FEDERAL COURT OF AUSTRALIA

Nationwide News Pty Limited v Rush [2020] FCAFC 115

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    On or before 10 July 2020 the legal practitioners for the parties confer in relation to the question of costs of the appeal, and the form of orders as to costs that the Court should make.

3.    On or before 17 July 2020 the parties file and serve any submissions as to costs, not to exceed three pages.

4.    On or before 24 July 2020 the parties file and serve any submissions as to costs in reply, not to exceed three pages.

5.    If the parties at any relevant point file an agreed note as to costs, further compliance with Orders 2 to 4 above is dispensed with.

6.    Subject to any further order, the question of costs shall be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    Between 28 November 2015 and 9 January 2016, the Sydney Theatre Company (STC) performed the Shakespearean tragedy King Lear at the Roslyn Packer Theatre in Sydney. The respondent to the appeal, Mr Rush, who is a well-known actor, played the role of King Lear. Ms Erin Jean Norvill played the role of Cordelia.

2    Just under two years later, the first appellant, Nationwide News Pty Limited (Nationwide News), published three matters concerning Mr Rush’s conduct during the STC production of King Lear. Two of the publications were editions of The Daily Telegraph newspaper and the third a billboard poster. The second appellant, Mr Moran, was the author of the articles concerning Mr Rush in the two editions of The Daily Telegraph. Although none of these publications mentioned Ms Norvill, it later became apparent that they had been prepared with reference to conduct of Mr Rush said to have been reported by Ms Norvill.

3    The primary Judge found that the three publications were seriously defamatory of Mr Rush (Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496) and, by orders made on 11 April, 10 May and 23 May 2019, awarded him damages including interest, totalling $2,872,753.10.

4    The appellants now appeal against that judgment. Their grounds of appeal are multiple: three complain of aspects of the conduct of the trial and, initially, included an allegation of apprehended bias; one complained of the finding that the publications conveyed one of the pleaded imputations; four complained of the Judge’s rejection of the defence of justification (which was the appellants’ sole substantive defence); and eight concerned aspects of the award of damages.

5    During the hearing of the appeal, the appellants wholly abandoned their grounds of appeal alleging apprehended bias.

6    We consider that all of the remaining grounds of appeal fail and that the appeal must be dismissed. Our reasons follow.

The publications

7    The poster (the first impugned matter) was published on 30 November 2017 and, in large bold font, promoted the edition of “The Daily Telegraph” published that same day:

8    The poster is reproduced in Annexure A to these reasons.

9    The second publication was the edition of The Daily Telegraph on 30 November 2017 (the second impugned matter). On its front page, it featured a large photograph of a bewildered looking Mr Rush dressed as King Lear with the title “KING LEER”. The heading to the accompanying article on the front page, under the photograph of Mr Rush, was “WORLD EXCLUSIVE Oscar-winner Rush denies ‘inappropriate behaviour’ during Sydney stage show”. The article reported that Mr Rush had been accused of “inappropriate behaviour” during the STC production of King Lear, and reported that Mr Rush denied the truth of the allegations.

10    The text of the article on the front page of The Daily Telegraph on 30 November 2017 was as follows:

OSCAR winning Australian actor Geoffrey Rush has been accused of “inappropriate behaviour” during Sydney Theatre Company’s recent production of King Lear.

However, Rush – through his lawyers – last night vigorously denied the claims. The Sydney Theatre Company told The Daily Telegraph it “received a complaint alleging that Mr Geoffrey Rush had engaged in inappropriate behaviour”. “The Company received the complaint when Mr Rush’s engagement with the Company had ended,” it said. “The Company continues to work with the complainant to minimise the risk of future instances of the alleged behaviour occurring in its workplace.”

Mr Rush’s lawyers said he had “not been approached by the Sydney Theatre Company, the alleged complainant nor any representative of either”. “Further, he has not been informed by them of the nature of the complaint and what it involves,” a statement from HWL Ebsworth Lawyers said.

“If such a statement has been issued by the STC it is both irresponsible and highly damaging.”

11    The front page of The Daily Telegraph published on 30 November 2017 is reproduced as Annexure B to these reasons.

12    Pages four and five of the same edition of The Daily Telegraph contained a two page spread concerning Mr Rush. These pages had at their head an overline in white against a red background stating “Oscar-winner Geoffrey Rush denies complaint made in Sydney Theatre Shakespeare production”. Page four had a large bold headline “STAR’S BARD BEHAVIOUR”. An article concerning Mr Don Burke, who had been accused, amongst other things, of being a “sexual predator”, was printed on page five immediately adjacent to the article concerning Mr Rush.

13    The text of the article on pages 4 and 5 concerning Mr Rush was as follows:

OSCAR-winning Australian actor Geoffrey Rush has been accused of “inappropriate behaviour” during the Sydney Theatre Company’s recent production of King Lear.

But the star vigorously denies the allegations and says the company has never told him of any allegations of wrong doing.

The Daily Telegraph can today reveal that one of the country’s most successful actors was the subject of a complaint during the production of King Lear.

It is understood the allegations of inappropriate behaviour occurred over several months. The local production of the classic William Shakespeare play ran from November 2015 to January 2016 at the Roslyn Packer Theatre.

There were also several months of rehearsals.

“Sydney Theatre Company received a complaint alleging that Mr Geoffrey Rush had engaged in inappropriate behaviour,” a spokeswoman said to The Daily Telegraph.

“The Company received the complaint when Mr Rush’s engagement with the Company had ended. The Company continues to work with the complainant to minimise the risk of future instances of the alleged behaviour occurring in its workplace.

“The complainant has requested that their identity be withheld.

“STC respects that request and for privacy reasons, will not be making any further comments.”

In a strongly worded legal letter, lawyers for Rush at HWL Ebsworth last night said he had never been involved in any “inappropriate behaviour” and that his “regard, actions and treatment of all the people he has worked with has been impeccable beyond reproach.

“Mr Rush has not been approached by the Sydney Theatre Company and the alleged complainant nor any representative of either of them concerning the matter you have raised,” the letter states.

“Further, he has not been informed by them of the nature of the complaint and what it involves.”

The letter from the legal firm’s partner Nicholas Pullen goes on to say that Rush has not been involved with the Sydney Theatre Company or its representatives for a period of more than 22 months.

“In the circumstances, if such a statement has been issued by the STC it is both irresponsible and highly damaging to say the least.

“Your ‘understanding’ of what has occurred is, with the greatest respect, simply fishing and unfounded.

“It does not warrant comment except that it is false and untrue.”

Rush has worked with the STC many times – both acting and directing productions like Uncle Vanya, Oleanna, The Importance of Being Ernest, You Can’t Take It With You, King Lear and The Government Inspector.

Rush won the Academy Award for Best Actor in 1996 for his role as David Helfgott in the movie Shine and was nominated for the best supporting actor role two years later for Shakespeare in Love.

His other Oscar nominations include best actor in 2000 film Quills and for The King’s Speech in 2011 in the same category.

He has found fame for becoming one of the few people to have won acting’s “Triple Crown” – the Academy Award, the Primetime Emmy Award and the Tony Award.

The 66-year-old married father-of-two and Melbourne resident is also the president of the Australian Academy of Cinema Television and Arts and is expected to attend the annual AACTA Awards at The Star Event Centre next week.

14    Pages 4 and 5 of the second impugned matter are reproduced as Annexure C to these reasons.

15    The third publication was the edition of The Daily Telegraph of 1 December 2017 (the third impugned matter). Under the front page heading “WE’RE WITH YOU”, The Daily Telegraph reported that two STC actors had spoken in support of the then unnamed actress who had accused Mr Rush of touching her inappropriately during the production of King Lear. The full text of the article on page 1 of the 1 December 2017 edition was as follows:

TWO Sydney Theatre Company actors yesterday spoke out in support of the actress who has accused Oscar winner Geoffrey Rush of touching her inappropriately during the stage production of King Lear.

Rush – one of Australia’s biggest stars – was yesterday continuing to vehemently deny the claims.

Meyne Raoul Wyatt, who also appeared in King Lear, said he believed the allegations. “I believe (the person who) has come forward. It’s time for Sydney Theatre Company and the Industry in Australia and worldwide as a whole to make a stand,” Wyatt said.

And Brandon McClelland, who has worked alongside the actress, urged others to believe the complaints. “It wasn’t a misunderstanding,” he said.

Two STC sources said the company stood by her claims. Both said the company wouldn’t work with Rush again. Despite denials, Rush was told who made the claims in a phone call with executive director Patrick McIntyre weeks ago. Mr McIntyre last night said the STC had “reviewed policies” about “inappropriate behaviour”.

16    Pages four and five of The Daily Telegraph edition on 1 December 2017 also comprised a double page spread of articles relating to Mr Rush. Each article was written by Mr Moran. The first article had the heading “HR overhaul to lift curtain on bad deeds”. The text of that article was as follows:

THE Sydney Theatre Company has revised its HR policies in a bid to ensure it maintains a safe environment for staff.

Executive director of the STC Patrick McIntyre (below) said it was important actors feel safe to speak up and believes maintenance of confidentiality to be key.

“We have reviewed policies and procedures in place and that includes educating actors when they come in to the company about our intolerance of inappropriate behaviour, who they should speak to and encouraging them to speak up,” Mr McIntyre said.

Mr McIntyre’s comments come after the STC confirmed it had received a complaint by a staff member over allegations of “inappropriate behaviour” by Oscar winner Geoffrey Rush. Rush vehemently denies any wrongdoing.

Mr McIntyre stressed that he and the executive team at the theatre company have a duty of care to ensure all staff feel safe and respected in the workplace.

“This isn’t about creating drama and blame but if everyone holds each other accountable, we create the kind of workplace we all want to be in,” he said. More broadly, Mr McIntyre suggested it is a wideranging issue for the industry to address in the wake of the Harvey Weinstein scandal.

“Many still view that speaking up comes with adverse repercussions,” he explained.

“This is a trust issue that the industry needs to work towards resolving and the observance of confidentiality is key to this. If people don’t trust us with their stories, they won’t speak up.”

The HR overhaul follows preliminary findings of an Actors Equity survey aimed at theatre actors which found that 40 per cent of respondents claimed they had directly experienced sexual harassment, bullying or misconduct.

Oscar winner Kevin Spacey became embroiled in the ongoing controversy rocking the entertainment industry with numerous victims coming forward – including 20 complaints from his time as artistic director at London’s Old Vic Theatre between 2004 and 2015.

A law firm’s investigation into allegations about Spacey stated: “Despite having the appropriate escalation processes in place, it was claimed that those affected felt unable to raise concerns and that Spacey operated without sufficient accountability.”

17    A second article under the heading “ACTS OF DEFIANCE” referred to the support provided by two actors who had worked with the actress making accusations against Mr Rush. The full text of that article is as follows:

TWO actors who work with the Sydney Theatre Company yesterday publicly threw their support behind the actress who has accused Oscar-winner Geoffrey Rush of touching her inappropriately during the stage production of King Lear.

It comes as Rush – one of the country’s most successful actors – was yesterday continuing to vehemently deny claims he inappropriately touched a cast member of the local production of the classic William Shakespeare play.

Rising young actor Meyne Raoul Wyatt, who appeared in King Lear, said he believed his castmate’s version of events.

“I was in the show,” Wyatt, who has also starred in Neighbours and Redfern Now, wrote on Facebook yesterday after The Daily Telegraph broke the story.

“I believe (the person who) has come forward. It’s time for Sydney Theatre Company and the industry in Australia and worldwide as a whole to make a stand on this behaviour!!!!”

And Brandon McClelland, who has worked alongside the woman at the centre of the alleged complaint and is in the company’s current production of Three Sisters, urged others on Twitter to believe the actress.

“It wasn’t a misunderstanding. It wasn’t a joke,” he posted.

McClelland’s tweet was also reposted by several other Sydney theatre actors as the story dominated social media yesterday.

The STC production of King Lear ran from November 2015 to January 2016.

The 66-year-old acting legend yesterday said he “immediately phoned and spoke to senior management” at the STC when he became aware of rumours there was a complaint.

But he said the STC refused to give him any details.

“They refused to illuminate me,” he said through a statement.

“I also asked why this information was being withheld, and why, according to standard theatre practice, the issue had not been raised with me during the production via stage management, the director, my fellow actors or anyone at management level.

“However, no response was forthcoming.”

Rush’s lawyer Nicholas Pullen said it was a “great disappointment” that the STC had “chosen to smear his name and unjustifiably damage his reputation”.

“Not to afford a person their right to know what has been alleged against them, let alone not inform them of it but release such information to the public, is both a denial of natural justice and is not how our society operates,” he said.

The actor’s lawyer, a partner in legal firm HWL Ebsworth, said Rush “abhorred any form of maltreatment of any person”.

“Until there is the decency afforded to Mr Rush of what the ‘inappropriate behaviour’ actually is then there is nothing more that can be said at this stage.” Mr Pullen said.

Two sources who spoke to The Daily Telegraph yesterday said Rush was made aware who made the claims in a conversation with executive director Patrick McIntyre three weeks ago.

The sources said they believed the woman’s claims.

And they said the STC would not be working with Rush again. That’s despite the veteran actor having worked with the company both acting and directing productions such as Uncle Vanya, Oleanna, The Importance Of Being Ernest and The Government Inspector.

A new statement from the STC yesterday said it had responded “truthfully” after being approached by The Daily Telegraph earlier this week.

It also clarified the anonymous nature of the alleged complainant, who had “requested the matter be dealt with confidentially, and did not want Mr Rush notified”.

“STC complied, acting in the interest of the complainant’s health and welfare.” Mr McIntyre last night said the STC had “reviewed policies and procedures” including “educating actors when they come in to the company about our intolerance of inappropriate behaviour, who they should speak to and encouraging them to speak up”.

18    A third article appeared under the heading “Statement for acting veteran blasts STC ‘smear’”. Its full text was as follows:

MANAGEMENT for Oscar-winning actor Geoffrey Rush issued a comprehensive statement yesterday denying allegations of “inappropriate behaviour” during the 66-year-old veteran actor’s time with the Sydney Theatre Company’s production of King Lear.

The statement, following The Daily Telegraph’s exclusive report yesterday, took aim at the Sydney Theatre Company, alleging that it had “chosen to smear his name and unjustifiably damage his reputation”.

It also claimed that: “His treatment of fellow colleagues and everyone he has worked with is always conducted with respect and the utmost propriety.

“The allegation made against Mr Rush comes from a statement provided by the Sydney Theatre Company,” it reads.

The widely released document says it is understood that the STC’s own statement concerns a complaint made to it more than 21 months ago.

“To date, Mr Rush or any of his representatives have not received any representations from the STC or the complainant.

“In other words, there has been no provision of any details, circumstances, allegations or events that can be meaningfully responded to.”

It goes on to quote Mr Rush:

“The moment I became aware of rumours of a complaint I immediately phoned and spoke to senior management at the Sydney Theatre Company asking for clarification about the details of the statement.

“They refused to illuminate me with the details.”

The statement then says Mr Rush can only reiterate that he denies being involved in any “inappropriate behaviour” whatsoever.

19    A fourth article had the heading “THEATRE’S FIRM STATE OF PLAY”. The text of that article was as follows:

THE Sydney Theatre Company yesterday confirmed it responded “truthfully” when asked if it had received a complaint alleging inappropriate behaviour by leading Australian actor Geoffrey Rush.

In an updated statement, the STC said it “was asked by a News Ltd journalist earlier this month whether it had received a complaint alleging inappropriate behaviour by Mr Rush while he was employed by the company. STC responded truthfully that it had received such a complaint.”

It also clarified the alleged complainant had “requested the matter be dealt with confidentially, and did not want Mr Rush notified or involved” in any inquiry.

“STC complied, acting in the interest of the complainant’s health and welfare. As already stated, the Company received the complaint after Mr Rush’s engagement had ended.”

20    The final article appeared under the heading “Execs’ exile for star”. The text of that article was as follows:

EXECUTIVES at the Sydney Theatre Company yesterday came forward in support of the woman at the heart of the Geoffrey Rush scandal, saying they wholeheartedly believe her claims.

They also said due to the seriousness of the allegations, the award-winning theatre company would not work with the Pirates of the Caribbean star again. “There is no chance,” the source told The Daily Telegraph. “How could we work with him again? That question doesn’t even need an answer.”

The executive added: “Another actor backed what she said … we’ve taken this very seriously.”

The source also defended not naming the woman, saying: “It is not our story to tell.”

A high-profile actor, who did not want to be named, came forward to support the woman.

21    The two page spread contained five photographs of Mr Rush.

22    Pages 4 and 5 of the 1 December 2017 edition of The Daily Telegraph are reproduced in Annexure D to these reasons.

23    In the weeks preceding 30 November 2017, the events which gave rise to the #MeToo movement had occurred. The Hollywood film producer, Harvey Weinstein had been portrayed in public and social media as a sexual predator who had committed acts of sexual assault and/or sexual harassment. The Hollywood actor Kevin Spacey had also been portrayed as a sexual predator who had committed acts of sexual assault and/or sexual harassment. Those events formed part of the context on which Mr Rush relied in alleging that he had been defamed.

The STC production of King Lear

24    The STC production of King Lear was directed by the well-known theatre director, Mr Neil Armfield AO. The Judge accepted that Mr Armfield is a close colleague and friend of Mr Rush.

25    As already indicated, Mr Rush played the lead role of King Lear and Ms Norvill played the role of Cordelia, one of King Lear’s three daughters.

26    Ms Helen Buday played the role of Goneril, the eldest of King Lear’s daughters. Ms Helen Thomson played the role of Regan, the third of King Lear’s daughters.

27    Ms Robyn Nevin AM played the role of the Fool.

28    Mr Max Cullen played the role of the Earl of Gloucester, Mr Alan Dukes the role of the Duke of Albany, Mr Nick Masters the role of the Duke of Burgundy, Mr Colin Moody the role of the Duke of Cornwall, and Mr Jacek Koman the role of the Earl of Kent.

29    Mr Mark Winter played the role of Edgar, the Earl of Gloucester’s legitimate son. Mr Meyne Wyatt played the role of Edmund, the main antagonist in the play and illegitimate son of the Earl of Gloucester. Mr Wade Briggs played the role of Oswald and Mr Eugene Gilfedder played the Knight and messenger. Mr Simon Barker and Mr Phillip Slater played the role of two musicians. The Judge found that, in addition to this cast of 14, a large number of other people were directly involved in one way or another in the production. The total number involved in the production was of the order of 45.

30    The STC commenced rehearsals for the performance on 12 October 2015. Four preview performances of the play were presented before full audiences between 24 and 27 November 2015. As indicated, the STC presented its production of King Lear between 28 November 2015 and 9 January 2016, both dates inclusive.

31    The final scene in King Lear involves Lear grieving over the body of Cordelia who has been killed by Edmund’s betrayal. In the STC production, Mr Rush carried Cordelia’s body (Ms Norvill) on stage from a position just off stage, lay her on the floor and then, while engaged in dialogue with Mr Dukes, mourned over her body. This involved Mr Rush touching Ms Norvill. Much of the evidence on which the appellants relied for the defence of justification concerned the conduct of Mr Rush which was said to have occurred in the rehearsals for, and the performance of, this final scene.

The findings of the primary Judge

32    The trial of the action occupied some 15 days. In addition to his own evidence, Mr Rush led evidence from Mr Armfield, Ms Nevin, Ms Buday, Mr Fred Schepisi AO (the film director), Mr Fred Specktor (Mr Rush’s American agent), Ms Robyn Russell (an American media attorney), Mr Michael Potter (a forensic accountant) as well as seven other “reputation” witnesses, including his wife Ms Jane Menelaus, who gave evidence of Mr Rush’s reputation and of their observations of him. The appellants led evidence from Ms Norvill, Mr Winter, Mr Richard Marks (an American media attorney) and from Mr Tony Samuel (a forensic accountant).

33    The Judge found that each of the three publications conveyed imputations which were defamatory of Mr Rush.

34    In relation to the billboard poster, the Judge found that it conveyed the imputation that Mr Rush had engaged in scandalously inappropriate behaviour in the theatre, at [217]. Although the appellants had denied on their pleadings that the poster did convey this meaning, they accepted at the trial that this imputation had been conveyed to the ordinary reasonable reader, at [115].

35    The Judge found that the articles published on 30 November 2017 conveyed the following imputations, at [61] and [218]:

 (a)    that Mr Rush is a pervert;

(b)    that Mr Rush behaved as a sexual predator while working on the STC’s production of King Lear;

(c)    that Mr Rush engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear; and

(d)    that Mr Rush, a famous actor, engaged in inappropriate behaviour against another person over several months while working on the STC’s production of King Lear.

36    The Judge found that the articles published on 1 December 2017 conveyed the following imputations, at [64] and [219]:

(a)    Mr Rush had committed sexual assault while working on the STC’s production of King Lear;

(b)    Mr Rush behaved as a sexual predator while working on the STC’s production of King Lear;

(c)    Mr Rush engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear;

(d)    Mr Rush had inappropriately touched an actress while working on the STC’s production of King Lear;

 (e)    Mr Rush is a pervert;

(f)    Mr Rush’s conduct in inappropriately touching an actress during King Lear was so serious that the STC would never work with him again; and

(g)    Mr Rush had falsely denied that the STC had told him the identity of the person who had made a complaint against him.

