2 July 2020
Geoffrey Rush’s massive ~$2.87 million defamation victory has been affirmed on appeal.
Nationwide News Pty Ltd (Nationwide) appealed Justice Wigney’s April 2019 decision in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 on the basis that the trial judge erred in his findings as to the credibility of the defence’s key witness and that the award of damages made by the trial judge was ‘manifestly excessive’.
During the hearing of the appeal in November 2019, Nationwide abandoned its grounds of appeal that alleged apprehended bias on the part of the trial judge.
Today, in Nationwide News Pty Limited v Rush [2020] FCAFC 115, a Full Court of the Federal Court of Australia comprising Justices White, Gleeson and Wheelahan rejected all of Nationwide’s remaining grounds of appeal.
‘King Leer’
The case relates to the aftermath of Rush’s performances with the Sydney Theatre Company in a 2015–2016 run of Shakespeare’s King Lear. In late 2017, The Daily Telegraph ran a now infamous front-page picture of Rush with the headline, ‘King Leer’. A number of Nationwide publications suggested that Rush engaged in inappropriate behaviour of a sexual nature with respect to his co-stars.
The publications were made during the escalation of the #MeToo movement, where accounts of the inappropriate and sometimes criminal behaviour of powerful men—especially in the entertainment industry—were receiving international media attention.
Rush sued the publisher and the relevant journalist in defamation. Rather than suing in a Supreme Court, he elected to sue in the Federal Court of Australia. This ‘forum shopping’ allowed Rush to avoid the prospect of a trial by jury during a time in which the #MeToo movement could potentially have impacted jurors’ attitudes to a case of this subject matter.
The first-instance decision in Rush (No 7)
After a 15-day trial, Justice Wigney held that Nationwide’s publications conveyed a number of damaging imputations, including that Rush ‘is a pervert’, and behaved ‘as a sexual predator’ while working on the production.
At trial, the only substantive defence relied upon by Nationwide was substantial truth. The burden of proof for such a defence falls on a defendant. So it was up to Nationwide to establish that Rush did engage in the alleged inappropriate sexual conduct, on the balance of probabilities. This meant that Nationwide had to lead evidence from the female complainant, actress Erin Jean Norvill—the ‘survivor’ of the alleged abuse—requiring her to testify as to what occurred at trial, despite not have leaked the story herself. Notably, the trial judge had also found that Nationwide had not even spoken with Ms Norvill about the alleged abuse before going to print with its stories.
Nationwide failed in its defence of substantial truth; Justice Wigney held that Rush had established that the publications were defamatory.
Rush had sought general damages for non-economic loss, including damages for personal distress, together with special damages for past economic loss and future economic loss. He was stunningly successful. Rush was awarded damages totalling $2,872,753.10 comprised of the following:
- non economic loss including aggravated damages – $850,000;
- past economic loss including pre judgment interest – $1,060,773;
- future economic loss – $919,678; and
- pre judgment interest on the non economic loss – $42,302.10.
Key to the decision on damages was Nationwide’s aggravating conduct. Justice Wigney described the publications as ‘reckless as to the truth or falsity of the imputations they conveyed’ and a ‘recklessly irresponsible piece of journalism’. Accordingly, the statutory cap on damages for non-economic loss was inapplicable.
Since judgment there have been a number of skirmishes between the parties including unsuccessful applications for a permanent injunction to prevent further publications and to recuse the trial judge. For Nationwide, much rested on its appeal of Justice Wigney’s decision in Rush (No 7).
The Full Court’s decision in July 2020
Nationwide took a scattershot approach to challenging the trial judgment. It asserted 20 grounds of appeal, some of which were later abandoned. There were four themes to the remaining grounds of appeal:
- A challenge to how Justice Wigney conducted the trial, including that his Honour’s conduct ought to have recused himself on the basis of a reasonable apprehension of bias; and that Nationwide was otherwise denied procedural fairness;
- That the judge erred in finding the imputation that Rush ‘is a pervert’ was conveyed by the publication;
- That the judge erred in rejecting the justification defence; and
- That the judge erred in relation to damages.
The first theme did not get very far. Nationwide dropped the apprehended bias point on the first day of the appeal. Arguing apprehended bias at the end of a judicial proceeding is an extreme move. In this case, Nationwide elected not to press the ground of appeal when its counsel, Tom Blackburn SC, was advised by the Court that if that ground was being pressed it would be considered first by the Court – before all other grounds of appeal.
As for the second theme, the ‘pervert’ imputation, the Full Court affirmed that the trial judge was correct to hold that the imputation was conveyed by the publications. The reasons contain timely reflections on the power dynamics underlying #MeToo allegations:
[W]e agree with the Judge that the ordinary reasonable reader is likely to consider a person who engaged in the conduct conveyed by the publications to be a “pervert”, particularly in so far as it concerned behaving as a sexual predator, and a man’s use of authority or stature in the workplace to obtain sexual gratification by inappropriately touching a non-consenting co-worker. On the Judge’s unchallenged findings, the relevant publications went well beyond suggesting that Mr Rush had “perved” on Ms Norvill.
