as a sexual predator while working on the production of King Lear
- Engaged in inappropriate behaviour of a sexual nature during the production
- Inappropriately touched an actress during the production
- That he is a pervert
- That his conduct in inappropriately touching actress during King Lear was so serious that the Sydney Theatre Company would never work with him again
- That he had falsely denied that the STC had told him the identity of the person who had made a complaint against him
- That he engaged in scandalously inappropriate behaviour in the theatre
Today the judge can rule that Rush wins on some of them, or all of them.
Imputations can fail either because they were not conveyed by the article in the first place – or because they were proved true.
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Introduction
One of Australia’s most high-profile defamation cases will have its verdict today.
Geoffrey Rush is suing the Daily Telegraph newspaper over a 2017 article that alleged he inappropriately touched and sexually harassed a co-star during a production of King Lear in 2015 and 2016.
Australian entertainment royalty including Judy Davis, Robyn Nevin and director Neil Armfield have taken the stand to defend Rush. An anonymous, surprise witness known as “Witness X” offered evidence against the actor, but was rejected by the judge.
A three-week trial heard further details of the claims against Rush, and the complainant, Eryn Jean Norvill, told the court that sexual harassment had been “enabled” by more senior members of the entertainment scene.
For a comprehensive recount of the whole process read here.
The verdict will be handed down at 2pm (AEST) today. Stay with us for the news and the reaction.
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