Talks between a lawyer for “witness X” and Geoffrey Rush’s lawyer during the actor’s recent defamation claim against The Daily Telegraph concerned a possible claim against the Oscar winner, the judge who heard the case said on Monday.
“Witness X” emerged after the first week of the recent 15-day hearing in the Federal Court offering to give evidence for the Telegraph.
However, Justice Michael Wigney rejected the paper’s bid to amend its truth defence based on an 85-page affidavit, saying it would be unfair to Mr Rush.
In reasons published on Monday, Justice Wigney noted it was Mr Rush’s case that “it was Witness X, through her solicitor, who was bringing improper pressure to bear on him”.
The judge said talks involving a court registrar, Mr Rush’s solicitor Nicholas Pullen and Ms X’s solicitor – Leon Zwier of Melbourne firm Arnold Bloch Leibler, who acted for both Mr Rush’s accuser Eryn Jean Norvill and Witness X – were “rather unusual”.
“The discussions did not appear to directly relate to the potential resolution of this proceeding. Rather, they appeared to concern the resolution of a case that Witness X might perhaps commence, based on her allegations, though Witness X’s solicitor undoubtedly made some statements concerning the future course of these proceedings.
“Some of those statements, at least at first blush, are somewhat troubling and could provide some support for Mr Rush’s contention that improper pressure was being exerted upon him.”
However, the judge found there was not “sufficient evidence to support a finding of abuse of process, or abuse of power, or contempt of court by Witness X, her solicitor, or anyone else”.
He also said it was “perhaps questionable whether the evidence, if accepted, would necessarily establish the general imputation that Mr Rush is a pervert”.
Mr Rush sued News Corp, publisher of the Telegraph, over a poster and two articles in November-December 2017 which said the Sydney Theatre Company had received a complaint about his “inappropriate behaviour” towards a cast member – later identified as Ms Norvill – during a 2015-16 production of King Lear. Ms Norvill played Cordelia, the daughter of Mr Rush’s titular character.
Mr Rush says the articles accused him of being a “pervert, a sexual predator and of inappropriate behaviour of a sexual nature”.
When he made his ruling on Witness X during the trial, Justice Wigney said she was free to air her “sexual” allegations in public, provided she does not reveal her connection with the case.
In Monday’s 35-page judgment, Justice Wigney also outlined the attempts by the Telegraph to contact Witness X since soon after they published their stories about Mr Rush.
“Those attempts were unsuccessful. Further attempts were made during 2018. They were equally unsuccessful. It would appear that witness X only decided to engage with Nationwide and Mr Moran after she had seen some media reports of evidence during the trial and then retained a solicitor. That solicitor happened to be Ms Norvill’s solicitor, though it could scarcely be accepted that that was a pure coincidence.”
The judge also hinted that had he granted the application Ms X would have been required to give evidence in person. He said he was far from satisfied that the paper had “made out a compelling or persuasive case for why witness X’s evidence should be given by video link”.
He said “the history of the litigation, the lateness of the amendment application, the delay which will be caused by the amendment, the resultant bifurcation of the trial, and the egregious prejudice that would inevitably be suffered by Mr Rush if the amendment application was allowed and witness X was permitted to give evidence” were all factors that weighed against the Telegraph’s application.
Justice Wigney has said he expects to deliver his judgment early in 2019.