The justification defence
The Full Court’s disposition of the justification defence may be the most contentious part of this judgment. The Full Court was asked to consider the discrepancies in evidence and other statements made by Ms Norvill, and the significance of Justice Wigney’s finding that some of her evidence was not credible or reliable. It affirmed the holding that Nationwide had not proved substantial truth to make out a justification defence.
Among other things, the Full Court referred to the fact that Ms Norvill was pleasant to Rush in various public and private interactions following the alleged incidents. This conduct was held out as probative of her being less than credible as to the substantive allegations regarding Rush’s behaviour. Against that, it is also well understood that speaking out forcefully is not always easy when a person is harassed or abused in the workplace by someone who is senior to them, and also highly respected, as was the case with Rush. When the power dynamic is as pronounced as it was for Rush and Ms Norvill, the reality may be that sometimes ‘being nice’ to an alleged ‘pervert’ is the smart (or certainly, least traumatic) thing for some women to do. We wish that were not the case; as society progresses, it will soon no longer be the case.
The Full Court accepted Nationwide’s argument that Justice Wigney should not have placed too much emphasis on Ms Norvill’s statements about Rush in promotions for the play. But overall, it held that Justice Wigney did not make an error in his overall disposition to Ms Norvill’s credibility.
Damages
On damages, the Full Court affirmed the trial judge’s approach on all fronts.
The Full Court affirmed that when calculating aggravated damages, the court should provide a single sum for all non-economic loss. This approach—with which we respectfully agree—runs contrary to some cases, and contrary to proposed amendments to the Model Defamation Provisions underpinning Australia’s Uniform Defamation Acts.
The damages for non-economic loss were not ‘manifestly excessive’. They were massive, but commensurate to the damage, hurt and distress suffered by Rush, factoring into account Nationwide’s conduct. The Full Court agreed with Justice Wigney that Nationwide has ‘made a calculated, public attack on Mr Rush of a most serious kind’, warranting a very large award for non-economic loss including aggravated damage. The statutory cap on damages for non-economic loss did not apply.
As for special damages, Rush succeeded in relation to both actual lost income and loss of future earnings. What distinguished Rush’s case from that of Rebel Wilson, where the Victorian Court of Appeal overturned an award of special damages for loss of potential earnings, was that Rush was able to lead cogent evidence of his losses. This was not some pie-in-the-sky prospect of money that Rush had lost. He was Australia’s top actor; the publications caused millions of dollars’ worth of actual damage. Accordingly, the special damages award was significant.
What to make of this in the #MeToo era
The Full Court’s decision contains an orthodox application of defamation law principles. As a matter of law, the application of those principles was not particularly ground-breaking or concerning. But as a matter of policy, there may be some reason for comment.
Sexual harassment in any workplace cannot be tolerated. When it occurs, we should speak up. But defamation law may create a chilling effect on witnesses blowing the whistle. If Ms Norvill had known that she would be subjected to such media scrutiny—and cross-examination—for making a private complaint of misconduct to her employer, would she have said anything?
Perhaps reporting of sexual misconduct within the workplace should be protected in the public interest. Indeed, defences like qualified privilege, and a proposed new public interest defence within the Uniform Defamation Acts, may protect that reporting. But these defences turn on proportionality and reasonableness.
It was not the reporting by Nationwide of the #MeToo allegations that landed it in trouble. It was the way it went about it. Remember, Nationwide did not even speak to Ms Norvill before publishing the stories that prompted Rush to take against it. Sensationalist, ‘gotcha’ journalism is risky—Nationwide have paid enough defamation damages awards to know this well. Had Nationwide toned it down, only published facts, and practised quality journalism, it may have succeeded in a defence.
Defamation law and the protection of survivors via the #MeToo movement are not irreconcilable. They are in tension. But the tension can be ameliorated by quality, careful journalism.
Provided there is a cogent empirical underpinning to a statement of fact, there is no need to wait for a finding of criminal guilt before the media, or anyone else, can call out bad behaviour. Indeed, if the Chief Justice of the High Court of Australia was comfortable calling out Dyson Heydon’s behaviour before a criminal trial, then there is obviously space for cultural reform within the current framework of defamation law.
A final word from Shakespeare
Act 2 Scene 2 of King Lear contains the following character attack:
A knave; a rascal; an eater of broken meats; a base, proud, shallow, beggarly, three-suited, hundred-pound, filthy, worsted-stocking knave; a lily-livered, action-taking knave, a whoreson, glass-gazing, super-serviceable finical rogue; one-trunk-inheriting slave; one that wouldst be a bawd, in way of good service, and art nothing but the composition of a knave, beggar, coward, pandar, and the son and heir of a mongrel bitch: one whom I will beat into clamorous whining, if thou deniest the last syllable of thy addition.
These days, you can’t say or imply such things in the newspaper without extreme risk. That is probably a good thing. Newscorp: take note.
Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.
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