37    With one or two exceptions, the appellants had denied at trial that either of the second or third impugned matters had conveyed the above imputations but, as indicated, that part of their defence was not successful. The appellants appeal against only one aspect of these findings of the Judge, namely, the finding that the second and third impugned matters conveyed the imputation that “the applicant is a pervert”.

38    The only substantive defence of the appellants at trial was the claim that all but one of the imputations alleged by Mr Rush were substantially true. They alleged that he had in fact engaged in scandalously inappropriate behaviour 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.

39    These contentions were based on claims that Mr Rush had, during the STC 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 her 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.

40    The Judge found that the appellants had not proved on the balance of probabilities the substantial truth of any of the imputations conveyed by the appellants’ publications and, accordingly, that their defence of justification failed. It followed that Mr Rush was entitled to an award of damages.

41    The Judge found that Mr Rush had an “exemplary reputation” prior to the appellants’ publications. The evidence of several witnesses called by Mr Rush supported that conclusion.

42    The Judge considered that the damage to Mr Rush’s reputation both in Australia and internationally had been substantial. His Honour considered that Mr Rush was entitled to a substantial award by way of compensatory damages, including aggravated damages. The Judge held that the assessment of the damages to which Mr Rush was entitled should take account of the circumstances in which the appellants had published the impugned matters as well as their conduct occurring thereafter. His Honour also considered that the cap on the amount which could be awarded for non-economic loss pursuant to s 35 of the Defamation Act 2005 (NSW) was inapplicable, having regard to s 35(2). In the application of s 35(1) and (2), the Judge followed the decision of the Court of Appeal in Victoria in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; 56 VR 674 (Bauer Media).

43    The Judge awarded Mr Rush damages totalling $2,872,753.10 as follows:

    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.

The Further Amended Notice of Appeal

44    The appellants’ Further Amended Notice of Appeal (FANA) filed on 5 July 2019 contained 20 grounds. Before the hearing of the appeal, the appellants abandoned Ground 20 and indicated that Ground 6 should be regarded as a particular of Ground 5. That meant that, at the commencement of the appeal hearing, the appellants were pursuing 18 grounds of appeal.

45    Those 18 grounds are in four categories:

(a)    grounds concerning the Judge’s conduct of the trial (Grounds 1-5 and 7). These grounds include complaints that aspects of the conduct of the Judge during the trial gave rise to an apprehension of bias (Grounds 1-4), that by reason of seven matters, the Judge had denied the appellants procedural fairness (Ground 5), and that the Judge had erred in disallowing, on the 12th day of the trial, the application by the appellants to amend their defence so as to plead further matters of justification (Ground 7);

(b)    the finding that the imputation that “the applicant is a pervert” had been conveyed by the second and third impugned matters (Ground 8);

(c)    the rejection of the appellants’ defence of justification (Grounds 9-12); and

(d)    the damages awards (Grounds 13-19).

46    The relief sought by the appellants in the FANA was the allowing of the appeal, the setting aside of the Judge’s orders giving effect to his award of damages and the entry of judgment in their favour. In the alternative, the appellants sought the remittal of the proceedings for retrial before a different Judge, together with the setting aside of three interlocutory orders made by the Judge which had been adverse to the appellants. During the course of the appeal hearing, the appellants’ position with respect to the relief they sought in the event that the appeal was successful in whole or in part, was modified.

The apprehension of bias grounds

47    It is appropriate to record some matters concerning the appellants’ claims of an apprehension of bias by the Judge, even though these claims were wholly abandoned by them during the afternoon of the first day of the two day appeal hearing.

48    Prior to the delivery of judgment on 11 April 2019 (which contained the award of $850,000 for non-economic loss and indicated the basis on which the awards for past and future economic loss should be computed), the appellants had not made any application that the Judge should recuse himself on the grounds of an apprehension of bias. On delivering judgment, the Judge listed a case management hearing for 10 May 2019. His Honour’s intended purpose in doing so was to hear from the parties concerning orders in relation to the filing of further evidence and submissions in respect of the assessment of the damages for economic loss and further submissions in relation to injunctive relief, costs and interest.

49    At the hearing on 10 May 2019, the appellants made an oral submission that the Judge should recuse himself from considering any further contested matters in the proceedings, in particular, Mr Rush’s application for further injunctive relief. The Judge then listed the appellants’ oral application for recusal and Mr Rush’s application for permanent injunctions for hearing on 20 May 2019. At the request of the parties, the hearing on that day was adjourned to 23 May 2019.

50    By 23 May 2019, the appellants had presented the Judge with the form of an interlocutory application seeking an order that he recuse himself from further determining the proceedings. His Honour granted the appellants leave to file the application and the hearing proceeded on the basis that they would do so. However, the application was not filed. At the conclusion of the submissions concerning the claimed apprehended bias, the Judge refused to recuse himself and said that he would publish reasons later. His Honour’s formal order on 23 May 2019 was that the “interlocutory application filed by the respondents dated 23 May 2019 seeking an order that his Honour Justice Wigney recuse himself from further determining the proceedings is dismissed”. Plainly, his Honour made the order in those terms in the belief that the appellants had exercised the leave granted to them. The Judge then determined the outstanding issues and made orders awarding Mr Rush damages for past and future economic loss, as well as orders concerning other matters, which it is not necessary to detail presently.

51    The first Notice of Appeal, which included four grounds alleging apprehended bias, was filed by the appellants on 1 May 2019. An Amended Notice of Appeal was filed on 7 June 2019 and the FANA was filed on 5 July 2019. Apart from two particulars which were abandoned, the effect of the amendments filed on 7 June and 5 July 2019 was, amongst other things, to enlarge the matters on which the appellants relied for their claims of apprehended bias.

52    An allegation of bias by a judge, whether actual or apprehended, is a serious matter. It should not be made lightly. In defamation proceedings in which an applicant is successful, special care should be exercised before such allegations are made. That is because claims of apprehended bias go to the very integrity of the trial process and are accordingly likely to undermine in the eyes of the public the vindication of the applicant’s reputation which the judgment represents. Junior counsel for Mr Rush drew attention to this effect on 10 May 2019 when the appellants first made their oral application that the Judge recuse himself.

53    The appellants’ intention to pursue claims of apprehended bias on the appeal was confirmed in the summary of submissions filed on 23 September 2019 in anticipation of the appeal hearing, by the appellants’ request that the Court listen to tapes of statements made by the Judge during the trial, and by the appellants’ senior counsel at the commencement of the appeal hearing.

54    At the appeal hearing, the Court drew the appellants’ attention to passages in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577. Kirby and Crennan JJ (with whom Gummow ACJ agreed on this point) said:

[117]    … An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias.

(Emphasis added)

55    It was apparent that the adoption of the approach stated by Kirby and Crennan JJ would cause the Court some difficulty in structuring a judgment in the particular circumstances of this case. However, it was necessary for the appellants to make the election of which their Honours spoke, as success by them on their claims of apprehended bias could not result in the primary relief which they sought, namely, the entry of judgment in their favour on Mr Rush’s claims.

56    Senior counsel then said that the appellants would consider their position in this respect.

57    Later that day, as already indicated, senior counsel informed the Court that the appellants no longer pressed the apprehension of bias claims nor the claim of denial of procedural fairness in Ground 5. After some further submissions, the Court invited the appellants to consider applying to amend the FANA so as to withdraw the grounds containing the claims of apprehended bias. On the following morning, the appellants made that application, and it was granted.

58    By the Second Further Amended Notice of Appeal (2FANA) filed on 5 November 2019, the appellants withdrew Grounds 1-6 inclusive and confirmed that Ground 20 was abandoned.

59    The appellants’ abandonment of its claims of apprehended bias and the amendment of the notice of appeal means that there is now no suggestion that the decision of the Judge was affected in the manner which the appellants once claimed. We note, moreover, that, at the time of the abandonment of the claim, the precise nature of the bias which it was said that the reasonable fair minded observer may have apprehended had not been made clear.

The imputation that Mr Rush was a “pervert” (Ground 8)

60    This ground relates to the Judge’s findings at [135] and [195] that the 30 November 2017 and 1 December 2017 articles conveyed the imputation that Mr Rush was a pervert. On the hearing of the appeal, senior counsel for the appellants accepted that this ground of appeal was relevant only to damages.

61    On the appeal, the appellants contended that the Judge had erred in rejecting their interpretation of the word “pervert”, being a person who is, by contemporary standards, a sexual deviant or someone who engages in sexual behaviour that would be regarded as not just offensive, but disgusting as well as bizarre. The appellants gave as an example, a “peeping Tom”. In contrast, according to the appellants, mere sexual harassment would not be properly described as “perverted”. The appellants argued that their interpretation is consistent with the dictionary definitions set out by the Judge at [138] of his Honour’s reasons which, his Honour acknowledged, “tended to involve some form of sexual abnormality or deviance”.

62    At [140] of the Judge’s reasons, his Honour stated –

[I]n my view the common or everyday meaning of “pervert” is somewhat broader than the rather narrow dictionary definitions. For example, the ordinary reasonable reader would be likely to consider that a person, particularly an older man, who leers at younger women or men in a lecherous, lewd or licentious manner, particularly in a workplace setting, would rightly be called a “pervert”. Indeed, in Australia at least, a man who engages in such behaviour is often called a “perv”, which is a colloquial or shortened form of the word “pervert”. The Macquarie Dictionary defines the colloquial expression “perv” (or “perve”) as a “sexual pervert” and the expression to “have a perv (perve)” as “to look at something, with or as if with lustful appreciation” or “to look lustfully”. The impression conveyed by the article was, at the very least, that Mr Rush was a “perv” or pervert in that sense.

(Emphasis added)

63    The appellants argued that the Judge wrongly equated the noun “pervert” with the slang verb “to perve”, submitting that, in ordinary language the two concepts are quite distinct. The appellants argued that the verb rarely connotes behaviour that ordinary members of society would regard as sexually deviant and may simply mean “to look lustfully”. To look lustfully might in some circumstances be regarded as reprehensible but not as the conduct of a sexual deviant. In contrast, a “pervert” or a person who is “perverted” is rarely, if ever, considered in a positive light.

64    The appellants submitted that the Judge wrongly concluded that, because the noun “perve” may be synonymous with “pervert”, the verb “perve” must therefore connote behaviour that is “sexually deviant or perverted”.

65    Mr Rush submitted that the imputation that he was a pervert followed from the other imputations found to be conveyed by the imputations, which included that he:

(a)    behaved as a sexual predator;

(b)    engaged in inappropriate behaviour of a sexual nature;

(c)    committed sexual assault; and

(d)    inappropriately touched an actress.

66    Mr Rush submitted that the Judge gave detailed reasons for finding that this imputation was conveyed by the second matter complained of (at [127]-[146]) and by the third matter complained of (at [195]-[201]), and for finding that the appellants were arguing for an elevated meaning of the word “pervert”, that is a meaning which was not the natural and ordinary meaning.

67    Although the Judge found the appellants’ interpretation of the imputation to be unduly narrow, his Honour also made findings adverse to them on the basis of that narrow interpretation. Thus, the appellants’ contention goes nowhere.

68    Specifically, as to the 30 November 2017 articles, the Judge found at [139] that the articles as a whole conveyed the impression that Mr Rush was someone who acted in a sexually abnormal or deviant way. His Honour found that the conduct conveyed was “more than just offensive and objectionable” and that, having regard to Mr Rush’s age and standing, it would also be considered by most ordinary reasonable people as sexually abnormal or deviant. His Honour also found that the suggestion that Mr Rush was a “sexual predator” also suggested some form of sexual abnormality or deviancy.

69    As to the 1 December 2017 articles, the Judge found at [200] that, even if the word “pervert” is to be given the narrow meaning contended for by the appellants, “the ordinary reasonable reader would be likely to consider that a senior actor who committed sexual assault, or behaved as a sexual predator, or engaged in inappropriate behaviour of a sexual nature, or inappropriately touched an actress, in the course of a major theatre production, had engaged in sexual conduct which was bizarre, unnatural or abnormal”.

70    In any event, we 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.

71    Accordingly, this ground of appeal fails.

The rejection of the defence of justification

72    By [13] of their Second Further Amended Defence (2FAD) to Mr Rush’s Statement of Claim, the appellants alleged that all but one of the defamatory imputations alleged by Mr Rush were substantially true and thereby invoked s 25 of the Defamation Act and its interstate and Territory counterparts. The exception was the imputation pleaded in [10(g)] of the Statement of Claim, namely, that “[t]he applicant had falsely denied that the Sydney Theatre Company had told him the identity of the person who had made a complaint against him”. The appellants did not seek to justify that imputation.

73    At the trial, the appellants did not seek to justify another of the pleaded imputations, namely, the imputation pleaded in [10(f)] of the Statement of Claim that Mr Rush’s conduct in “inappropriately touching an actress during King Lear was so serious that the [STC] would never work with him again”. They accepted that Mr Rush was entitled to judgment on the imputations pleaded in [10(f)] and [10(g)] of the Statement of Claim.

74    The Judge recorded that it was the appellants who had the onus of proving on the balance of probabilities that the imputations conveyed by the impugned matters were substantially true and noted that, in considering the evidence, it was appropriate to have regard to the seriousness of the allegation made and the gravity of the consequences following from a particular finding. In this respect, the Judge referred to Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336 at 362; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, 110 ALR 449 at 450 and to s 140 of the Evidence Act 1995 (Cth).

75    The Judge noted that the allegations pleaded by the appellants in support of the defence of justification related entirely to Mr Rush’s behaviour towards Ms Norvill, at [230]. His Honour summarised the appellants’ particulars as involving eight key allegations and used the summary as the framework for his reasons concerning the plea of justification. It was not suggested that there was any error in the Judge’s summary. The eight matters were:

(i)    on one occasion (pleaded to have occurred between about 26 and 30 October 2015) when Mr Rush and Ms Norvill were rehearsing the final scene of the play in which King Lear grieves over Cordelia’s dead body, Ms Norvill saw Mr Rush “hovering his hands over her torso and pretending to caress or stroke her upper torso” and then making “groping gestures in the air with two cupped hands, which gestures were intended to simulate and did in fact simulate him groping and fondling [Ms Norvill’s] breasts”, at [232]. That incident was said to have occurred in front of other members of the cast and perhaps crew;

(ii)    during the rehearsal period from about 12 October to 23 November 2015, Mr Rush “regularly made comments or jokes about [Ms Norvill] or her body which contained sexual innuendo”, at [233]. This conduct was also said to have often occurred in the presence of members of the cast and crew;

(iii)    during the rehearsal period, Mr Rush would “regularly (every few days) make lewd gestures in [Ms Norvill’s] direction” and “[o]n a number of occasions this comprised [Mr Rush] looking at [Ms Norvill], sticking his tongue out and licking his lips and using his hands to grope the air like he was fondling [Ms Norvill’s] hips or breasts”, at [234];

(iv)    during a promotional interview with Elissa Blake, a journalist at the Sydney Morning Herald, Mr Rush described having a “stage-door Johnny crush” on Ms Norvill, at [235];

(v)    during a preview performance of the play between 24 and 27 November 2015, Mr Rush departed from the way that the last scene had been repeatedly rehearsed in that he “did not touch [Ms Norvill’s] hand and face … but rather [he] moved his hand so that it traced down [Ms Norvill’s] torso and across the side of her right breast”, at [236]. In relation to this allegation, the appellants also claimed that on the following day, the director of the play, Mr Armfield, had given Mr Rush an oral “note”, apparently in the presence of other cast members, by which he directed that Mr Rush should make his performance in the last scene more “paternal” as it was becoming “creepy and unclear”. Mr Armfield was also said to have directed Mr Rush not to stroke Ms Norvill’s body but to place his hand lightly on the side of her face and arm instead;

(vi)    the sixth allegation concerned Mr Rush’s conduct during the final scene of the play in which, as already noted, he carried Ms Norvill onto the stage. 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. The appellants alleged that, in a performance occurring between 14 and 26 December 2015, before lifting Ms Norvill from the chair, Mr Rush placed his hand on her lower back over her shirt, moved his hand under her shirt and along the waistline of her jeans, brushing across the skin of her lower back. The appellants alleged the movement to have been “light in pressure, slow and … deliberate”, and to have lasted for about 20-30 seconds, at [237];

(vii)    this allegation concerned conduct similar to the sixth but was said to have occurred during a performance in the period between 4 and 9 January 2016. The appellants alleged that while Ms Norvill was standing on the chair, Mr Rush started to touch her lower back on top of her shirt and then gently rubbed his fingers over her lower back from right to left; and

(viii)    on 10 June 2016, Mr Rush sent a text message to Ms Norvill in which he said that he thought about her “more than is socially appropriate”.

76    The Judge noted the appellants’ contention that the conduct of Mr Rush which they alleged was intentional and constituted scandalously inappropriate conduct in the workplace.

77    It was not in issue that Mr Rush had said, during the course of an interview with a journalist on 17 November 2015 promoting the STC performance of King Lear, that he had a “stage-door Johnny crush” on Ms Norvill. The evidence also established that Mr Rush had, on 10 June 2016, sent a text message to Ms Norvill in which he said, amongst other things, that he thought about her “more than is socially appropriate”. The Judge found, however, that neither of these statements supported the appellants’ plea of justification in relation to any of the pleaded imputations, at [526]-[529], [656].

78    The Judge found that the appellants had not proven any of the remaining six allegations, at [459], [502], [576], [610], [634].

The witnesses

79    The appellants called two witnesses to give evidence in support of the allegations they made in support of the plea of justification. These were Ms Norvill and Mr Mark Winter.

80    The evidence of Mr Winter was, the Judge noted, limited as it concerned only two of the matters on which the appellants relied, being (it seems) the first and the fifth, at [345].

81    This meant that the principal evidence on which the appellants relied for their defence of justification was that of Ms Norvill.

82    Mr Rush himself gave evidence concerning the appellants’ allegations and led evidence from three other witnesses: Mr Armfield, Ms Nevin and Ms Buday.

83    Before making his findings about each of the appellants’ allegations, the Judge made some general findings about the credibility and reliability of the six witnesses who gave evidence concerning them. We will return to some aspects of those findings shortly. For the present, however, we note that the Judge concluded that “[o]n the whole, … Mr Rush was a credible witness who gave honest and reliable evidence about the critical events in question”. His Honour regarded the evidence of Mr Armfield, Ms Buday and Ms Nevin as honest and reliable.

84    The Judge doubted the reliability and credibility of Ms Norvill’s evidence on critical matters. He gave detailed reasons for that conclusion. Many of the appellants’ submissions on the appeal were directed to these findings. Counsel for the appellants acknowledged that, in order for the appellants to succeed in their challenge to the Judge’s rejection of their defence of justification, it was necessary for them to show that the Judge’s findings concerning the credibility and reliability of Ms Norvill as a witness should be overturned. We will return to the Judge’s assessment of Ms Norvill’s evidence shortly.

85    As already noted, Mr Winter’s evidence was of relatively narrow compass. The Judge identified three matters which suggested “considerable doubt” about the reliability of his evidence generally. These were Mr Winter’s acknowledgement that his recollection of relevant events was “vague”, the fact that his description of the events in question was “not entirely consistent” with Ms Norvill’s evidence, and the “rather matter-of-fact way” in which Mr Winter had given his evidence.

The grounds of appeal concerning the defence of justification

86    Four of the appellants’ grounds of appeal concerned the Judge’s rejection of the defence of justification.

87    By Ground 9, the appellants contended that the Judge should have found that each of the six disputed incidents did occur and should have found that Mr Rush’s text of 10 June 2016 was “inappropriate”. The appellants did not challenge the Judge’s rejection of their defence concerning the “stage-door Johnny crush” comment.

88    By Ground 10, the appellants contended that the Judge had, in seven separate respects, erred in finding that Ms Norvill was “an unreliable witness prone to exaggeration and lacking in credibility”. Ground 11 is in effect a particular of Ground 10(b) because it is a complaint that the Judge had erred by relying on an email of 6 April 2016 from Ms Annelies Crowe (the Crowe email) in his assessment of the credibility of Ms Norvill. Ground 12 is in effect a particular of Ground 10(e) because it is a complaint concerning the Judge’s assessment of the evidence of Mr Winter, and of the extent to which it supported the evidence of Ms Norvill.

The appellate approach

89    The approach required of an appellate court in determining challenges to findings of fact made by a trial judge is settled. In Fox v Percy [2003] HCA 22; 214 CLR 118 at [25]-[29], Gleeson CJ, Gummow and Kirby JJ said:

[25]    Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:

"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."

As this Court there said, that approach was "not only sound in law, but beneficial in … operation".

[26]    After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.

[27]    The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

[28]    Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

[29]    That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

(Citations omitted)

90    The required approach was summarised most recently in the joint judgment of Bell, Gageler, Nettle and Edelman JJ in Lee v Lee [2019] HCA 28; 372 ALR 383 at [55]:

A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge" …

(Citations omitted)

91    The judgment of the Full Court of this Court in Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62 at [402]-[415] also contains a comprehensive review of the authorities which we gratefully adopt.

The appellants’ submissions as to the application of these principles

92    The appellants accepted that any finding of fact by the Judge based to any substantial degree on his assessment of the credibility of a witness should stand unless it can be shown that his Honour failed to use, or palpably misused, his advantage or had acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. They submitted, however, that in this case, the Judge had “expressly disavowed” reliance on witness demeanour as providing the basis for his findings in relation to Ms Norvill’s reliability and credibility as a witness. The consequence, so the appellants submitted, is that this Court is in as good a position as the Judge to decide on the proper inferences to be drawn from the evidence; that the Court is obliged to weigh the conflicting evidence afresh; and that the Court is obliged to draw its own inferences and conclusions. The appellants also submitted that, given the disavowance of reliance on witness demeanour which they attributed to the Judge, it was not necessary for them to show that his Honour’s conclusions on his assessment of Ms Norvill’s evidence were “glaringly improbable”.

93    In our view, the appellants’ submission that the Judge had specifically disavowed reliance on witness demeanour involves a significant over simplification of his Honour’s reasons and should not be accepted. When properly understood, it is apparent that the Judge did not eschew reliance on his observations and assessments of the witnesses as they gave their evidence. It is apparent, on the contrary, that they were matters to which he did have significant regard. We state our reasons for this conclusion in the section of reasons which follows.

The use of demeanour

94    The Judge commenced his assessment by noting that witness demeanour is one consideration which may assist a judge in resolving conflicts in evidence, at [307]. It is apparent that in doing so, his Honour was using the word “demeanour” with its conventional meaning in this context, that is, as encompassing the matters which can be observed while the witness gives evidence and which are not apparent, whether in whole or in part, from the written record. These include the appearance of the witness and the manner in which he or she gives evidence. It is these matters which give trial judges advantages not shared by appellate judges.

95    The Judge noted, however, that it is well accepted that there are limitations on the inferences which can be drawn from the appearance of witnesses and referred, in this respect, to passages in the reasons of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy at [30]-[31] concerning research which has cast doubt on the ability of judges to tell truth from falsehood accurately on the basis of appearance, at [308]. The Judge then noted other factors which may assist in determining the credibility of a witness and the reliability of his or her evidence: consistency with any previous account given by the same witness of the events in question; the plausibility and apparent logic of the events described by the witness; and the consistency of the witnesses’ account with other objectively established events, at [309]. His Honour then said that consideration of these matters is often a surer guide to the reliability of the evidence given by a witness about disputed events, at [309].

96    Having made these general observations, the Judge said, at [310]:

This is a case where such considerations, as opposed to witness demeanour, provide the main key to the resolution of the conflicts in the evidence.

(Emphasis added)

97    The appellants submitted that, by his statement in [310], the Judge had “expressly disavowed reliance on witness demeanour as providing the basis for his findings in relation to Ms Norvill’s reliability and credibility as a witness”.

98    A number of matters belie the accuracy of this submission. Instead, the Judge was indicating only that he would have particular regard to the considerations which he had identified in [309].

99    First, the Judge’s statement in [310] was not directed to the assessment of Ms Norvill’s evidence only, but to the evidence of all the witnesses who gave evidence about the matters on which the appellants relied for the plea of justification.

100    Secondly, the Judge described the considerations other than witness demeanour as the “main key” to the resolution of the conflicts in the evidence, not as the “sole key”.

101    Thirdly, it is apparent that, in the reasons which followed, the Judge did not exclude from consideration altogether his observations of the demeanour of the witnesses and of the manner in which they gave their evidence. As the Judge’s assessment of the witnesses is relevant not only to the appellants’ present submissions, but also to other grounds, we set out passages in the reasons which are indicative of the Judge’s use of demeanour.

102    In relation to Mr Rush, the Judge said that “[n]othing in his demeanour” suggested that he was not giving an accurate and honest account of the relevant facts and circumstances; that Mr Rush “did not appear” to be giving long-winded answers (as the Judge found that he had on some topics) to avoid answering the questions; and that Mr Rush “presented” as a highly articulate and analytical person who was, “by his very nature” prone to giving such complex and wordy responses. The Judge also said that he viewed some of Mr Rush’s evidence about a conversation he had had with a Mr Trewhella shortly before 14 November 2017 as “less than impressive” but did not consider that his evidence about that one issue was such as to cast doubt on the reliability of his evidence as a whole.

103    In relation to Mr Armfield, the Judge said:

[320]    Mr Armfield was an impressive witness. There was no issue about his credibility as a witness or the reliability of his evidence generally. Nationwide and Mr Moran did not suggest that any of his evidence should not be accepted. 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.

(Emphasis added)

104    The Judge described Ms Buday as being, in some respects, “a unique, if not, rather unusual witness”, noting that she had, on more than one occasion, sung her answer to a question. His Honour assessed Ms Buday as “a difficult witness at times” who had occasionally been “needlessly disrespectful” to senior counsel for the appellants and “contemptuous” towards the appellants. Plainly, these were assessments based on the manner in which Ms Buday had given her evidence. The Judge took into account Ms Buday’s close friendship with Mr Rush but concluded that, despite these features, she had given “clear, direct and forceful answers to the questions … put to her in relation to the events and circumstances in question”. That assessment too turned at least in part on the Judge’s observations of Ms Buday as a witness. The Judge concluded:

[322]    … 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, or put forward any reasons why any of her evidence should not be regarded as reliable. It certainly was not suggested that she was not telling the truth about her observations about the rehearsals and the interaction between Mr Rush and Ms Norvill.

105    The Judge described Ms Nevin as “an impressive witness”, saying that her “frankness and candour” on one issue on which she was challenged was to her credit, at [325]. The Judge concluded that Ms Nevin was “a frank, forthright and honest witness, and that her evidence was reliable”.

106    The Judge commenced his assessment of Ms Norvill’s evidence by reference to the difficulties which persons making allegations of sexual assault or sexual harassment often experience. He referred to the vulnerability of their position, the stress involved in giving evidence about such matters and the distress which being required to recall such matters can cause. His Honour noted that many of these considerations applied in Ms Norvill’s circumstances and said that he had taken them into account in assessing her evidence, at [328].

107    The Judge then said that, despite the difficult nature of her circumstances, Ms Norvill generally “presented” as an “intelligent, articulate and confident witness” who was “endeavouring to give an honest recollection of the events in question” and said that she “did not appear to be either nervous, uncertain or evasive”. These were observations based on Ms Norvill’s demeanour while giving evidence, and were favourable to her.

108    The Judge then said:

[330]    Putting Ms Norvill’s demeanour to one side, however, there are a number of aspects to the evidence which raise significant issues about her credibility as a witness and the reliability of the evidence she gave concerning the disputed events. Those issues generally relate to the consistency or inconsistency of her version or account of the relevant events over time, and the consistency or inconsistency of her evidence with more contemporaneous statements or objective indications of the nature of her relationship with Mr Rush at the relevant time. There were also some indications in Ms Norvill’s evidence that she was a witness who was, at times, prone to embellishment or exaggeration.

(Emphasis added)

109    On several other occasions in the reasons, the Judge referred to his assessment of Ms Norvill as a witness who was prone to embellishment and exaggeration, at [419], [463], [509]. Those assessments were based, at least in part, on the Judge’s assessment of the manner in which Ms Norvill gave her evidence.

110    The Judge identified a number of “inconsistencies” in Ms Norvill’s evidence, these being inconsistencies between Ms Norvill’s evidence, on the one hand, and earlier statement she herself had made, on the other or inconsistencies between Ms Norvill’s evidence and matters which the Judge regarded as objectively established. The Judge had particular regard to Ms Norvill’s explanations with respect to these inconsistencies, and described them, on more than one occasion, as “not particularly persuasive”. Again, these assessments appear to have been based in part upon the Judge’s observations of the manner in which Ms Norvill gave her evidence.

111    In our consideration of Ground 10 of the Notice of Appeal, we will refer to other aspects of the Judge’s assessment of the reliability and credibility of Ms Norvill’s evidence.

112    In relation to Mr Winter, we have already referred to the Judge’s reference to “the rather matter-of-fact way” in which he gave his evidence. It is apparent that, at least in that respect, the Judge relied on his observations of the way in which Mr Winter had given his evidence. Counsel for the appellants acknowledged that that was so and that the Judge was in that respect in a superior position to this Court.

113    Having regard to all these matters, we do not think it accurate to regard the Judge as having left his observations of the witnesses and his impressions of the manner in which they gave their evidence, out of consideration altogether. On the contrary, the Judge’s reasons indicate that, while he had particular regard to matters such as consistency and plausibility, he also made use of his observations of the witnesses as they gave their evidence. It would be surprising if his Honour had done otherwise.

114    The consequence is that we reject the appellants’ submission that the Judge had “expressly disavowed reliance on witness demeanour”. Accordingly, this is a case in which we should respect the advantage which the Judge had in seeing and hearing the witnesses and should exercise the appellate restraint referred to in Fox v Percy and in Lee v Lee.

115    It is appropriate to consider Grounds 10-12 first as the appellants accepted that, unless they succeeded in overturning the Judge’s findings concerning Ms Norvill’s credibility and reliability as a witness by their challenges in those grounds, they could not (subject to one qualification to which we will return) succeed on Ground 9.

The assessment of Ms Norvill’s evidence (Ground 10)

116    As previously noted, by this ground, the appellants contend that the Judge erred in finding that Ms Norvill was an unreliable witness prone to exaggeration and lacking in credibility. They contend that the finding is affected by seven errors, each of which is identified in a sub-ground. Four (sub-grounds (a)-(d)) concern the general findings made by the Judge concerning Ms Norvill’s evidence, that is, findings before the Judge gave his conclusions concerning the appellants’ particular allegations, and three (sub-grounds (e)-(g)) concern the Judge’s findings about the general absence of corroboration of Ms Norvill’s account.

The reliance on Ms Norvill’s promotional interview statements (Ground 10(a))

117    The first matter which the Judge identified as giving rise to concerns about the credibility of Ms Norvill’s evidence about Mr Rush’s conduct during the rehearsals was that it was generally inconsistent with contemporaneous statements of Ms Norvill about working alongside Mr Rush in King Lear. These statements had been made in interviews with journalists intended to promote audience attendance at the STC production of King Lear.

118    The appellants contended that the Judge had erred in this respect because it was “fanciful” to expect that Ms Norvill would, in what were obviously interviews designed to promote the STC production of King Lear, express any reservations about working with Mr Rush or to do other than characterise their collaboration as a highly positive experience.

119    The setting for this ground of appeal is as follows.

120    On 17 November 2015, Mr Rush, Ms Buday, Ms Thomson and Ms Norvill were interviewed (on the premises of the STC) by a journalist of The Sydney Morning Herald. The Judge found that the purpose of the interview was the promotion of King Lear. The journalist wrote a story based on the interview which was published in the edition of The Sydney Morning Herald on 19 November 2015. The opening paragraphs of the article were as follows:

Posing for pictures, Geoffrey Rush doesn’t seem to be taking the role of King Lear too seriously. Not today. “Do I have that regal stud-muffin quality coming through?” he asks the photographer.

He casts an approving eye over his three stage daughters. “I hand-picked them,” he cackles. “I couldn’t be more thrilled. The chemical balance feels right.”

Taking a break from his recurring part in Pirates of the Caribbean, Rush is “embracing his sexagenarianism” in preparation to play the title role in Shakespeare’s King Lear, one of the most demanding roles in classical theatre. Helen Buday, Helen Thomson and Eryn Jean Norvill are Lear’s daughters, Goneril, Regan and Cordelia.

Rush and director Neil Armfield talked a great deal about creating a sense of family before embarking on rehearsals for the Sydney Theatre Company’s production, Rush says. To create an intimate feel, they cast actors Rush had known for years and had worked with previously.

“Helen [Buday] and I go way back,” Rush says. “We were in The Importance of Being Earnest back in the day [in 1988]. But even before that I spent time as a teacher at NIDA doing clowning and there was this amazing young woman in first year. Helen actually taught me how to trip.”

Rush and Helen Thomson go back a way, too. “Helen played a hooker in a production of a minor Jacobean comedy I was in called The Dutch Courtesan [in 1993],” Rush says.

This production marks the first time Rush has worked with Norvill, however. “I saw EJ play Ophelia in Hamlet for the MTC [Melbourne Theatre Company] and I developed an immediate stage-door Johnny crush,” he confesses. “But you won’t print that, will you?”

121    The Judge noted that the article later dealt, amongst other things, with the mood of the rehearsals which by that time had almost concluded. The article included the following:

Despite the heaviness of the material, the atmosphere in the rehearsal room has been very light, says Thomson. “I was talking to [incoming STC artistic director] Jonathan Church and he was saying that in UK there has been a run of Lears that have been quite intellectual and that’s just not Geoffrey.”

Rush laughs. “I’m a low comedian! Wearing a crown! Rehearsal is a playpen for me to do cheap jokes.”

Working with Rush for the first time, Norvill is appreciating that playfulness. “I love Geoffrey’s ebullience and that’s really something because this play looks into some deep dark holes in humanity,” she says. “Sometimes fear can get into a rehearsal room and rot it. Nervousness, formality, all that bullshit. But Neil and Geoffrey work from moment to moment and we’re all on the same journey together.”

(Emphasis added)

122    Ms Norvill acknowledged making the statements attributed to her.

123    Ms Norvill also was interviewed by a journalist from The Daily Telegraph in late November or early December 2015. The article resulting from that interview was published in The Daily Telegraph on 3 December 2015. It attributed the following statements to Ms Norvill:

Working opposite Oscar-winner Geoffrey Rush, who is “always flipping the coin to see what’s underneath” is exciting, Ms Norvill said.

“Geoffrey is just forever playful. He’s so generous, he’s very cheeky which is perfect for me. I feel very privileged to work with him and proud to be his ‘favourite daughter’,” she joked.

124    Ms Norvill acknowledged that she had made these statements to the journalist, although she was not sure that she had used the term “exciting”.

Ms Norvill’s evidence concerning her statements in the promotional interviews

125    In her evidence in chief, Ms Norvill said that Mr Rush’s statement about having had a “stage-door Johnny crush” on her had made her feel “humiliated, put on the spot, considering that we were, again, being interviewed in a professional context. It made me feel uncomfortable and disrespected”. She said, however, that she had not said anything about the comment during the course of the first interview:

No, because we were being interviewed, so if I was to reprimand him, or if I was to say, “well, that’s not really appropriate considering I’m playing your daughter in this play or considering that you’re my friend and your colleague”, you know, like, no, I didn’t say anything because I was trying to be professional.

126    Ms Norvill said that she had not spoken to the Stage Manager, Georgia Gilbert, about the comment because she knew that Ms Gilbert was “overloaded” at that time. She also acknowledged that she had not spoken to the Casting Manager, Annelies Crowe, at the time and gave the following explanation:

I actually didn’t know to access the pathways, you know, of support. It didn’t seem transparent to me or easy. Also she had cast me in that role and I – it was a very big opportunity for me, you know.

127    Ms Norvill said that she had not spoken to the Company Manager, Rachael Azzopardi, about the issue because she had not found her “very approachable”. She had, however, in the following week asked Helen Thomson “how do you cope with Geoffrey’s behaviour?”. She said Ms Thomson responded by saying “just ignore it and laugh it off”.

128    Ms Norvill also said that at about the same time she had asked Ms Nevin “how – have you ever experienced, you know, unwanted attention”, or words to the effect of unwanted advances or sexual harassment. She said that Ms Nevin had responded “no, I can’t help you with that. That has never happened to me”. Ms Nevin denied that any exchange to that effect had occurred.

129    In her cross-examination, Ms Norvill said that her statements in these interviews that she had appreciated Mr Rush’s playfulness, that she loved his ebullience, and that they were “all on the same journey together” were not true. She gave the following explanation for making the statements:

It was a difficult position to be – being interviewed and have it being photographed with two other women that, you know, were actually having probably a good time and I wasn’t. What was I supposed to say? How would the journalist – that – “oh and by the way, I don’t know if Geoffrey has the right intentions towards me. I don’t find his jokes that funny, actually; they make me feel small as a human”. What was I supposed to do … I’m the youngest. I’m the least experienced. I have the least power. What was I supposed to do?

(Emphasis added)

130    Ms Norvill also said that she had no recollection of having been interviewed for The Daily Telegraph article published on 3 December 2015. She explained that she has given many interviews over the years about different Shakespearean plays and had often said that “playing a Shakespearean woman can be tricky”. She acknowledged, however, that at the time she had felt privileged to work with Mr Rush and that she had been proud to be in the performance of King Lear. Ultimately, Ms Norvill acknowledged that she had said the words which The Daily Telegraph attributed to her. Ms Norvill explained the absence of any suggestion in the interview of fear or discomfort about working with Mr Rush:

I’m not talking with a friend; I’m talking with a journalist. And it’s also a part of my job to speak about my colleagues with respect. I would not disrespect him in that forum. I wouldn’t do that. So yes, I understand why I would have praised Geoffrey. And, you know, I probably wanted to believe that, as well. He – he was cheeky. But that cheekiness damaged me.

The assessment of the statements in the promotional interviews

131    The Judge did not make a finding as to when the interviews with the journalists occurred in relation to the incidents on which the appellants relied for the justification of their imputations. It seemed to be common ground that the interview on 17 November 2015 occurred after the first of the alleged incidents. Ms Norvill’s evidence was that the conduct alleged in the second and third matters had been “going on” at the time of that interview.

132    It seems that Ms Norvill’s interview with the journalist from the Daily Telegraph occurred after the fifth of the incidents alleged by the appellants.

133    As already noted, the Judge held that one of the matters indicating the unreliability of Ms Norvill’s evidence concerning the conduct of Mr Rush was that her contemporaneous statements to the journalists were generally inconsistent with the occurrence of the conduct she was describing. His Honour said that it was “difficult to imagine that [Ms Norvill] could have said any of those things if the [first] incident described by her had in fact occurred”, at [465]. Later again, the Judge said, at [496]:

… The statements made by Ms Norvill appear to be entirely inconsistent with her evidence about what went on in the rehearsal room …

134    The Judge then referred to Ms Norvill’s explanation for the inconsistency set out above and continued, at [497]:

It could be accepted that, if the events that Ms Norvill referred to in her evidence did in fact occur in the rehearsal room, she could not be reasonably expected to have told a journalist about that behaviour in the course of a promotional interview, particularly one conducted together with Mr Rush. That does not, however, entirely explain why Ms Norvill made such positive statements about both Mr Rush and the rehearsals.

135    With respect to Ms Norvill’s statements in the interview with the journalist from The Daily Telegraph, the Judge said:

[500]    It is again difficult to accept that this is a reasonable or persuasive explanation for telling what, on Ms Norvill’s subsequent version of events, was, at the very least, a misleading impression of what she actually felt at the time about working with Mr Rush. While it may be accepted that it was part of Ms Norvill’s job to give promotional interviews, that in no sense obliged her to make misleadingly positive statements about Mr Rush as she effectively claimed.

[501]    In all the circumstances, Ms Norvill’s contemporaneous statements to the media about her positive experience working with Mr Rush during the rehearsal period, and the rather unsatisfactory explanation given by Ms Norvill in relation to them, count against the reliability and credibility of Ms Norvill’s evidence concerning the rehearsals.

136    As is apparent, the Judge accepted that it was appropriate for Ms Norvill not to have told the journalists about the conduct of Mr Rush which she said had occurred at that time but attached significance to the positive nature of Ms Norvill’s comments about Mr Rush which she did choose to make. That is to say, while it was part of Mr Norvill’s function to give promotional interviews, that had not obliged her to make the “misleadingly positive statements” about Mr Rush which she had.

Consideration

137    In our respectful opinion, there is some force in the appellants’ submission that the Judge attached greater significance to Ms Norvill’s statements in the promotional interviews than the circumstances warranted. The purpose of the interviews was obvious, namely, the promotion of the STC’s production of King Lear. The actors sought to present a positive image of the production so as to encourage audiences to attend. In such interviews, it is almost de rigueur for the participants to speak about the complexity of the play, the delight which they are experiencing in performing it and about the good “chemistry” which exists between the actors. An integral part of the promotion is the conveying of the actor’s personal enjoyment and satisfaction in participating in the performance.

138    The interviews in which Ms Norvill participated seem to have been of this kind. That makes it understandable that Ms Norvill would have wished to speak warmly about the production and about the experience of working with Mr Rush. He was at the time a (if not the) pre-eminent actor in Australia and was an obvious drawcard for the STC production. In that context it would have been natural for Ms Norvill to make positive statements about performing with him, whatever her private feelings. And the difference between the words Ms Norvill did use and comments which may have been slightly more guarded or circumspect appears not to be great.

139    The Judge did not refer in these findings to the relative imbalance of power between Ms Norvill, on the one hand, and Mr Rush (and, possibly Ms Nevin and Ms Buday), on the other. However, we do not consider that this means that it was overlooked. Ms Norvill had herself drawn attention to the imbalance in the passage from her cross-examination set out above. Moreover, the Judge had noted at [187] that the impugned articles had made clear the power imbalance and accepted that the ordinary reasonable reader would have appreciated that imbalance. In these circumstances, we do not think that it should be held that the Judge’s consideration of the significance of the inconsistencies did not take account of this feature of the relationship.

140    It is of course pertinent that, on her own evidence, Ms Norvill admitted to telling untruths in the first interview. However, as counsel for Mr Rush acknowledged on the appeal, while the admitted untruths may not be to her credit, they are not, in the circumstances, materially to her discredit.

141    In all these circumstances, we consider respectfully that the Judge should not have attached the significance which he did to the positive terms in which Ms Norvill spoke of Mr Rush in the promotional interviews. In our view, Ms Norvill’s conduct in the interviews is equally consistent with the circumstance that the conduct she described had occurred but with her suppressing or subordinating her own personal feelings to the “corporate” interest in promoting the performance of King Lear.

142    However, there was a good deal of other evidence, which was independent of Ms Norvill’s conduct in the promotional interviews, which indicated that there was a positive relationship between Ms Norvill and Mr Rush throughout the rehearsal period and throughout the performances of King Lear. For example, Mr Armfield said that, based on his observations of Ms Norvill and Mr Rush during the rehearsals and the performances, he had thought that they were getting on “wonderfully” and that they had “a deep friendship”; Ms Buday said that she had not noticed any indications of discomfort by Ms Norvill; Ms Nevin described Mr Rush’s relationship with Ms Norvill as the same as with her and everyone else (“jovial, friendly, enthusiastic, cheerful”) and said that she had not noticed anything “out of the ordinary”; and Mr Rush said that he thought that he had “a very sparky, congenial rapport” with Ms Norvill. None of that evidence was challenged. One may accept that Ms Norvill may have endeavoured at relevant times, in the interests of the performance of King Lear as a whole, to maintain good relationships with all cast members and that her behaviour as described by these witnesses is a reflection of that endeavour. However, we consider, as counsel for Mr Rush submitted, that Ms Norvill’s relationship with Mr Rush, as described by these witnesses did not sit well with her claims that she had felt “compromised”, “pressured”, “extremely intimidated”, “frightened”, “threatened” and “panicked”. That is to say, there was other evidence suggesting that Ms Norvill’s contemporaneous behaviour was not consistent with the claims she made at trial concerning Mr Rush’s conduct.

143    For these reasons, we do not consider that the erroneous significance which the Judge attached to Ms Norvill’s contemporaneous statements to the journalists should be regarded as material. Other contemporaneous conduct of Ms Norvill, occurring when she was not subject to the same constraints as those applying in the promotional interviews, was also seemingly inconsistent with the conduct of Mr Rush about which she gave evidence, and justified the Judge’s assessment.

The use of the Crowe email (Grounds 10(b) and 11)

144    The appellants contend that the Judge erred in his assessment of the credibility of Ms Norvill’s evidence by relying on inconsistencies between her evidence and the Crowe email. Their complaint is that the Judge should not have relied on the email in this way given that Mr Rush had not called Ms Crowe as a witness “although she was available and subject to subpoena”.

Factual setting

145    In April 2016, Ms Crowe held the position of Company Manager at the STC. Her email had been tendered by counsel for Mr Rush as a business record of the STC. This occurred during the cross-examination of Ms Norvill.

146    The Judge accepted that Ms Norvill had, at her own request, met Ms Crowe at a hotel on 5 April 2016. This was about three months after the conclusion of the STC production of King Lear. During the meeting, Ms Norvill had told Ms Crowe about Mr Rush’s conduct towards her during the production of King Lear. On the following day, at 2.48 pm, Ms Crowe sent an email to Mr McIntyre and Ms Azzopardi (copied to Ms Hill) in which she reported on the meeting and provided an “outline” of what (according to Ms Crowe) Ms Norvill had told her about Mr Rush’s conduct. In April 2016, Mr McIntyre, Ms Azzopardi and Ms Hill held the positions of Executive Director, Director, Programming and Artistic Operations and Casting Director, respectively, at the STC. The Judge regarded Mr McIntyre and Ms Azzopardi as being “senior officers” within the STC.

147    The Judge described Ms Crowe’s email as “an important document”, saying, at [348]:

[I]t contains, or at least purports to contain, a summary of the first account of Mr Rush’s behaviour given by Ms Norvill to another person. Indeed, it contains the only contemporaneous documentary record of any complaint made by Ms Norvill to the STC about Mr Rush’s behaviour …

148    The Judge considered that the Crowe email raised “a number of significant issues about the reliability and credibility of Ms Norvill’s evidence”, at [368]. This was so because the general account which Ms Norvill appeared to have given Ms Crowe within a few months of the close of the production of King Lear was inconsistent in important respects with the account which Ms Norvill gave in her evidence, at [368]. After identifying the inconsistencies, the Judge concluded that “[a]t the very least, they cast some doubt on the reliability and credibility of Ms Norvill’s evidence”, at [377].

The content of the Crowe email

149    The full content of the Crowe email is as follows:

I’m writing because I have requested a meeting with both of you, and I’d like Serena to come too, on Monday morning to discuss a very sensitive matter.

The matter involves Eryn Jean Norvill and Geoffrey Rush. EJ asked me to meet her yesterday where she revealed that she was sexually harassed on multiple occasions by Geoffrey Rush during rehearsals and the season of King Lear.

This is the outline of what she told me;

In the beginning, she had heard rumours about Geoffrey’s behaviour in the past but believed she had a platonic, intellectual relationship with him, and didn’t feel the need to steer clear of him.

When rehearsals began, it started out with mild commentary of her in the room, suggestive comments and flirting. She used a few different strategies in the beginning, laughing it off, ignoring him, and trying to dissuade him. Once she felt uncomfortable, she directly said to him that his behaviour and comments were making her feel uncomfortable and she would like him to stop, which he didn’t. As they went into the theatre, things progressively got worse to where she felt quite afraid when she was backstage. Other members of the cast would have seen him touching her back stage, but didn’t do anything. At it’s (sic) worse (sic), when he had to carry her on as a dead body, he would grope her as he picked her up, and when she was lying on the stage ‘dead’, he would grope her with the hand that was upstage of the audience. At the closing night party at Walsh Bay Kitchen, she went into the bathroom and when she turned around Geoffrey was in there standing behind her. At this point EJ broke down, fell to the floor and told him to leave, he said nothing and left. This was the first time she saw some recognition in his face that he realised he had crossed a line.

I saw EJ about 5 minutes after this occurred on closing night, and could tell she was very upset. I asked her if she wanted to talk, and she said not tonight but soon. Knowing Geoffrey’s reputation I’m afraid I’d assumed he may have been the cause but didn’t want to push her at the time. I also knew she was going through some personal troubles at the same time, so thought it could have been unrelated. On the following Monday, I emailed EJ to check in with her, she still said she wasn’t ready to talk about it, but would come back to me if she changed her mind, and so I gave her the information of our staff counsellors and encouraged her to access the service if she felt the need. She told me last night she did use a few sessions with a counsellor there and it was somewhat helpful.

Most, if not all of the cast and crew would have witnessed this happening in rehearsals and in the theatre. But most concerning, EJ directly approached each of the 3 other females in the cast to get their advice, and they each brushed it off. She approached a few of the younger males in the cast but they said they didn’t know what she should do. She then approached Neil in her dressing room one evening and told her she was having difficulties with Geoffrey and was concerned about his behaviour, and Neil said he would talk to him, but the harassment continued. She did not approach Georgia Gilbert directly because she felt Georgia was already working two shows and didn’t want to burden her further.

I discussed all of the above with Serena this morning, and as I said, we’d both like to meet with you on Monday to speak further. I also spoke to Francisca (without naming names) to check whether I had an obligation as an employee to do anything specific with the above information, and she encouraged me to write to you both immediately. Francisca also said she would like HR included on the initial meeting so they are across the situation, but I’m not sure if initially it would be better to keep it to the four of us?

I’m sorry I’ve had to send this via email, but I thought it important you have this information as soon as possible.

The reception of the Crowe email into evidence

150    It is appropriate to record how Ms Crowe’s email came to be received in evidence. The Judge described these circumstances in [357]-[360] of his reasons.

151    The appellants had before the trial foreshadowed that they may call Ms Crowe to give evidence. For this purpose they had, in accordance with the pre-trial arrangements, served on Mr Rush a document containing an outline of the evidence they expected her to give and had sought (and had been granted) leave to issue a subpoena to secure her attendance. However, in the opening of the appellants’ case, their counsel did not commit to calling Ms Crowe, saying only:

[W]e may call Ms Crowe … but that depends on how the evidence unfolds.

152    Ms Norvill did not give any evidence in chief about her meeting with Ms Crowe. However, senior counsel for Mr Rush cross-examined her by reference to the content of the Crowe email. After some attempts to comply with s 44 of the Evidence Act, counsel tendered the email as a business record of STC, under s 69 of the Evidence Act. At the same time, the Judge rejected the appellants’ submission that the Crowe email should be excluded from evidence pursuant to s 135 of the Evidence Act. On the appeal, the appellants did not make any complaint about the Judge’s admission of the Crowe email into evidence.

The appellants’ submissions

153    As noted earlier, the sole complaint raised by the ground of appeal with respect to the Crowe email was that the Judge should not have relied on it as “a significant basis for his credit finding against Ms Norvill in circumstances [in which Mr Rush] did not call Ms Crowe, although she was available and subject to subpoena”.

154    It is pertinent to note with respect to this narrowly framed ground of appeal that the Crowe email came into evidence only after counsel for Mr Rush had, subject to calling evidence from Mr Spektor, Ms Russell and Mr Potter (whose evidence concerned only damages issues), closed the oral case for Mr Rush, so that the appellants could commence their case. Furthermore, it was the appellants who had issued the subpoena to Ms Crowe, not Mr Rush.

155    Despite the confined scope of this ground of appeal, the submissions on the appeal were somewhat more broad. The elements of the submission were as follows:

(i)    the Judge should have exercised caution in relying on the Crowe email as a basis for a finding that Ms Norvill had made a prior inconsistent statement, given the evidence of Ms Norvill in re-examination that she and Ms Crowe had met at a hotel for dinner, that they had “drank a lot”, that the meeting went for several hours, that Ms Crowe had not made notes during the meeting, that Ms Crowe’s email the following afternoon was short, did not purport to be a transcript of the conversation and was intermingled with Ms Crowe’s own commentary on Ms Norvill’s account;

(ii)    in these circumstances the Crowe email did not establish reliably any statement actually made by Ms Norvill on 5 April 2016;

(iii)    it had been open to Mr Rush to call Ms Crowe as a witness, and he had readily available the means to do so by calling on the subpoena to Ms Crowe issued by the appellants; and

(iv)    Mr Rush’s failure to call Ms Crowe to give evidence in circumstances in which she was available and compellable meant that the Judge should have inferred that her evidence would not have assisted Mr Rush, or that the position was at best neutral.

156    Apart from the submission concerning the Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference which it was said should have been drawn, as expressed in (iv) above, the appellants did not suggest that the error of the Judge for which they contended was one of law or principle. The submission instead was that the Judge had given the Crowe email a status which it did not warrant, by treating it as though it was a statement of evidence. There were two aspects to the submission: first, an attack on the reliability of the Crowe email as a record of what Ms Norvill had actually said and, secondly, an attempt to diminish both the existence and significance of the inconsistencies found by the Judge.

157    As to the first, counsel emphasised that the meeting between Ms Norvill and Ms Crowe had extended over about three hours, that Ms Crowe and Ms Norvill had consumed alcohol, and that Ms Crowe had not made any notes. We will return to the second shortly.

158    Having regard to these matters, the appellants submitted that the Judge had erred in finding that the Crowe email provided a basis for finding that Ms Norvill had made prior inconsistent statements reflecting adversely on her credit.

Consideration

159    The appellants’ submissions face a number of difficulties. The first is that each of the submissions now made concerning the use of the Crowe email had also been made to the Judge and was considered and addressed by him. The appellants did not point to any matter which had been overlooked by the Judge, nor did they point to any error in the Judge’s assessment of Ms Norvill’s evidence by reference to the Crowe email.

160    Secondly, the Judge’s reasons indicate that he did in any event exercise caution before making use of the Crowe email. His Honour did so by considering in detail the circumstances in which it had come into existence and the matters which bore on the reliability of Ms Crowe’s account. In doing so, the Judge noted the following matters about the Crowe email and the circumstances leading to it:

(a)    the meeting between Ms Norvill and Ms Crowe on 5 April 2016 had been instigated by Ms Norvill, seemingly for the purpose of reporting her allegations of sexual harassment by Mr Rush. That is to say, it had not been a purely social occasion, with the consequence that it could be inferred that Ms Norvill had taken some care to ensure that she gave an accurate account and, further, that Ms Crowe had taken some care to listen to, and understand, what she was being told, at [353], [365];

(b)    Ms Norvill had said in her evidence that what she had told Ms Crowe had been the truth, at [357];

(c)    it was reasonable to infer that Ms Crowe, as a senior STC officer, would have ensured that her report of what she was told by Ms Norvill was as accurate as possible. This was especially so given the “sensitivity” of the email’s subject matter and the seniority of the persons to whom she was providing the report, at [351]-[352], [366]; and

(d)    although Ms Crowe had described her email as conveying an “outline” of what she had been told by Ms Norvill, it comprised “a fairly detailed account”, at [354].

161    The Judge did not make the elementary mistake of regarding the Crowe email as the equivalent of a statement of evidence. He noted, more than once, that the email was not, and did not purport to be, a verbatim account of exactly what Ms Norvill had said, at [368], [377]. The Judge described the email only as “a fairly detailed account” of what Ms Norvill had told Ms Crowe and recognised the potential for minor (and insignificant) inconsistencies, at [377].

162    The entire extent of the evidence led at trial concerning the consumption of alcohol by Ms Crowe and Ms Norvill, which was in the re-examination of Ms Norvill, was as follows:

 Q:    Was it just drinks or did you have something to eat as well?

A:    It was over dinner. We were meeting for a dinner date. I think we may have had something to eat. Yes.

Q:    How long were you there with Ms Crowe; do you remember?

A:    I remember we were one of the last to leave, so I would say about three hours, maybe more.

Q:    About three hours, maybe more?

A:    Mmm.

Q:    And you talked – obviously had a lot of conversation in that time?

A:    Yes. We did.

Q:    Did you have a bit to drink, you and Ms Crowe?

A:    Yes. We did.

Q:    Did you drink a little, or a lot, or what?

A:    We drank a lot.

163    A number of matters can be noted about this evidence. First, although the answer that Ms Crowe and Ms Norvill had “drank a lot” is capable of conveying different things to different people, Ms Norvill was not asked to explain what she meant by “a lot”. Secondly, she was not asked about the amount of alcohol consumed by Ms Crowe relative to the amount consumed by her. Thirdly, she was not asked to indicate when, in the course of the three hour meeting, she had given her account of Mr Rush’s conduct to Ms Crowe. If that account had been given relatively early in the meeting (as may well have been the case given its seeming purpose), the potential for the alcohol consumption to have affected Ms Crowe’s recollection afterwards is likely to have been diminished.

164    The Judge referred expressly to “the implication” in the appellants’ submission that Ms Crowe’s consumption of alcohol may have affected her recollection so as to make the contents of the email unreliable, at [364]. His Honour said that he was not prepared to infer on the basis of the evidence of Ms Norvill set out above that the Crowe email was an inaccurate or unreliable account of what Ms Norvill had said, at [364]. The appellants did not point to any matter which could indicate error in that conclusion and, having regard to the matters to which we have just adverted, it would have been difficult to do so. Counsel for the appellants submitted only that the evidence concerning the alcohol consumption was one matter requiring caution before accepting the Crowe email as being reliable. The Judge recognised that that was so.

165    The Judge did not overlook that Ms Crowe did not make notes during the meeting. Like the Judge, we do not consider that that precluded Ms Crowe giving a reasonably detailed account, especially given the evident purpose of the email.

166    The appellants’ submissions did not indicate how Ms Crowe’s intermingling of her own commentary undermined the reliability of her account of Ms Norvill’s report to her.

167    Once the Judge accepted that the contents of the Crowe email were reliable as a report of the claims made by Ms Norvill, his use of the email as a source of prior inconsistent statements was orthodox.

168    A third difficulty for the appellants is that, although at the trial, their counsel initially submitted that a Jones v Dunkel inference could be drawn against Mr Rush in respect of his omission to call Ms Crowe as a witness, he ultimately accepted that such an omission was “a neutral factor” and did not ask for any such inference to be drawn, let alone identify that inference. There is an obvious difficulty in a contention that a trial judge erred by failing to draw an inference which the judge was not even invited to draw.

169    As noted, the second limb of the appellants’ submission sought to diminish the existence and significance of the inconsistencies between the Crowe email and Ms Norvill’s evidence. The Judge identified those inconsistencies as follows:

(a)    the account of Mr Rush’s conduct during the rehearsals which Ms Norvill had given to Ms Crowe was not nearly as serious as that which she had given in evidence. Ms Crowe reported Ms Norvill describing Mr Rush’s conduct when the rehearsals began as comprising “mild commentary of her in the room, suggestive comments and flirting”, whereas Ms Norvill’s evidence at trial was that Mr Rush’s conduct had included “repeated lewd groping and fondling gestures and sexual innuendo”, at [369];

(b)    in the Crowe email account, Ms Norvill claimed that she had told Mr Rush directly that his “behaviour and comments were making her feel uncomfortable and she would like him to stop” but he had not. In contrast, in her evidence, Ms Norvill said that, with one exception, she had not told Mr Rush that his comments were making her feel uncomfortable or that she would like him to stop. The exception concerned an incident towards the end of the production of King Lear when Mr Rush had touched her back. In her evidence, Ms Norvill said that she had asked Mr Rush to “[p]lease stop that” and that Mr Rush had complied, at [370];

(c)    in the Crowe email account, Ms Norvill said that other members of the cast would have seen Mr Rush touching her backstage but had not done anything. In contrast, the only instances of Mr Rush touching her backstage about which Ms Norvill gave evidence were those which occurred immediately before he carried her onto the stage in the final scene. Ms Norvill had not claimed that anyone else saw, or would have seen, those particular instances of touching, at [371];

(d)    in the Crowe email account, Ms Norvill said that Mr Rush “grope[d] her when he picked her up” to carry her onto the stage in the final scene, whereas Ms Norvill’s evidence at trial was that Mr Rush had touched her hand and back just before picking her up. The Judge described these two accounts as “somewhat inconsistent”, at [372];

(e)    in the Crowe email account, Ms Norvill described an incident at the closing night party in which Mr Rush had followed her into the bathroom. She said that, when she saw him, she had broken down, fallen to the floor, and told Mr Rush to leave, which he did without saying anything. Ms Norvill went on to say that this was the first occasion upon which she had seen some recognition in Mr Rush’s face that he had “crossed a line”. The Judge noted that Ms Norvill’s evidence at trial had not included any account of such an incident and that, when cross-examined, Ms Norvill had said that she did not believe that Mr Rush had followed her into the bathroom or that she had told him to leave. Ms Norvill said that she did not believe that she had told Ms Crowe that Mr Rush had engaged in such conduct, at [373];

(f)    the Crowe email recorded Ms Norvill saying that she had approached “each of the three other females in the cast to get their advice” and that each had “brushed it off”. The three female cast members were Ms Nevin, Ms Buday and Ms Thomson. The Judge said that the discussion which Ms Norvill claimed to have had with Ms Nevin could not be described as “a direct approach” and that Ms Nevin’s response (as recounted by Ms Norvill) could not be described as a “brush off”. We will refer to the response which Ms Norvill attributed to Ms Nevin later, when considering Ground 10(f). In her evidence at trial, Ms Norvill did not claim at all that she had approached Ms Buday in relation to Mr Rush’s behaviour. Although Ms Norvill did say in her evidence that she had had a conversation with Ms Thomson about Mr Rush’s behaviour, the Judge described her account of that conversation as “at best, equivocal or ambiguous”, at [374]. Ms Thomson did not give evidence in the trial;

(g)    the Crowe email recorded Ms Norvill saying that she had “approached a few of the younger males in the cast but they said they didn’t know what she should do”. In her evidence, Ms Norvill said that she had approached Mr Masters and Mr Winter. Mr Masters did not give evidence. Mr Winter, who did give evidence, did not refer to being approached by Ms Norvill about Mr Rush’s behaviour or telling her that he did not know what she should do about it, at [375]; and

(h)    the Crowe email recorded Ms Norvill saying that she had told Mr Armfield in her dressing room one evening that she was having difficulties with Mr Rush and was concerned about his behaviour; that Mr Armfield had said that he would talk to Mr Rush; but that the harassment had continued. The Judge accepted that Ms Norvill had given evidence about a discussion with Mr Armfield but noted that her evidence of that conversation differed from that described to Ms Crowe, at [376].

170    In the oral submissions, counsel for the appellants submitted that, with the exception of the bathroom incident, Ms Norvill had given evidence of each of the matters to which the Judge referred. However, the submissions on these matters were brief and made at a high level of generality. With the exception of the fourth matter (the groping before carrying her onto the stage), counsel did not attempt to address the details identified by the Judge giving use to the inconsistency. Having reviewed those details ourselves, we see no basis for error in the Judge’s conclusions, although we accept that the differences between the two accounts of Mr Rush’s conduct in picking up Ms Norvill are so minor as to be insignificant.

171    Counsel also sought to indicate that the differences may be explicable by reference to minor differences between the terms used by Ms Norvill and the terms used by Ms Crowe. One may accept that may be so. However, as the Judge noted, the differences were numerous and significant.

172    It is sufficient for present purposes to refer to only two of the inconsistencies identified by the Judge. First, Ms Norvill did not give any account in her evidence in chief or in her cross-examination of a conversation with Mr Armfield in her dressing room to the effect recounted in the Crowe email. She said only that Mr Armfield had on one occasion asked whether she was “in a good place”, and that she had assumed, even though Mr Armfield had not mentioned Mr Rush’s name, that he was speaking about Mr Rush. This was a markedly different account from that reported by Ms Crowe. We also note in passing that Mr Armfield was not cross-examined about any exchange he had with Ms Norvill in her dressing room, with the consequence that the account he gave in evidence in chief (which was inconsistent with Ms Norvill’s account), was not challenged.

173    Secondly, Ms Norvill acknowledged in her cross-examination that it was not correct to say that Mr Rush had entered the bathroom and said, further, that she had not told Ms Crowe that she had seen some recognition on Mr Rush’s face that he had crossed the line. One could accept that there was the potential for Ms Crowe to have misunderstood Ms Norvill as saying that Mr Rush had followed her into the bathroom rather than to the bathroom but it is not easy to accept that she could have misunderstood the remaining aspects of Ms Norvill’s account of that incident. Further, Mr Winter said that he too had been told by Ms Norvill that Mr Rush had followed her into the bathroom. That evidence militated against Ms Crowe having been mistaken about what she was told on the same topic.

174    For these reasons, we reject the appellants’ challenge to the Judge’s findings about the existence and significance of the inconsistencies. They were a matter properly taken into account by the Judge in the assessment of Ms Norvill’s reliability and credibility.

175    In our view, the appellants have not made good their complaints in Ground 10(b) and Ground 11.

176    Later in these reasons when addressing the appeal concerning the inclusion in the award of damages an amount on account of aggravated damages, we will refer to the appellants’ reliance on the Crowe email in preparing their defence of 1 February 2018 and their amended defence on 19 February 2018. We do not regard our findings in that context concerning the appellants’ use of the Crowe email as inconsistent with the conclusions just reached on these grounds of appeal.

The differences between Ms Norvill’s evidence and her pre-trial statement of evidence (Ground 10(c))

177    Ground 10(c) is principally a challenge to the use which the Judge made of differences between Ms Norvill’s evidence at trial and the content of her statement of evidence on which the appellants had relied when seeking leave to amend their defence of justification. However, the Ground also complains that, while the Judge had said that he would take into account the difficulties often experienced by persons making complaints of sexual assault or harassment in reporting their claims and in giving evidence, his reasons did not indicate that he had in fact done so.

178    In order to provide the setting for consideration of this Ground, it is necessary to record some further aspects of the Judge’s reasons.

179    The Judge commenced his assessment of the credibility and reliability of Ms Norvill’s evidence by noting the difficult position in which she had been placed: when she had first raised her concerns with the STC, she had not sought to make a formal complaint; had not sought to speak publically about her experience; had not expected to give evidence; had sought to keep her identity withheld; was not a party to the proceedings; had no vested interest in its outcome; and was not a willing participant in the proceedings, at [327]. The Judge recorded that Ms Norvill had been “essentially dragged into the spotlight because of the actions of [the appellants]”, at [327].

180    The Judge then noted the difficulties often experienced by persons making complaints of sexual assault or sexual harassment:

[328]    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. Giving evidence in public about often highly personal and sensitive issues can often be difficult and stressful. The stress involved in giving evidence about such matters is often exacerbated by the process of cross-examination. Often the events the witness is required to remember are themselves distressing and painful, or occurred during a traumatic period of the witness’s life. Often the witness is required to give evidence some considerable time after the events in question. That sometimes means that the witness’s recollection can at times appear vague and uncertain. 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 in assessing Ms Norvill’s evidence.

(Emphasis added)

181    Having made these general observations and noted their applicability to Ms Norvill’s circumstances, the Judge went on to describe her presentation as a witness in the manner set out earlier, namely, that she generally presented as an “intelligent, articulate and confident witness who was endeavouring to give an honest recollection of the events in question”, at [329]. The Judge also recorded that Ms Norvill had, for the most part, given direct and responsive answers to questions, including during cross-examination, and had not appeared to be either nervous, uncertain or evasive, at [329].

182    In the paragraphs of the reasons which immediately followed, the Judge identified the particulars matters about Ms Norvill’s evidence which had raised concerns in his mind about her credibility and reliability. Two of these have already been addressed, namely, Ms Norvill’s contemporaneous statements to journalists and the statements attributed to her in the Crowe email.

183    The third matter concerned the statement which Ms Norvill had signed on 13 August 2018 for the purpose of providing an outline of the evidence which she would give in the proceeding. The Judge noted, first, Ms Norvill’s evidence about the preparation and provision of the statement. In summary, this was that Ms Norvill had prepared the statement, that it had been developed in several drafts over the weeks before she signed it, that she wanted it to be accurate and complete, that she had had the assistance of a solicitor (not one of the appellants’ solicitors) in the preparation of the statement, that she had read it carefully before signing it, and that its contents were true, at [334].

184    Although the statement of evidence was not tendered as an exhibit at the trial, Ms Norvill was cross-examined by reference to its contents. On the basis of that cross-examination, the Judge noted six matters about which Ms Norvill gave evidence in the trial but which were not “for the most part” outlined in the statement:

(i)    Mr Rush using the words “scrumptious” and “yummy” in his descriptions of her;

(ii)    Mr Rush’s conduct in making hourglass shapes with his hands, licking his lips, bulging his eyes, growling and sticking his tongue out during rehearsals;

(iii)    Mr Rush making lewd gestures and comments to Ms Buday and Ms Thomson;

(iv)    the entire rehearsal room being, (or believed by Ms Norvill to be) complicit in, or enabling of, the behaviour of Mr Rush which she described;

(v)    the account of a conversation with Ms Nevin in Ms Nevin’s dressing room during the production (later in 2016) of All My Sons in which she claimed to have told Ms Nevin that she had been sexually harassed by Mr Rush during King Lear; and

(vi)    Mr Rush having stood close to her during the bows at the end of King Lear, such that another actor had taken upon himself to stand between them.

185    The Judge then recorded Ms Norvill’s explanation for her statement of evidence not having included reference to some of the incidents or circumstances about which she gave evidence:

[336]    Her evidence in that regard was that, after she signed her statement she thought about “things” more often and that, as a result, she “remembered things that [she] hadn’t before” …

186    The Judge said of that assessment:

[336]    … That could perhaps amount to a reasonable explanation if the additional “things” were relatively few in number and relevantly minor in importance or significance. The problem, however, is that the additional “things” were not few in number and were not of minor significance.

187    In the submissions on the appeal, the appellants’ counsel did not contend that the Judge had made any error of his assessment of the matters about which Ms Norvill had given evidence but which had not been mentioned in the statement of evidence. Instead, a two-fold submission was made:

(a)    it was not apparent that the Judge had, when making his assessment of the significance of the differences between Ms Norvill’s evidence and her statement, taken into account the difficulty experienced by those reporting sexual assault or sexual harassment to which he had earlier adverted; and

(b)    the Judge had failed to take into account that the statement was intended only as an outline of Ms Norvill’s evidence, and was not in a form of an affidavit or a statement of her evidence in chief.

188    Counsel submitted in addition that the appellants’ solicitors and counsel had not had any involvement with the preparation of Ms Norvill’s statement at the time of the application to amend the defence. We will refer to the evidence and submissions again when addressing the appellants’ complaints concerning matters of aggravation but indicate now that we accept that that was so. However, it remains the case that Ms Norvill’s statement of evidence had, on her own account, been prepared with some care, including with the assistance of experienced solicitors, and she had wanted it to be both complete and accurate.

189    It may be the case, as counsel for Mr Rush acknowledged, that the Judge did not later refer again expressly to the difficulties which those complaining of sexual assault or sexual harassment may experience. We have said “may be” because it is possible that the Judge’s acceptance in [336] that Ms Norvill’s explanation could be reasonable if the additional matters were relatively few in number and relatively minor in importance or significance, reflects his Honour’s acknowledgment of the circumstances to which he had referred in [328]. However, even if that not be so, it is a matter of no consequence. It could not reasonably be inferred that, the Judge having referred expressly to difficulties experienced by complainants in [328] of his reasons, then overlooked them, or took no account of them, in the assessment of Ms Norvill’s evidence which he recorded in the reasons only eight paragraphs later, at [336]. It was not necessary for a judge to keep referring to a general matter bearing on the assessment of the evidence when it has been addressed earlier in the reasons.

190    The difficulty for the appellants is, as the Judge noted, that the additional matters to which Ms Norvill referred in her evidence were not few in number and were not of minor significance. All of the additional matters identified by the Judge, with the possible exception of the first, appear to have been significant, especially as the second, third and sixth were matters capable of observation by all members of the cast. The suggestion that the entire rehearsal room had been complicit in, or enabling of, Mr Rush’s behaviour was an allegation concerning conduct, or at least, acquiescence of the entire cast. Plainly, these were matters of significance.

191    In our view, no error in the Judge’s reasoning has been demonstrated. Ground 10(c) is rejected.

The social interactions between Mr Rush and Ms Norvill (Ground 10(d))

192    The fourth general matter which the Judge said gave rise to concerns about the credibility and reliability of Ms Norvill’s evidence was her participation in contemporaneous social interactions with Mr Rush which were seemingly inconsistent with the conduct of Mr Rush, and her feelings about that conduct, at [337]. The Judge referred to three such interactions. His Honour said that he did not regard Ms Norvill’s explanation of her conduct in these interactions as “particularly persuasive”, at [338].

193    The first was the evidence that, about a month after the commencement of rehearsals, Ms Norvill had attended the performance of the play Orlando with Mr Rush, his daughter and Mr Winter. Before the play, Ms Norvill had had dinner with Mr Rush and Mr Winter and had shared an Uber with him.

194    The second was that, while King Lear was running, Ms Norvill had invited Mr Rush to a Christmas party at her parents’ home. The evidence did not disclose the date of the Christmas party but we understand it to have been very proximate to 25 December 2015.

195    The third was Ms Norvill’s affectionate description of Mr Rush in an email only two days before the last performance of King Lear.

196    By Ground 10(d), the appellants contend that the Judge had been in error in relying on the social interactions as a ground for doubting the reliability of Ms Norvill’s evidence and had erred in finding that her explanations were “not particularly persuasive”.

197    Counsel submitted that Ms Norvill’s explanations were “surely compelling” and that the Judge’s reasons indicated a failure on his part “to appreciate the delicate and difficult situation Ms Norvill found herself in”. In the oral submissions, counsel referred to Ms Norvill’s explanation for inviting Mr Rush to the Christmas party, contending that it indicated that it had come about because her hand had, in effect, been forced. The effect of the submissions was to invite the Court to evaluate afresh the evidence concerning the social interactions and to form its own conclusions about the reasonableness of Ms Norvill’s explanations. We note that the Court is asked to do so without the advantage which the Judge had of seeing and hearing both Ms Norvill and Mr Rush as they gave their evidence about these matters.

The evidence concerning the play Orlando

198    The only evidence which Ms Norvill gave about attending the play Orlando was in her cross-examination. She confirmed that she had gone with Mr Rush and Mr Winter to the play on 13 November 2015 and confirmed that she had had dinner with them immediately beforehand. Ms Norvill did not provide any explanation for having done so. This seems surprising as the first incident on which the appellants relied for the defence of justification was alleged to have occurred before that time, and the conduct said to comprise the second and third matters was said to have at least commenced before that time.

The evidence concerning the Christmas party

199    Mr Rush said that he could not recall how he had been invited to the Christmas party, saying that it was either via some friends of his who were visiting from overseas who Ms Norvill had invited or via Mr Masters. He said “there’s no way I would have attended if I hadn’t been officially invited or it was a Christmas party for strays …”. In his cross-examination, Mr Rush confirmed his belief that he had been invited by Ms Norvill, saying that the invitation had been implicit in Ms Norvill’s invitation to his overseas guests, in his presence, to attend. He described it as “a group invitation”.

200    In her evidence in chief, Ms Norvill said that she had not invited Mr Rush to the Christmas party “[b]ecause I didn’t want him to meet my family, and he wasn’t my friend anymore”.

201    In her cross-examination, Ms Norvill gave this evidence:

XXN:    You told his Honour yesterday about your Christmas party 2015, that you hadn’t invited Mr Rush, didn’t you?

A:    No. I personally invited a bunch of people that were interstate and some of my closer friends in the company, but I hadn’t invited Mr Rush personally. No.

XXN:    You see you actually did invite Mr Rush in front of Georgie Gilbert, didn’t you?

A:    We met – I remember there were a bunch of [us] leaving after a show. We were leaving in the halls. We met Geoffrey in the halls and Georgia may have been there. He mentioned the party, as there was a crowd of people, and also I didn’t want to make him feel uncomfortable, so yes, I said it. He said, “I heard about your Christmas party” and I said “Come. If you have to come. Yes, come”.

XXN:    You see what actually happened was – so we can take it from what you just said that you actually did invite Mr Rush?

A:    He asked if he could come. Yes.

XXN:    And you said yes?

A:    Yes. I was polite. Yes.

XXN:    And also, in fact, what actually occurred was that Mr Rush had some friends, I think the Adaires, visiting from overseas, and you invited them to the Christmas party in front of Mr Rush, didn’t you?

A:    I don’t remember that. But yes, they came. They were lovely.

The evidence concerning the 7 January email

202    Before noting the evidence concerning the exchange of emails on 7 January 2016, it is appropriate to note the Judge’s finding (which was not in contest) that, before King Lear, Mr Rush and Ms Norvill had a good relationship and were on familiar terms, at [250]. Several of their text messages evidencing that relationship were in evidence, of which the Judge said:

[250]    Those texts are playful, humorous and somewhat cryptic in content. They employ homophones for their respective names.

203    In the early hours of 7 January 2016, Mr Rush forwarded onto Ms Norvill an email which he had received from the writer Andrew Bovell who had been in the audience for the performance of King Lear on 6 January. Mr Bovell’s email included the statement “[i]n a show with so many strong elements it was the relationship between Lear and Cordelia that struck me and held me throughout”. In an email to Ms Norvill forwarding on Mr Bovell’s email, Mr Rush said:

Hi darling Eedge. FYI thought you should read this from writer Andrew Bovell ....

xo “Daaad”

204    Ms Norvill responded saying:

That was wonderful.

Thanks for sending it through Dearest Daddy DeGush.

xoxo

205    Mr Rush explained that Ms Norvill would occasionally refer to him as “Daaad” in rehearsals, as a playful way of expressing their father-daughter relationship in the play. Ms Norvill gave evidence to like effect.

206    In her evidence in chief, Ms Norvill explained the use of the term “Dearest Daddy DeGush”:

XN:    When you got that email, what did you think as regards responding to it? What did you think your options were?

A:    I thought that I could write to him and tell him how I felt, how upset he had made me and how I thought that his behaviour had compromised me. I could not write to him or I could write him a short, polite, concise email and keep it normal and pretend that it wasn’t happening.

XN:    And which one of those options does your response represent?

A:    The last one.

XN:    And was there reason why you decided to, in fact, respond and send him the polite, concise response? What was in your mind?

A:    I guess I was in survival mode. I wanted to get to the end of the show. We were nearly there. I had two shows to go. I was very frightened. I didn’t want to risk the performance. I guess I chose to put Geoffrey’s comfortability above my own. Yes. I – I just thought I – I could keep going, I have come this far, and I felt trapped by my own silence, I guess.

207    Ms Norvill had also used the term “DeGush” in an email to Mr Rush on 2 June 2014, in which she referred to him as “Generous DeGush”. Ms Norvill also said that she had called Mr Rush “DeGush” a lot.

208    In cross-examination, Ms Norvill said that she was “not proud” of her response on 7 January, that she had been “trying to keep it normal”, and that she had not been sincere in sending the email. She acknowledged that the word “Dearest” was a term of deep affection and that her ending “xoxo” was affectionate. Ms Norvill agreed that it had been “quite a loving email”. She explained that she could not have responded more formally:

It would have caused complete tension. No, I couldn’t have done that. I felt like it would’ve disrupted the performance. I had two days to go. I was in survival mode. I am not proud of this, but I can’t apologise for something – for coping mechanisms.

Consideration

209    As previously indicated, the appellants’ submissions amounted to an invitation to this Court to consider afresh the evidence just recounted and to make its own assessment of it, rather than identifying any piece of evidence overlooked by the Judge or misunderstood by him. We have made that assessment, doing the best we can on the basis of the printed record.

210    The Judge was in error in characterising Ms Norvill’s explanation for going to dinner with Mr Rush and attending the play Orlando as unpersuasive, as she had not provided any explanation at all.

211    However, in our view, there is some prima facie implausibility in Ms Norvill having accompanied Mr Rush to dinner and to the play Orlando, given her claim about the first incident. It will be recalled that Ms Norvill said that she had felt “belittled and embarrassed and … ashamed” by his behaviour in that incident. Moreover, on Ms Norvill’s account, the second and third aspects of Mr Rush’s conduct relied upon by the appellants must have commenced before that evening and she said that that behaviour had made her feel “compromised”. It seems implausible that Ms Norvill would have wished to be in the company of a person who made her feel that way longer than was necessary, had in fact the conduct she alleged been occurring. One can speculate, on the hypothesis that the conduct alleged had occurred, that Ms Norvill was in a difficult and possibly conflicted position, or that there had been some pre-arrangement to attend Orlando after a dinner beforehand from which she found it difficult to withdraw. But Ms Norvill did not proffer explanations of these kinds. In our view, on the evidence as it stood, the Judge was entitled to regard it as surprising that she would have participated in the social outing had the conduct she was describing been occurring.

212    In relation to the invitation to the Christmas party, there was an obvious inconsistency between Ms Norvill’s evidence in chief that she had not invited Mr Rush at all and her evidence in the cross-examination that she had done so in order not to be ungracious. There is also the oddity involved, on her account, of her inviting Mr Rush’s overseas visitors to the party, but not Mr Rush himself. It is understandable in these circumstances that the Judge did not regard her explanation as “particularly persuasive”.

213    Like the Judge, we have difficulty understanding why Ms Norvill responded to Mr Rush’s email of 7 January 2016 using the term of endearment which she did if he had been behaving towards her in the manner she described. One may well accept that, if the conduct described by Ms Norvill was occurring, she had nevertheless been intent, in the interests of the performance of King Lear as a whole and in the interests of cordiality, to maintain appearances in her relationship with Mr Rush. We accept that there was a power imbalance in the relationship between Mr Rush and Ms Norvill. It is also appropriate to take into account the difficulties commonly experienced by those who have suffered sexual harassment in reporting the conduct. Those difficulties can be of diverse kinds and are sometimes found in the conflicting emotions, loyalties and interests of the complainant. However, even having regard to those matters, it is difficult to understand that they may explain the very affectionate (if not effusive) terms of Ms Norvill’s response to the email.

214    Like the Judge, we consider that Ms Norvill’s contemporaneous conduct did give cause to question the reliability of her account of the incidents on which the appellants rely.

215    Moreover, Ms Norvill’s explanation that she had been trying to keep it “normal” seems inconsistent with her evidence that after the fifth alleged incident (the touching of her breast during one of the preview performances) she had kept her distance from Mr Rush, including by staying in her dressing room or in the stage management office. Had that been occurring, it seems likely that Mr Rush would have noticed in any event that her attitude towards him had changed.

216    The Judge’s assessment that Ms Norvill’s responses were not “particularly persuasive” were in part credibility-based. When that is taken into account, together with the matters to which we have just referred, there is no basis on which this Court could uphold this complaint in Ground 10.

The assessment and use of Mr Winter’s evidence (Grounds 10(e) and 12)

217    Having identified the four matters which are the subject of Grounds 10(a)-(d) in the Notice of Appeal as giving cause for doubting the reliability and credibility of Ms Norvill’s evidence, the Judge then referred to the absence of support for her claims in the other evidence adduced at the trial, saying:

[339]    [T]he most telling circumstance against the acceptance of much of Ms Norvill’s evidence is that it is simply not corroborated or supported by the balance of the evidence. Indeed, for the most part, Ms Norvill’s evidence was specifically contradicted by evidence given by the other relevant witnesses, in particular, Ms Nevin, Ms Buday and Mr Armfield. Even Mr Winter’s evidence, when closely analysed, provided little support for Ms Norvill’s version of events. The absence of corroboration and the inconsistencies between Ms Norvill’s evidence and the evidence given by other witnesses will become apparent during the detailed consideration of the evidence which follows. This feature of the evidence, considered as a whole, provides the most compelling reason to doubt Ms Norvill’s credibility and the reliability of her evidence generally.

218    Ground 10(e) challenges the Judge’s conclusion in [339] concerning Mr Winter’s evidence. It asserts that the Judge had accepted at [385] Mr Winter’s description of Mr Rush’s gestures as “boob squeezing” and that that acceptance was inconsistent with the Judge’s conclusion at [339] that Mr Winter’s evidence provided little support for Ms Norvill’s version of events.

219    Counsel submitted that Mr Winter’s evidence had been corroborative of Ms Norvill’s evidence concerning the first and fifth incidents on which the appellants relied for the defence of justification.

220    Ground 12 seeks to impugn the Judge’s statement in [389] that it appeared that Mr Winter’s recollection of the first alleged incident had been prompted by something said at a conference he attended with lawyers for the appellants and the lawyers for Ms Norvill which occurred shortly before he gave his evidence.

The evidence concerning the first incident

221    As already seen, the first incident alleged was the action of Mr Rush in simulating the groping and fondling of Ms Norvill’s breasts during the rehearsal of the final scene of King Lear.

222    Ms Norvill’s account of the first incident was as follows:

A:    I was lying on my back on the floor, and I remember Geoffrey had stopped talking. He was delivering a monologue, grieving over the – the death of Cordelia and he had stopped talking. I don’t remember whether he was looking for a line or whether Neil was giving him a note. I had my eyes closed and I remember hearing, like, titters of laughter, murmuring responses around the – around the rehearsal room. And I – I opened my eyes and Geoffrey was kneeling over me and he had both of his hands above my torso, and he was stroking – gesturing, stroking up and down my torso and gesturing – groping or cupping above my breasts, and he was looking up to the front of the room and kind of raising his eyebrows and bulging his eyes and smiling and licking his lips.

XN:    All right. And did – do you recall whether Mr Armfield said something at that point?

A:    Yes.

XN:    What did he say?

A:    I heard Neil say “Geoffrey, stop that.”

XN:    And what was the tone? What was Mr Armfield’s tone? By that I mean was it amused, was it not amused? What was the tone of - - -?

A:    It was reprimanding and angry. He – he sounded angry.

XN:    And when you opened your eyes and saw what Mr Rush was doing, how did that make you feel?

A:    I felt shocked. I guess I was confused. I mean, to Geoffrey – I considered Geoffrey a friend. I felt belittled and embarrassed and was, I guess, ashamed.

XN:        After Mr Armfield said what he said, what did Mr Rush do?

A:        He stopped.

XN:    Right. And what about the sort of tittering and so on, did that – what happened with that?

A:    It stopped.

223    Mr Winter’s evidence in chief about this incident was as follows:

XN:        Do you remember an incident happening in the rehearsal period? …

A:    I’m not sure whether I would – there’s two things I remember about the rehearsal of that scene. I’m not sure whether I would describe either as incidents, in my opinion. They were things that occurred. The first being that there was in a rehearsal day where Geoffrey was doing a bit of a skit over EJ when she was lying on the floor of the stage. I was talking to somebody at the time. This is probably the vaguest of my recollections. The skit – it was, like, a Three Stooges-y type bit, if you will. I can’t describe for you the whole thing, but it was sort of a sequence of quick jokes, and then there was like a “ngya” at the end, like …

XN:    Well …?

A:    … Making, like, a – a – a jokey gesture at the end.

XN:    Right. What was the gesture?

A:    Well, that was the gesture, I guess, a – a boob-squeezing gesture.

XN:    Where was Mr Rush standing when he did it?

A:    Well, they were in the positions that they were in for those final moments of the play. Should I talk about the other – did you want to talk about that more or …

XN:    Have you given all your recollection about the incident that you just described?

A:    That’s pretty much all I can remember. I know that people laughed. As I say, I was talking to somebody at the time, so I sort of tuned into it late. But that – that’s about all I can say about that.

The assessment of Mr Winter’s evidence concerning the first incident

224    In the section of his reasons containing his general observations about the credibility of the witnesses, the Judge said of Mr Winter’s evidence concerning the first incident:

[346]    … In summary, the following features of [Mr Winter’s] evidence are worth noting. First, Mr Winter essentially accepted that his recollection of those events was vague. Second, Mr Winter’s description of those events, for the most part, was not entirely consistent with Ms Norvill’s evidence. Third, the rather matter-of-fact way in which Mr Winter gave his evidence of those incidents, and the inconsistency between Mr Winter’s description of the incident and his otherwise positive views about how Mr Rush “led the company”, cast some considerable doubt on the reliability of Mr Winter’s evidence generally.

225    Later, when making his detailed findings concerning the first incident at [386]-[389], the Judge recorded the following matters about Mr Winter’s evidence. First, Mr Winter himself had described it as the “vaguest of [his] recollections”. Secondly, Mr Winter had not referred to the incident in the written outline of evidence served prior to the trial and the Judge did not consider that a satisfactory or persuasive explanation had been provided for its omission. Thirdly, Mr Winter’s recollection of the incident appeared to be belated, having apparently raised it for the first time during the conference which he attended on the eve of the trial with the appellants’ and Ms Norvill’s lawyers. Fourthly, the incident described by Mr Winter was not entirely consistent with, and not nearly as serious as, the event described by Ms Norvill. Fifthly, Mr Winter had not thought much of the incident at the time. Finally, the Judge considered that if Mr Winter had in fact witnessed the event described by Ms Norvill, it was difficult to see that he could not have regarded it as entirely inappropriate conduct by a senior actor. Yet Mr Winter had described Mr Rush as an “exemplary company leader” who had “led the company well” and had taken on the role of company leader “with great enthusiasm”. The Judge said that he regarded it as difficult to understand how Mr Winter could have held those views about Mr Rush if he had in fact witnessed the incident described by Ms Norvill.

226    The Judge did not regard Mr Winter’s evidence as providing corroboration of Ms Norvill’s account of the first incident for two reasons: first, there were material differences in the two accounts and, secondly, he did not in any event regard Mr Winter’s evidence as credible or reliable:

[462]    … Mr Winter’s evidence provided no real corroboration of Ms Norvill’s account of this incident. The “jokey” and, to his mind, fairly insignificant incident that he said that he recalled was of a quite different nature and character to the incident described by Ms Norvill. In any event, for the reasons that have already been touched on, I am not satisfied that Mr Winter’s evidence concerning this incident was either credible or reliable. He described his recollection as vague. He did not refer to this incident in his outline of evidence. His recollection appears to have been prompted as a result of what was said in a conference shortly before he gave evidence. That conference occurred almost three years after the incident in question. Mr Winter plainly did not think much of the incident at the time. He did not say that he spoke with Ms Norvill about it. It does not appear to have affected his positive attitude towards Mr Rush. It is difficult to see how that could be the case if the incident as described by Ms Norvill had in fact occurred.

The appeal submissions

227    In the submissions on the appeal, counsel contended that Mr Winter’s description of Mr Rush’s conduct as being like a “Three Stooges-y type” skit was “completely consistent” with Ms Norvill’s evidence that she had seen Mr Rush “raising his eyebrows and bulging his eyes and smiling and licking his lips” while engaging in the simulated groping and fondling of her breasts, although not as detailed. Counsel also noted that both had described laughter by those around Mr Rush and Ms Norvill. The submission was that the Judge had overlooked these features of the evidence.

228    Counsel submitted that the Judge’s finding, at [389], that the first time Mr Winter had told anyone about Mr Rush’s Three Stooges-like conduct was during the conference with the lawyers of the appellants and the lawyers for Ms Norvill (Ms Ward and Mr Zwier from the firm Arnold Bloch Liebler) on the eve of trial was wrong. Counsel relied for this submission on an answer of Mr Winter when it was suggested to him that he had raised the Three Stooges-like conduct of Mr Rush for the first time in the conference with the appellants’ and Ms Norvill’s lawyers on the eve of trial:

XXN:    And that’s when you said for the first time to anyone this incident about the Three Stooges, isn’t it?

A:    No. I said it was raised that there was some clowning, and I said, “Yeah. There was that thing that happened,” but that’s all I can really say about it.

229    Counsel also submitted that the Judge’s statement that Mr Winter’s recollection appeared “to have been prompted as a result of what was said in a conference shortly before he gave evidence” was “an obliquely expressed finding that Mr Winter [had been] coached”. He said that there had been no suggestion to that effect at the trial with the consequence that the appellants had not been able to respond to it. This complaint was made in Ground 12 of the Notice of Appeal.

Consideration

230    There are a number of difficulties with the appellants’ submissions on these Grounds. The first is that they relied more on Mr Winter’s characterisation of Mr Rush’s conduct as a Three Stooges style skit than it did on Mr Winter’s evidence of the actual movements of Mr Rush. Obviously enough, the characterisation of Mr Rush’s conduct as Three Stooges-like was capable of encompassing a diverse range of spoken words, movements, gestures and facial expressions. But the only action of Mr Rush described by Mr Winter was the “jokey gesture at the end” which he described as “a boob-squeezing gesture”. His account was no more detailed than that. Ms Norvill described much greater movements, “gesturing, stroking up and down my torso … groping or cupping above my breasts”, as well as Mr Rush, in effect, playing to his audience with his facial expressions. The explanation may lie in the fact that Mr Winter’s attention was elsewhere, as he was talking to someone else, but his account did not correspond with that of Ms Norvill in several material respects.

231    Secondly, Mr Winter described Mr Rush giving “a sequence of quick jokes” before the “boob-squeezing” gesture. He was not asked to give any details about the jokes, but it seems that he was describing jokes which were spoken, rather than implied from conduct. Ms Norvill’s account did not include any mention of jokes of this kind. On the contrary, her description suggests that Mr Rush had been silent, as he had stopped his monologue, as though looking for a line or receiving a note from Mr Armfield.

232    Thirdly, while Mr Winter’s attention may have been distracted, his account of the boob-squeezing gesture suggests that it was very brief, which is not consistent with Ms Norvill’s account.

233    Fourthly, Mr Winter’s account did not include any mention of the admonition or reprimand from Mr Armfield described by Ms Norvill.

234    In these circumstances, there was a proper basis on which the Judge could conclude that Mr Winter was describing an incident of a different nature and character from that described by Ms Norvill. We add that there was no suggestion that there had been two or more incidents of the same general character, with the possibility that Ms Norvill was describing one such incident and Mr Winter another.

235    Contrary to the assertion in Ground 10(e), the Judge did not in [385] “accept” Mr Winter’s description of Mr Rush’s gestures as “boob-squeezing”. The Judge was doing no more than repeating the term which Mr Winter had used.

236    Next, we consider that the appellants’ challenge to the Judge’s conclusion that Mr Winter had raised the account of Mr Rush’s Three Stooges-like conduct only belatedly has not been made good.

237    The appellants’ submission seemed to be premised on an understanding that the Judge had made a positive finding that Mr Winter had mentioned the Three Stooges-like conduct for the first time only in the pre-trial conference with the lawyers. However, the Judge’s finding was more circumspect:

[389]    Third, and related to the second point, it would appear that Mr Winter’s recollection of the incident was a very belated recollection. The first time Mr Winter told anyone about his recollection of this incident was apparently during a conference he attended on the eve of the trial with Nationwide and Mr Moran’s lawyers. That conference was also attended by Ms Norvill’s lawyers. It appears that Mr Winter’s recollection of the event was prompted by someone else who was present at the conference …

(Emphasis added)

238    When discussing Mr Winter’s evidence in [462], set out earlier in these reasons, the Judge said:

[Mr Winter] did not refer to this incident in his outline of evidence. His recollection appears to have been prompted as a result of what was said in a conference shortly before he gave evidence. That conference occurred almost three years after the incident in question …

(Emphasis added)

239    Putting that point to one side, it is true that, in the passage of evidence on which the appellants relied, Mr Winter commenced his answer to the suggestion that he had mentioned the Three Stooges-like conduct for the first time in the conference before the trial with the word “No”. It seems, however, that the transcription of this evidence may not convey accurately the way in which it was given. It appears that Mr Winter commenced one sentence with the words “I said” but did not continue with it. Instead, he commenced a separate sentence with the words “it was raised …”. He seems thereby to have qualified his initial negative response to the suggestion.

240    As we understand it, Mr Winter was testifying that, at the meeting, one or other of the solicitors had raised the topic of “clowning” and that he had then told those at the meeting about the Three Stooges-like conduct to which he had referred in his evidence.

241    In any event, the answer of Mr Winter should be read in conjunction with the evidence which he had given only shortly before the question and answer on which the appellants now rely, namely:

XXN:    [I]n fact, the first time, I wish to suggest to you, that you’ve ever raised the Three Stooges business is in the last week, Mr Winter. Do you agree with me or not?

A:    The first time with who?

XXN:    The first time that you ever told anyone about it in the last week?

A:    Well, I’ve only really been discussing it with people in the last week, aside from this conversation. Like I said before, I was in a conversation at the time when that happened. I admitted to the judge that that is the vaguest of my recollections, but I do recall it, and I stand by that.

(Emphasis added)

242    Earlier, Mr Winter had seemed to acknowledge that he had not referred to Mr Rush’s Three Stooges-like conduct in the outline of the evidence he was expected to give which the appellants’ solicitors had exchanged before the trial.

243    In our view, the Judge was entitled to conclude on the basis of this evidence, taken as a whole, that Mr Winter’s reference to the Three Stooges-like conduct had been belated. That is especially so given the absence of reference to it in the outline of evidence, that being a place in which one would have expected it to have been mentioned. Further, although asked twice about when he had first mentioned the Three Stooges-like conduct, Mr Winter referred only to the pre-trial discussion with the lawyers.

244    We turn to the appellants’ complaint that the Judge had made a finding of witness coaching. This complaint was based on the Judge’s statement at [389] that Mr Winter’s recollection appeared to have been “prompted” at the conference with the lawyers on the eve of the trial.

245    The appellants submitted that the Judge had thereby made a finding that Mr Winter had been coached without that being raised at trial and therefore without the appellants having had the opportunity to respond to it. This was, in effect, a complaint of denial of procedural fairness.

246    In our view, this submission is based on a misunderstanding of the Judge’s reasons. A finding that a witness’ evidence on a topic had been prompted by a statement made out of court is plainly of a different character from a finding that the evidence of a witness is the result of coaching. The latter has connotations of the evidence being rehearsed with the witness or of suggestions being made to the witness as to what he or she should say in the evidence. The former usually involves no more than a witness’ attention being drawn to a particular topic to see what he or she can say about it.

247    It is just not to be expected that the Judge intended the serious finding that the solicitors for the appellants or the solicitors for Ms Norvill had engaged in the “coaching” of Mr Winter. The passage in [389] on which the appellants rely cannot reasonably be understood as being to that effect. We reject the appellants’ submission to this effect.

248    Independently of all these matters, there is the fact that the Judge, who had the advantage of seeing and hearing Mr Winter’s evidence, did not regard his evidence concerning the first incident as either credible or reliable. That is to say, Mr Winter’s evidence about the first incident was not accepted. That being so, it could not have been corroborative or supportive of Ms Norvill’s account: see in an analogous context R v Sorby [1986] VR 753 at 780-1. Further, the Judge’s assessment of Mr Winter’s evidence was in part a demeanour-based finding. The circumstances in which this Court could interfere with that finding are, for the reasons given earlier, limited. The appellants’ submissions did not point to any matter which would warrant a finding that the Judge’s conclusions were “glaringly improbable”, “contrary to compelling inferences” or inconsistent with matters which were established incontrovertibly.

249    In summary, we consider that, having regard to the differences in the evidence of Ms Norvill and Mr Winter, and to the advantages of the Judge who saw and heard the evidence as it was given, there is no basis on which this Court could find that the Judge’s conclusion that Mr Winter’s evidence provided no real corroboration of Ms Norvill’s account of the first incident was erroneous.

The evidence concerning the fifth incident

250    The fifth matter relied on by the appellants for the defence of justification was Mr Rush’s conduct during a preview performance of King Lear in deliberately touching Ms Norvill’s breast. The appellants’ complaint was that the Judge had been wrong in not accepting Mr Winter’s evidence as confirmatory of that of Ms Norvill.

251    Ms Norvill’s account in evidence in chief of the fifth incident was as follows:

A:    I remember Geoffrey placed his – I had my eyes closed, Geoffrey placed his hand on my – my face, and then his other hand touched under my armpit or just near my armpit and stroked down my – across my right side of my right breast and onto my hip.

XN:    You’ve made some hand motions there. How far up – you describe this very well – you said the right side of your right breast?

A:    That’s right.

XN:    Yes. Exactly where was his hand in relation to your right breast?

A:    He had maybe three or four fingers and it was halfway up my breast.

XN:    Alright?

A:    Didn’t touch my nipple, I don’t think, but I remember …

XN:    Well the witness indicated, I think, the palm of her hand probably – we just do this so the transcript can record it, you understand, Ms Norvill. The witness indicated the palm of her right hand on the side of her breast and her fingers at least over part of the top the breast?

A:    That’s right.

…

His Honour:    At the time that this occurred, the event that you’ve just described, was this at a time that Mr Rush playing King Lear was saying something? Was there any dialogue at this time?

A:    Yes, he was delivering a monologue … I’m sorry, I don’t remember [what part of the monologue it was].

…

XN:    The motion you described, how long did it last?

A:    It lasted about eight or 10 seconds. It was – felt slow.

XN:    Okay. And of that eight or 10 seconds, are you able to recall how long his hand was on your breast?

A:    Two, three, four seconds.

XN:    Alright. Thank you. Had that ever happened before?

A:    No, that had never happened before.

XN:    Now, what did you think when that happened?

A:    I believed that he had done it deliberately … The touch was different to what I had experienced previously. It was slow and light and pressured across my – my breast, and that’s why I thought it was deliberate.

XN:    When you say “pressured”, what do you mean by that?

A:    I mean it wasn’t a – a light touch, or a – it wasn’t a – an accident. It couldn’t have been an accident, because it was slow and pressured …

252    Ms Norvill also said that, in this last scene, she had been lying down a few metres from the front of the stage and that the front row of the audience would have been a metre back from the “lip” of the stage. She agreed that Mr Koman, playing the Earl of Kent, and Mr Winter, playing the role of Edgar, were close by and, that if they had been looking directly at the scene, would have been able to see Mr Rush’s touch.

253    Ms Norvill said that on the following day, in a review of the performance, Mr Armfield had given Mr Rush an oral direction that his touching of her in the final scene “had become unclear and creepy and that he should make it more paternal and … go back to touching me on the face and the arm”.

254    Mr Winter said that during the last scene in one of the early performances of King Lear, he had seen Mr Rush’s hand “cupping around the bottom of EJs breast, which was something that I hadn’t seen before on stage”. He was then asked:

XN:    Could you describe with a bit more precision whereabouts on the breast the hand was?

A:    The nipple was not covered. It was sort of more of a cupped position. I – it’s a little bit tricky to describe, I guess. But I would say the sort of side and under. So not like a squeeze, if – if you will. Not like that. It wasn’t like that.

255    Mr Winter went on to say that it was Mr Rush’s right hand on Ms Norvill’s left breast and that although he could not say for how long Mr Rush had his hand in that position, it had been long enough for him to have had “a series of thoughts”.

256    The cross-examination of Mr Winter on this issue focussed on whether his account of the way in which he said Mr Rush had touched Ms Norvill’s breast had been influenced by his viewing of a video tape of the final scene a few days before his giving of evidence and whether his evidence was consistent with accounts which he had given previously.

The Judge’s findings

257    The Judge reviewed all the evidence concerning this alleged incident. His Honour accepted Mr Rush’s evidence that he had never intentionally touched Ms Norvill’s breast; accepted the evidence of Mr Armfield, Ms Nevin and Ms Buday that they had not seen such an incident occur; accepted Mr Armfield’s evidence that he had been watching the preview performances “like a hawk” and had dictated notes of matters to raise later with the cast so that his eyes did not leave the stage; accepted that Mr Armfield’s notes did not contain any reference to untoward touching of Ms Norvill; accepted that, likewise, the notes of the Stage Manager, Ms Gilbert, made during the preview performances contained no such reference; and accepted Mr Armfield’s evidence that he had not given Mr Rush an oral “note” in which he had described Mr Rush’s actions as “creepy and unclear” and that he should make it more “paternal”. No other witness supported Ms Norvill’s claim that Mr Armfield had given Mr Rush such a “note”.

258    With specific reference to Mr Winter’s evidence, the Judge said that it provided “no real corroboration” of Ms Norvill’s account because it differed from her evidence in several respects which the Judge regarded as important. First, whereas Ms Norvill described Mr Rush’s hand stroking down the right side of her right breast, with three or four of his fingers halfway up her breast, Mr Winter described Mr Rush “cupping” his hand around the “side and bottom” of Ms Norvill’s left breast.

259    Secondly, Mr Winter had not initially described a stroking action of the kind recounted by Ms Norvill although he had, when pressed about whether Mr Rush’s actions would have been seen by the audience, said “[w]ell his hands were going up her whole side of her body”.

260    Thirdly, on Ms Norvill’s account the stroking occurred on her right side and not her left side whereas Mr Winter described the actions as involving the cupping of Ms Norvill’s left breast. By reason of the respective positions of Mr Rush and Ms Norvill in the last scene, the actions each described had of necessity to be fundamentally different.

261    Next, the Judge said that, even putting the inconsistencies between the two accounts to one side, he was not persuaded of the reliability of Mr Winter’s account. The Judge said:

[588]    … I am not in any event persuaded that Mr Winter’s account was at all reliable. Mr Winter’s description of the event was given in an almost matter of fact manner. He said he would not describe what he saw as an “incident”. Rather it was a “strange thing that occurred” or something “that happened and then we moved on”. It does not appear that he discussed that ‘thing’ with Ms Norvill at the time, or reported it to management or anyone else. It did not seem to adversely affect his attitude towards Mr Rush, as he still approached Mr Rush for a reference after the performances of King Lear had concluded. He also apparently continued to consider that Mr Rush was an “exemplary company leader”.

262    It is not altogether clear what the Judge meant by his description of Mr Winter’s account having been given “in an almost matter of fact manner”, but it is plain that it was a reference to the manner in which the evidence had been given. In this respect, this Court does not have the advantage which the Judge had in seeing the evidence as it was given.

263    The Judge gave detailed reasons for concluding that the evidence of Ms Norvill and Mr Winter concerning the fifth alleged incident was neither reliable or credible. These included the probability that, if the action described by Ms Norvill and Mr Winter had occurred, it would most likely have been seen by many members of the 900 strong audience and, further, that the conduct of Mr Rush described by Ms Norvill and Mr Winter would have been “wholly destructive of the scene”. Ms Norvill herself described the importance of the final scene:

[I]t’s an extremely difficult scene for Lear. It’s one of the pivotal scenes where he delivers a – a huge emotional speech where he grieves over the body of his murdered daughter, who he has discovered is the only one who he should have trusted and, you know, it’s a moment of awakening and dying at the same time. It’s huge for him and it requires a depth and an outpouring of extreme emotion …

264    In this context, we consider it unsurprising that the Judge considered that the conduct which Ms Norvill and Mr Winter attributed to Mr Rush was highly implausible, and inconsistent with the dedication and professionalism which Mr Rush brought to his craft.

265    The Judge accepted that the possibility that Mr Rush may have brushed or touched Ms Norvill’s breast accidentally during the scene could not be excluded, but concluded by accepting Mr Rush’s evidence that he had never intentionally or deliberately touched Ms Norvill’s breasts during any of the performances.

The appeal submissions

266    Again, counsel’s submissions were to the effect that this Court should make its own assessment of Mr Winter’s evidence without reference to the Judge’s credibility-based findings. Thus, counsel submitted that Mr Winter’s different account as to which of Ms Norvill’s breasts had been touched by Mr Rush was explicable: some differences between the accounts were to be expected given the long period which had elapsed between the performance of King Lear and the time when Mr Winter gave his evidence; Mr Winter had been focussing on his own performance at the time; he was not the one who had experienced the touching; and, in any event, the difference between the accounts was indicative of an absence of any collusion between Mr Winter and Ms Norvill.

267    Counsel also emphasised Mr Winter’s evidence that King Lear had been performed before the #MeToo movement had brought a heightened consciousness about sexual harassment and assault in theatrical circles. He submitted that this circumstance was consistent with Ms Norvill’s evidence, given in relation to the second and third incidents:

Everyone else didn’t seem to have a problem about it, you know, so I was looking at a room that was complicit. My director didn’t seem to have a problem with it, so I felt quashed, in terms of my ability to find allies.

268    In her cross-examination, Ms Norvill elaborated on her statement that the room had been complicit:

A:    There was a culture of bullying and harassment in that room, and in my industry. And it is accepted and normalised. And that word, “complicit”, that – I guess, that’s what I mean.

His Honour:    Do you mean everyone in the room was bullying and harassing?

A:    No, I don’t mean that, but …

His Honour:    Well, what specifically do you mean, then?

A:    There are bullies, and sexual predators, and sexual harassment happens in my workplace, and it happens often; and it happened in that room, to me; and, I believe, people knew about it, but didn’t know what to say. They didn’t know what to do; they were frightened. And there was a level of hierarchy that kept that fear and silence in place.

269    Counsel then submitted that the evidence of Mr Armfield, Ms Nevin and Ms Buday had to be viewed in that context.

Consideration

270    We have set out in some detail the evidence of Mr Winter and of Ms Norvill concerning the fifth of the alleged incidents, as well as the Judge’s findings concerning it. It is not necessary to repeat the review.

271    In our opinion, the review indicates that the Judge’s conclusion that there were significant differences between the two accounts, so that Mr Winter’s evidence could not really be regarded as corroborative of that of Ms Norvill, is soundly based.

272    The existence of differences in the account of witnesses of an event of short duration, especially when given after the lapse of significant time, is commonplace. It is something which judges routinely take into account in their assessment of evidence. It is true that the Judge did not refer to this experience explicitly, but we see no reason to suppose that his Honour did not take it into account.

273    Counsel did not elaborate on the submission that the evidence of Mr Armfield, Ms Nevin and Ms Buday had to be seen in the context that the incidents alleged occurred before the #MeToo movement. If it was intended to be a submission that these witnesses had been inured to the conduct alleged of Mr Rush, or indifferent to it, or had failed to appreciate its significance, this is a matter which should have been put directly to each at trial, and it was not. The appellants’ submission also comes up against the Judge’s assessment that each of these witnesses was strong minded and unlikely to have tolerated or condoned the conduct alleged of Mr Rush, had they witnessed it. A review of the evidence of each of these witnesses suggests that, had they been aware of the conduct described by Ms Norvill, they would have spoken up at the time, and they did not. In any event, counsel did not make plain how this particular submission related to the Judge’s assessment of Mr Winter’s evidence, let alone the Judge’s assessment of its corroborative effect.

274    Again, the submission of counsel ignores the fact that the Judge made a credibility-based finding concerning Mr Winter’s evidence and found it to be neither credible nor reliable. That being so, it could not have been regarded as corroborative or confirmatory of Ms Norvill’s evidence. Counsel did not point to any matter which, in accordance with the principles concerning appellate review of credibility-based findings on which this Court could substitute a different view from that reached by the Judge.

275    For these reasons, we consider that the appellants have not made good the complaint in Ground 10(e).

Ms Norvill’s conversations with Ms Nevin (Ground 10(f))

276    Under this ground, the appellants complain of the Judge’s rejection of Ms Norvill’s evidence concerning two conversations which she had with Ms Nevin. Strictly speaking, the Ground concerns only the second of the two conversations but, as the parties’ submissions canvassed both, we will deal with them on that basis.

The evidence about the first conversation

277    Ms Norvill’s evidence was that the first conversation had occurred during the week of 16 November 2015 which was the week in which technical production of King Lear had commenced.

278    Ms Norvill’s account of this conversation was as follows:

XN:    And then do you remember having a conversation with Robyn Nevin about the same time?

A:        Yes, I do.

…

XN:        This time, do you remember where that conversation was?

A:    Yes. I remember being in Robyn’s dressing room and she was wearing her sparkly, tight sequinned dress – her Marilyn Monroe dress, and her wig.

…

A:    And I – I asked her, “how – have you ever experienced, you know, unwanted attention”, or words to the effect of unwanted advances or sexual harassment, and she said, “no, I can’t help you with that. That has never happened to me”.

279    As is apparent, Ms Norvill did not claim that she had made any reference to Mr Rush in this conversation with Ms Nevin.

280    Ms Nevin gave evidence at the trial before Ms Norvill, because she was called as part of Mr Rush’s case. In her evidence in chief, Ms Nevin said that Ms Norvill had not, either during the rehearsal period or the performance period, told her that she had a problem with Mr Rush. Ms Nevin repeated this evidence in cross-examination and denied a suggestion that she had responded by saying words to the effect “I don’t know if I can help you because that has never happened to me”.

The evidence concerning the second conversation

281    Ms Norvill also gave evidence about a separate conversation with Ms Nevin which she said occurred in mid-2016 at the time that she and Ms Nevin were performing in another STC production, All My Sons, in the Rosslyn Packer Theatre in Sydney.

282    Ms Norvill’s account of the conversation was as follows:

XN:    [D]o you recall having a conversation in the course of – in the course of that show with Robyn Nevin?

A:    Yes.

…

XN:    And did you have a conversation that revolved around something that happened in King Lear?

A:    Yes, we did.

…

His Honour:    Perhaps you just tell us what your best recollection is of the conversation you had at that point.

XN:    Yes?

A:    Okay. I told Robyn that I had been harassed by Geoffrey during the show and that I thought it was sexual harassment.

XN:    And what did Ms Nevin say to you?

A:    Ms Nevin said to me, “I didn’t think Geoffrey was doing that anymore. Poor Jane”.

283    In cross-examination, Ms Nevin denied that this conversation had occurred but agreed that, during the period of All My Sons, she had had a conversation with Ms Norvill in relation to a sexual harassment involving another person. The evidence was as follows:

XXN:    You had a conversation with Ms Norvill in the course of that production. You did have a conversation with her about the topic of sexual harassment, didn’t you?

A:    Ms Norvill was in a state of high distress in relation to a sexual harassment issue in a production, I think maybe within the same timeframe as All My Sons … and she was very concerned about that. I asked if she wanted me to do anything about it. She said, “No”.

XXN:     Well, the production that she was upset about was Lear, was it not?

A:    No, no, no. She specifically – a friend of hers had a very distressing experience of sexual harassment in a production on at the same time or around the same time as we were doing All My Sons, and she was very concerned for the young actress in that production who had left the production and the cause of the problem had remained with it. And I said to her at that point, “Do you want me to speak to anybody about it”, and she said, “No”, that they had some form of follow-up that they were embarking on themselves, some form of self-help group, I understand.

…

XXN:    Well, Ms Nevin, what I want to put to you is that Ms Norvill also told you something about – or said something to you, first of all, about something that had happened to her during the production of Lear in – at …?

A:    That was another conversation at another time.

…

A:    Well, it was in a – the – a similar timeframe; the same timeframe as the conversation we’ve just noted. She was in a – in a tearful state and – and when I asked her what was wrong she said, “It just reminds me,” – and I’m absolutely paraphrasing. I can’t quote her, “It reminds me of the trouble I had here during King Lear” …

284    In the following cross-examination, Ms Nevin confirmed that there had been two conversations: one in which Ms Norvill had mentioned the sexual harassment of her friend in another performance and a second in which she had mentioned her unhappiness during King Lear but without having mentioned any sexual harassment or inappropriate behaviour. Later aspects of the cross-examination were as follows:

XXN:    She indicated to you, didn’t she, that it was inappropriate behaviour of sexual kind that she was upset about?

A:    She most definitely did not suggest that to me. You’re putting words into my mouth. I beg your pardon for raising my voice, but that is – it is just appalling that you would put those words in my mouth. I just told you specifically I couldn’t quote precisely, but there was absolutely no – allusion or reference made to sexual – anything sexual.

…

XXN:    You understood, I put it to you, from what she was saying to you that she had received inappropriate or unwanted attention from Mr Rush in the course of Lear?

A:    Absolutely not. She did not infer that at all in any way.

XXN:    You see, and you said to her, didn’t you, “I thought Geoffrey had stopped doing that. Poor Jane”?

A:    No. Well, I have no – I don’t know what that refers to. That’s just – excuse me, may I ask what – what that is supposed to be?

…

XX:    You said to Ms Norvill, “Oh, I thought Geoffrey had stopped doing that. Poor Jane”?

A:    No. I – well, I deny that.

The Judge’s findings

285    The Judge made findings about the respective evidence of Ms Norvill and Ms Nevin in the section of his reasons concerning the first alleged incident. His Honour was not satisfied, on balance, that the first conversation had occurred, at [435], saying:

… On Ms Norvill’s version of the conversation, she appeared to be seeking some advice or support from Ms Nevin and Ms Nevin’s response was unsupportive and unhelpful, if not unkind. That appears to be inconsistent with Ms Norvill’s evidence, when pressed in cross-examination, that Ms Nevin had always been kind to her. I find it implausible, in all the circumstances, that Ms Nevin would have said “I can’t help you with that” in response to what appeared to be Ms Norvill’s attempt to raise the issue of sexual harassment with her.

286    The Judge regarded the conflict in the evidence of Ms Norvill and Ms Nevin concerning the second conversation as being difficult to resolve, at [440] and [445]. His Honour accepted that Ms Norvill and Ms Nevin had had a conversation while appearing in All My Sons in which Ms Norvill had been upset and had referred to her unhappy experience during King Lear, at [440]. The Judge took into account that Ms Norvill had not been cross-examined specifically about her version of the conversation with Ms Nevin, at [440] and [448]. His Honour did not accept that a text message sent by Ms Nevin to Ms Norvill on 1 December 2017 after the publication of the second of the Daily Telegraph articles undermined Ms Nevin’s evidence. We will return to that issue shortly.

287    The Judge gave two reasons for preferring Ms Nevin’s evidence. First, the Judge regarded Ms Nevin’s evidence as “clear and emphatic”, at [437] and [445]. Secondly, the Judge did not regard Ms Norvill’s evidence as reliable, having regard to two considerations. The first was the inconsistency which he detected in Ms Norvill’s evidence that Ms Nevin had enabled or had been complicit in Mr Rush’s inappropriate behaviour (by reason of being aware of it but doing nothing about it), on the one hand, and her twice-repeated evidence that Ms Nevin had always been kind to her, on the other. Secondly, the Judge considered Ms Norvill’s account of the conversation to be “somewhat improbable” in the context of Ms Nevin’s evidence as a whole. In this respect, the Judge noted that Ms Norvill’s claim that Ms Nevin had said “I didn’t think Geoffrey was doing that anymore” implied that she knew or believed that Mr Rush had sexually harassed other people previously. The Judge noted, however, that it had not been put to Ms Nevin that she did in fact have knowledge or belief of conduct of that kind by Mr Rush. His Honour also said that it was difficult to accept that, if Ms Nevin did have such knowledge or belief, she could have given the evidence which she did of Mr Rush’s good reputation, at [447].

288    As noted earlier, the Judge regarded Ms Nevin as a frank, forthright and honest witness who had given reliable evidence. He specifically accepted Ms Nevin’s evidence that she had not seen any conduct of Mr Rush that would justify Ms Norvill’s complaint, at [449].

The appellants’ submissions

289    In relation to the first conversation, the appellants submitted that the Judge had been wrong in finding an inconsistency between Ms Norvill’s evidence that Ms Nevin had said that she could not help her and her evidence that Ms Nevin had always been kind to her. Counsel submitted that a statement of an inability to assist does not imply unkindness. The Judge had overlooked, it was submitted, that it had been open to Ms Norvill to understand Ms Nevin as saying that she was powerless to assist, as opposed to not wanting to assist. Ms Nevin could, counsel submitted, have spoken sympathetically. Counsel also submitted that the Judge should have considered Ms Norvill’s evidence that Ms Nevin had been complicit in Mr Rush’s conduct in the context of the cultural problem within the industry about which Ms Norvill had given evidence, namely, the circumstance that bullying and harassment was normalised and accepted with the consequence that people did not speak out against it.

290    In relation to the second conversation, the appellants’ submission focussed on the text message sent by Ms Nevin to Ms Norvill on 1 December 2017. Counsel emphasised that this text indicated Ms Nevin’s awareness at that time that Ms Norvill was the complainant and submitted that her knowledge that that was so could have derived only from her conversation with Ms Norvill in mid-2016. He submitted that Ms Nevin’s text provided incontrovertible evidence supporting a finding that her evidence concerning the conversation with Ms Norvill during All My Sons was unreliable. Counsel also emphasised that Ms Nevin’s text had been expressed in sympathetic terms.

Consideration

291    The dispute about the conversations between Ms Norvill and Ms Nevin seems to have been relevant only to the assessments of the credibility of their evidence. It was not suggested that the evidence was admissible for some wider purpose, for example, proof of the underlying facts or proof of consistency between a complaint of Ms Norvill and her evidence in Court of the kind which may be admissible in criminal proceedings – see s 66 of the Evidence Act 1995 (Cth) and, at common law, R v E (1996) 39 NSWLR 450.

292    With respect to the first alleged conversation, a difficulty for the appellants is that the Judge’s assessment appears to have been in part demeanour-based, turning, as it did in part, on the manner and tone of the response which Ms Norvill attributed to Ms Nevin. Another difficulty is that the appellants’ counsel had not put to Ms Nevin in her cross-examination that she had been complicit, or that she had seen untoward incidents about which she had chosen not to take any action.

293    In our view, it was open to the Judge to find inconsistencies between Ms Norvill’s description of Ms Nevin as having always been kind and her account of Ms Nevin’s response to the request. We note in this respect that, at the trial, counsel for the appellants had characterised Ms Norvill’s approach to Ms Nevin as a request for “help and support”. It is natural to suppose that, had it been made, it would have evoked a sympathetic response from a kind-natured person. Yet, on Ms Norvill’s account, Ms Nevin had been dismissive, saying that she could not help. We note in this respect Ms Nevin’s evidence that she had a good relationship with Ms Norvill, saying:

[W]e were good colleagues and I would say we were friends. There’s a huge gap, of course, in ages, but in the theatre that tends not to matter.

294    We also note that counsel for the appellants had not submitted at trial that Ms Nevin was saying only that she was “powerless to assist” and not that she did not wish to. Further, that understanding seems inconsistent with the explanation which Ms Nevin gave (on Ms Norvill’s account) for being unable to assist, namely, that she had never been subject to unwanted advances or sexual harassment.

295    For these reasons, the appellants have not shown a basis on which this Court could interfere with this credibility-based assessment.

296    Consideration of the appeal with respect to the second conversation is a little more complex, by reason of the appellants’ reliance on the text message sent by Ms Nevin to Ms Norvill on Friday, 1 December 2017 at 4.31 pm. In order to assist understanding of the reasons which follow, we set out the following brief chronology:

297    In her text, Ms Nevin said:

Oh dear girl are you ok?? i was contacted today by channel 9, I was in rehearsal with no iPhone. Fortunate. I told my agent no comment. But it’s nasty. I hope you’ll be protected. I’m sure you will be. If you need anything just ask. xxx

298    It was common ground that, at the time Ms Nevin sent her text, Ms Norvill had not been identified in public media as the complainant.

299    In her cross-examination, Ms Nevin acknowledged that, at the time she sent the text, she knew that Ms Norvill was the complainant. So much can in any event be inferred from the terms of the text.

300    The appellants submitted that the terms of the text, and Ms Nevin’s evidence, constituted incontrovertible evidence supporting Ms Norvill’s account of her conversation with Ms Nevin during the performance of All My Sons. The argument proceeded on the premise that the information which Ms Norvill said had been conveyed in that conversation could have been the only source of Ms Nevin’s knowledge of the identity of the complainant. Counsel also submitted that, unless the conversation claimed by Ms Norvill had occurred, it was extraordinary that Ms Nevin would have sent a text in such sympathetic terms. This was especially so given Ms Nevin’s longstanding close friendship with Mr Rush and his wife.

301    Ms Nevin was taxed with these matters in her cross-examination. She said that she could not recall when or how she had first learnt that Ms Norvill was the complainant but denied emphatically the suggestion that she had known that Ms Norvill was the complainant by reason of her conversation with Ms Norvill during All My Sons. It seems improbable that Ms Nevin could have forgotten a report by Ms Norvill of sexual harassment by Mr Rush. The principal alternative possible explanation for her emphatic denial is that it was dishonest, but the Judge found that she was a frank, forthright and honest witness.

302    Ms Nevin was also taxed about the friendly terms of her text of 1 December 2017:

XXN:        You weren’t angry with Ms Norvill?

A:        No.

XXN:        Is that what you’re saying?

A:        Yes. That’s what I’m …

XXN:    Even though she had made what you considered to be a baseless complaint against – and a very serious complaint against a good friend of yours?

A:    Yes. I was distressed for Ms Norvill because I knew it would – what it would mean to her to have this revealed to the public. That was my level of distress; my concern for her. She was also – at the time she was in a production doing eight shows a week of a very difficult performance. And I – I – I knew that she would be in a terrible state as would her family.

303    When explaining why the text which she had exchanged with Ms Norvill after 1 December 2017 did not include any reproaches by reason of the allegations made against her good friend Mr Rush, Ms Nevin said “I loved the girl … I felt concerned for the girl … my concern for Geoffrey was paramount, but I – I also had compassion and concern for the girl because both of their lives had been damaged by it”.

304    Like the Judge, we do not consider that Ms Nevin’s awareness at 4.31 pm on 1 December 2017 that Ms Norvill was the complainant indicates that she must have derived that knowledge from her conversation with Ms Norvill nearly six months earlier during All My Sons. There are other possibilities. The Judge noted the following sequence of events. Mr Rush’s agent had been informed in an email from the second appellant sent at 5.06 pm on 29 November 2017 that he understood Ms Norvill to be the complainant. Mr Rush gave evidence that his agent had told him about the second appellant’s email within minutes of her receipt of it. Mr Rush had discussed it with his wife, Ms Menelaus. Ms Nevin said that she had been rehearsing a play in Melbourne on 30 November and 1 December 2017. She had visited Mr Rush and his wife Ms Menelaus on the weekend (we infer the weekend of 2 and 3 December 2017). Ms Nevin thought that she and Ms Menelaus had been in contact, via text or email, before that visit. The Judge found it likely that Ms Menelaus would have told Ms Nevin of Ms Norvill’s identity as the complainant in one of those texts or emails. This conclusion cannot be regarded as “glaringly improbable”.

305    The Judge concluded:

[444]    It is ultimately unnecessary to decide precisely how Ms Nevin became aware that Ms Norvill was the complainant by the time of the publication. Indeed, the evidence was such that it was not possible to make any clear finding in that regard. I am not persuaded that because Ms Nevin knew by 1 December 2017 that Ms Norvill was the complainant referred to in the Telegraph articles it is more probable than not that Ms Norvill had previously told Ms Nevin that she had been sexually harassed by Mr Rush. Put another way, I do not consider that Ms Nevin’s knowledge by 1 December 2017 that Ms Norvill was the complainant provides strong support for Ms Norvill’s evidence of her conversation with Ms Nevin in mid-2016, or suggests that Ms Nevin’s account of the conversation is unreliable and should not be accepted.

306    Plainly, this assessment by the Judge turned in part on his assessment of Ms Nevin as a frank, forthright and honest witness. That is to say, in addition to having regard to the inherent likelihoods of the respective accounts, the Judge made a demeanour-based finding. In these circumstances, we do not consider that there is any basis upon which this Court could conclude that there was error. Specifically, we reject the appellants’ submission that Ms Nevin’s text provided incontrovertible evidence with which the Judge’s finding is consistent.

307    Further, we do not consider that the Judge should have regarded the friendly and solicitous terms of Ms Nevin’s texts to Ms Norvill as undermining her account. Plainly, Ms Nevin was on friendly terms with both Mr Rush and with Ms Norvill. We note in this respect that, at almost the same time as sending the text to Ms Norvill, Ms Nevin visited the home of Mr Rush and Ms Menelaus with a view to providing support to them. In those circumstances, the inference to be drawn is that, as Ms Nevin herself said, she was concerned for both.

308    Accordingly, in our view, the appellants have not made good the complaint in Ground 10(f).

The lack of corroboration generally (Ground 10(g))

309    By Ground 10(g), the appellants allege that the Judge had erred in finding, at [339], that the most telling circumstance against the acceptance of Ms Norvill’s evidence was that much of it was uncorroborated.

310    The full text of [339] has been set out earlier in these reasons, and it is not necessary to repeat it.

311    The appellants did not advance separate submissions in support of this ground. They did, however, submit that an absence of corroboration is a common feature in allegations of sexual assault and sexual harassment. We accept that that is so. However, that point can be pertinent only to Ms Norvill’s account of the sixth and seventh incidents on which the appellants rely. The other incidents (specifically the first, second, third and fifth) involved allegations of conduct of Mr Rush said to have occurred in the presence of other witnesses. Plainly, it was a pertinent consideration that, with the exception of Mr Winter, the appellants did not seek to adduce any evidence supporting Ms Norvill’s account even though, had the conduct occurred, it must have been witnessed by several others. Moreover, Ms Norvill’s account was either contradicted, or not supported, by the evidence of Mr Armfield, Ms Buday and Ms Nevin, each of whom was, on Ms Norvill’s own account, in a position to have observed much of the conduct she alleged.

312    Ground 10(g) fails.

Conclusion on Ground 10

313    In summary, although we consider that the Judge erred in attaching significance to the inconsistencies between Ms Norvill’s statements in the promotional interviews and the conduct of Mr Rush about which she complained, Ground 10 has not been made out. As we indicated in relation to Ground 10(a), we do not regard the Judge’s error as being of assistance to the appellants presently, given the other unchallenged evidence suggesting the existence of a good and close relationship between Mr Rush and Ms Norvill during the rehearsals for, and the performances of, King Lear. That they had a relationship of that character seems inconsistent with the conduct of Mr Rush which Ms Norvill was describing.

314    Further, like the Judge, we consider that his Honour’s finding concerning Ms Norvill’s statements in the promotional interviews was not a major or important consideration in his assessment of the credibility and reliability of Ms Norvill’s evidence – see Rush v Nationwide News Pty Ltd (No 8) [2019] FCA 1382 at [128].

315    We have conducted our review of the evidence in accordance with the principles discussed in Fox v Percy, Lee v Lee and summarised in Jadwan v Rae & Partners. The findings which the appellants impugned were based on the Judge’s assessment of the credibility of the various witnesses. This is a case in which particular regard should be had to the advantage which the Judge had in seeing and hearing the evidence as it was given. In our view, the Judge’s findings are not glaringly improbable, contrary to compelling inferences or inconsistent with incontrovertible facts or other uncontested testimony. The appellants have not shown circumstances warranting appellate intervention.

Rejection of the defence of justification (Ground 9)

316    By Ground 9, the appellants contended that the Judge had erred in failing to find that each of the imputations on which Mr Rush had sued and which remained in issue at the trial, was substantially true. We noted earlier that the appellants had accepted at trial that Mr Rush was entitled to judgment on the imputations pleaded in [10(f)] and [10(g)] in the Statement of Claim. We also noted earlier, that Ground 9 does not make any complaint of the Judge’s finding with respect to the fourth matter on which the appellants relied for the defence of justification, namely, Mr Rush’s statement that he had a “stage-door Johnny crush” on Ms Norvill.

317    The appellants accepted that, in order to succeed on Ground 9, it was necessary for them to overturn the Judge’s findings in relation to Ms Norvill’s credibility and reliability as a witness, pursuant to Grounds 10-12 of their Notice of Appeal. As the appellants have not succeeded in overturning those findings, this means that, subject to one remaining matter, Ground 9 must also fail.

The text of 10 June 2016 (Ground 9(f))

318    The remaining matter is contained in [9(f)] of the 2FANA by which the appellants complained that the Judge had erred in finding, at [654], that the text of 10 June 2016 was not “inappropriate”.

319    As already noted, in June 2016 Ms Nevin and Ms Norvill performed in the play All My Sons. The Judge found that the opening night of All My Sons was on or shortly before 10 June 2016. Mr Rush sent a text message to Ms Norvill at 6.57 pm on 10 June 2016, the full text of which is as follows:

…. beloved Aryan Schöne Müllerin (yes a complicated and obtuse jeu de mots, of course) - basically it’s a spectacular near-homophone praising you as a delicious mysterious daughter of the Miller! - apologies for missing your opening last night (I sent a scrappy hasty message through Mrs Nevin) …. but I was thinking of you (as I do more than is socially appropriate ) - how is your Big Wheel turning? … how do months fly so quickly by? Fatigued by Lear (many levels) I flew to the UK, underprepped but champing, to play Giacometti - and have just seen a Vimeo finecut which has allayed my worst fears of not honouring the man’s curious idiosyncrasies - many chunky sessions of meticulous ADR happen next week.

I feel certain you will be hand in glove with Miller’s world. He’s a classicist that still provides the toughest and most interesting challenges for a contemporary experience …. I hope you’re hApPy and still find time to dance with Xmas-style abandon ….

xo Gregarious Raunch

(Emphasis added)

320    It was common ground that Ms Norvill had not replied to the text.

The evidence

321    The Judge considered it important to consider the text message of 10 June 2016 in the context of the previous exchanges of text messages between Mr Rush and Ms Norvill. His Honour set out at [638] a number of the text messages exchanged in the period between 20 April 2014 and 12 September 2014. It is not necessary for the entire content to be repeated presently because the Judge’s description of the text messages was not in dispute. The Judge described them as follows:

[639]    [The] text messages reveal that Mr Rush and Ms Norvill were on close and friendly terms throughout 2014. The text messages were playful, funny and included numerous intellectual and theatrical jokes and jests, not limited to the homophones they employed when referring to each other’s names. It is also difficult to deny that the text messages were mildly, though harmlessly, flirtatious and employed some sexual innuendo. Ms Norvill’s apparent unwillingness to acknowledge that the text messages were sexually flirtatious was difficult to understand, though she did eventually acknowledge that some of the language in the texts was “sexually flirtatious” and “intellectually flirtatious”. Importantly, her evidence in relation to that was: “there’s nothing wrong with that”.

322    Although the texts in evidence ended on 12 September 2014, Ms Norvill said that she and Mr Rush had continued to communicate by Viber or WhatsApp after that date. They had been more convenient platforms for communication because one or other of them had been overseas. The messages on Viber and WhatsApp had been lost.

323    Mr Rush was cross-examined at some length about the emphasised words in his text of 10 June 2016. The cross-examination included the following:

XXN:    It sounds very much, Mr Rush, like that was habitual at the time; you were habitually thinking of Ms Norvill more than was socially appropriate?

A:        No, I wasn’t.

XXN:        Well, you say “as I do, more than is socially appropriate”?

A:        Yes.

XXN:        That implies, doesn’t it, that it was continuing?

A:        No, it doesn’t.

XXN:    You had been thinking of her more than is socially appropriate for some time?

A:    That – that is not correct in my mind. It’s a throwaway line. It’s actually a joke. I would say modestly in the style of Groucho Marx, because by the time I was writing this catch-up message, I realised it was very long and I said, “I’m sorry I missed your opening, but I haven’t forgotten about you.” If there had been a Groucho emoji, I would have punctuated with that to absolutely ensure that it was whimsy.

XXN:    What you’re saying there though is that you were thinking of her in a way that was socially inappropriate; that’s what you’re saying to her, isn’t it?

A:    It’s not, actually. Socially inappropriate to me is a weasel word. I use it often in a playful way to say, “What are we allowed to do and what aren’t we allowed to do,” in any given context with many of my friends. And you will notice the dot, dot, dot, “But I was thinking of you. I haven’t forgotten. I’m not being facetious.”

XXN:    Can we take it that during the run of King Lear you were thinking of Ms Norvill more than was socially appropriate?

A:        No, not at all.

…

XXN:    So you put in that little emoticon with its tongue hanging out there. What’s he doing? Is he panting?

A:    No. That was the looniest emoji I could find that sort of was yucca, yucca, yucca. I mean, I don’t want to – if Fozzie Bear had been in there, I would have put Fozzie Bear in.

XXN:    See, the tongue hanging out looks a bit like sort of drooling or panting, doesn’t it?

A:        Well, it’s a limit[ed] choice with emojis.

…

XXN:    Mr Rush, let’s cut straight to the chase, shall we? When you said to her, “I was thinking of you, as I do more than is socially appropriate,” with the emoji, that was a way of telling her. You intended to tell her, didn’t you, that you were very attracted to her?

A:    That was not as – its intention at all. And I’m sure that her on the receiving end would have found it amusing.

XXN:    “As I do more than is socially appropriate” with an emoji with its tongue hanging out and you’re saying that wasn’t your intention at all, are you?

A:    Well, it’s open to interpretation, but my intent, and which I think is evident on the page and in its use of the ellipsis beforehand, it’s a tagline to, “You haven’t gone out of my mind,” because I had been away for four months. I was doing a catch-up of what I had been doing since I had been away to film the Einstein series.

…

XXN:    Why was it more than socially appropriate to be thinking of Ms Norvill?

A:    I can’t explain it any better than if I could get a recording of Groucho Marx doing it, it’s a very flip excuse for not writing sooner. “You haven’t slipped my mind because I have fond memories about working on Lear, not realising, of course, in the interim that other things had been going on.

The Judge’s findings

324    The Judge gave four explanations for not accepting that the text of 10 June 2016 established the substantial truth of any of the pleaded imputations.

325    First, the Judge accepted Mr Rush’s explanation for the text and his evidence concerning his intentions in the use of the emoji, at [649]. That is to say, the Judge accepted that Mr Rush was apologising to Ms Norvill for missing the opening night, telling her that he had not forgotten her, explaining why he had not been in contact, and enquiring as to how Ms Norvill was going. The Judge accepted that the terms of the text were “plainly cryptic, playful, and humorous and contained some highly complimentary and perhaps even flirtatious remarks”, but regarded it as not being different from the texts which Mr Rush and Ms Norvill had exchanged in 2014.

326    Secondly, the Judge accepted that the text of 10 June 2016 would have had “an entirely different and more sinister complexion” had it been the case that Mr Rush had engaged in any of the behaviour during the rehearsals and performance of King Lear which Ms Norvill had described, but noted that he had already rejected the evidence concerning that conduct, at [652]. It was not suggested on the appeal that the Judge should have taken the text of 10 June 2016 into account in determining whether or not the alleged conduct had occurred.

327    Thirdly, the Judge said that, while reasonable people may hold different views as to whether it was appropriate for a senior married male actor in his 60s to be writing to a female actor in her 30s, albeit one who was experienced and accomplished, in such a flirtatious way, he did not regard the text in that way. In expressing that conclusion, the Judge took into account the character of the texts exchanged between Mr Rush and Ms Norvill previously, that Ms Buday who had also been cross-examined about the text message had not thought it inappropriate and that, at the time Mr Rush sent the text, he and Ms Norvill were no longer working on the same play together with the consequence that Mr Rush was not in any position of authority or influence with respect to Ms Norvill, at [653]-[654].

328    Finally, the Judge noted that the appellants relied on the 10 June 2016 text as proving the substantial truth of only one of the imputations pleaded by Mr Rush, namely, the imputation that he was pervert. The Judge was not satisfied that the text message of 2016 did prove the substantial truth of that imputation, at [655]-[656].

The appellants’ submissions

329    As already noted, on the appeal the appellants complained only of the Judge’s failure to find that the text message was “inappropriate”. They did not challenge the other bases upon which the Judge rejected the appellants’ reliance on the text message.

330    The submissions which the appellants made in support of this part of Ground 9 were quite brief. The appellants contended (relevantly):

A suggestive message from the Respondent, an older, married, male actor towards a younger female actor that he thinks of her “more than is socially appropriate” is inappropriate. By its very terms, the text message acknowledges that the Respondent thinks of Ms Norvill more than is appropriate, and telling her that is inappropriate. It is not difficult to see how that would make a woman in Ms Norvill’s position uncomfortable. This text message is quite different to those which had passed between Ms Norvill and the Respondent previously, and there was no indication at the time that such a comment would be welcomed by Ms Norvill. The Respondent’s explanation as to what he meant by this text does not sit comfortably with the unambiguous meaning of the words. It may be inferred from his attempt to alter their plain meaning that even he accepts it is not an appropriate text to send.

Consideration

331    The characterisation of a comment made by one person to another as “inappropriate” involves an application of community values and mores and consideration of the context and circumstances in which the comment is made. It is, as the Judge noted, a matter about which reasonable minds may differ.

332    If the matter is considered objectively and without regard to the history of the exchange of text messages between Mr Rush and Ms Norvill, we would have had little difficulty in characterising Mr Rush’s comment as inappropriate. A comment of that kind from an older married male to a much younger female implies that the male thinks of her in sexual terms. It is likely to make the female feel uncomfortable.

333    However, like the Judge, we consider that account should be taken of the content of the previous text exchanges.

334    Ms Norvill accepted that she and Mr Rush had, in their texts, engaged in a rhyming game using their names, with that game deriving from their mutual enjoyment of poetry and language. Some of the texts had sexual connotations. By way of example, it is sufficient to refer to a text of Ms Norvill herself sent on 6 September 2014 in response to a text which Mr Rush had sent to her on 5 September 2014. In his text, Mr Rush had used lines from a speech of Juliet in the play Romeo and Juliet commencing with “Galapagos apace, you fiery-footed steed!”. Ms Norvill had responded on the following day saying:

Galapagos Lusty Thrust. Please come celebrate my birthday. From 7pm [Address redacted].

335    In her cross-examination, Ms Norvill agreed that this text could be regarded as “intellectually flirtatious” but did not accept that it was “sexually flirtatious”. She then gave the following evidence:

XXN:        How did you think a man would take that?

A:        Can you define “man”?

XXN:    Do you have a difficulty with that? All right. I will define “man”. Someone over the age of 18 and below the age of 80 and who’s male …

A:    I apologise.

…

XXN:    … How did you think a male – that being a male over the age of 18 and under the age of 80 – would take that?

A:    That was a joke.

XXN:    I see. A sexual joke, isn’t it, Ms Norvill?

A:    An intellectually flirtatious joke.

336    This context makes more understandable the explanations given by Mr Rush for his text of 10 June 2016.

337    In her evidence in chief, Ms Norvill said that she had not seen anything sinister in her text exchanges with Mr Rush. She said, however, that on receiving Mr Rush’s text of 10 June 2016 and reading the line “but I was thinking of you, (as I do more than is socially appropriate)” and with the accompanying emoji, she had felt:

Bewildered. I – I didn’t understand why he would have sent me a message in the first place, and, I guess, probably panicked, because I believed Geoffrey to be unsafe.

338    Then, in the cross-examination, the following exchange occurred:

XXN:    Do you make any criticism of Mr Rush for the terms of that text, including the use of the emoji and the words used immediately before it; do you make any criticism of him?

A:    I criticise Geoffrey for sending me the email to think that we were on terms to speak.

XXN:    You see, it would be fair to say that he was doing exactly what you were doing, wouldn’t it? That’s one way – in the earlier SMSs – that’s one way of interpreting this, isn’t it?

A:    I hadn’t spent several months sexually harassing him.

339    These answers seemed to indicate that it was the sending of the text in the context of the conduct Ms Norvill attributed to Mr Rush which she regarded as inappropriate, rather than the content of the text itself.

340    Accordingly, having regard to the totality of the circumstances and the Judge’s other findings, we are not persuaded that there is error in the Judge’s finding that the text of 10 June 2016, including the highlighted words, was not “inappropriate”.

341    Moreover, like the Judge, we consider that even if the comment considered by itself be regarded as “inappropriate”, it did not in the context of the preceding text messages, prove the substantial truth of the pleaded imputation that Mr Rush was a pervert.

342    In these circumstances, it is not necessary to address the other bases upon which the Judge rejected the appellants’ reliance on the text of 10 June 2016.

343    Ground 9(f) is rejected.

Conclusion on defence of justification

344    This means that the appeal against the Judge’s rejection of the defence of justification fails.

The refusal of leave to amend the Defence (Ground 7)

345    By Ground 7 in the Notice of Appeal, the appellants contend that the Judge had erred, towards the end of the trial, in refusing them leave to amend their Defence. The Judge gave detailed reasons for that refusal, reported as Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851 (Rush (No 6)).

346    The appellants recognised that the Judge’s decision concerning the amendment was of a discretionary kind to which, on appeal, the principles stated in House v The King [1936] HCA 40; 55 CLR 499 at 504-5 apply. Although these principles are well known, it is worthwhile restating them:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

(Emphasis added)

347    The appellants did not contend that the Judge had made any of the first four kinds of error identified in this passage. Instead they relied on the residual principle, namely, that even when there is no identifiable error of those kinds, an error may be inferred if the decision in question is so unreasonable or unjust that the appellate court may conclude that there has been a failure to exercise the discretion reposed in the trial court. In a case of the present kind, that requires the appellants to surmount a high threshold.

The circumstances of the application to amend

348    The trial commenced on Monday, 22 October 2018 with 14 days having been set aside for the hearing. By that time, just on one year had already elapsed since the publication of the impugned articles. During the first six days of the trial, the Judge heard the evidence of Mr Rush (which extended over three days), Ms Menelaus, Mr Armfield, Ms Buday, Ms Nevin, Mr Schepisi and the remaining “reputation” witnesses called by Mr Rush.

349    On the morning of the seventh day of trial (Tuesday, 30 October 2018) the appellants sought, and were granted, leave to file in Court an interlocutory application seeking, amongst other things, a grant of leave to file a third further amended defence. The application was accompanied by (relevantly) the form of the proposed further amended defence and a statement of the witness whose evidence was said to support the new particulars. It is not necessary for present purposes to set out in detail the amendments proposed by the appellants. Instead, we will adopt the summary given by the Judge in Rush (No 6) at [72]-[80], noting that there was no complaint on the appeal concerning that summary. We also note that the Judge was somewhat circumspect in his summary because of non-publication and suppression orders which he had made concerning the content of the proposed amendments and with respect to the name of the witness upon whom the appellants proposed to rely in support of the new allegations.

350    The Judge said of the proposed amendments:

The proposed amendments to the existing defence are, on just about any view, substantial and significant. They include the insertion of entirely new particulars of truth of some of the pleaded imputations as part of [the appellants] defence of justification pursuant to s 25 of the Defamation Act 2005 (NSW). Those particulars raise a series of entirely new allegations concerning Mr Rush’s conduct by a prospective new witness. That prospective witness will be referred to throughout these reasons as “witness X”.

351    Later, the Judge noted that the proposed new particulars of truth had nothing to do with Mr Rush’s conduct during the STC production of King Lear which had been the main, if not sole, focus of the impugned articles. His Honour also noted that the proposed new particulars involved neither Ms Norvill nor the STC but instead involved incidents or events alleged to have occurred many years before 2016, at [51]. Later again, the Judge noted that the proposed third further amended defence contained eight new particulars which were said to support the appellants’ plea of substantial truth to three of the pleaded imputations.

352    The suppression order concerning the name of witness X has since been lifted – she is Ms Yael Stone.

353    At the time of the interlocutory application, Ms Stone was working in New York. The appellants provided evidence that, while Ms Stone was willing to give evidence in the trial, she could not travel to Australia for that purpose. There were two reasons why that was so: Ms Stone’s contractual commitments in New York until February 2019 and her motherhood of a very young baby for whom long distance travel was difficult. Accordingly, the appellants also applied for leave, under s 47A(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), for Ms Stone’s evidence to be taken by video link.

354    Having regard to the evidence provided in support of the application to amend, the Judge dealt with it on the basis that the foreshadowed evidence of Ms Stone would, if fully accepted, be capable of supporting the substantial truth of two of the pleaded imputations. His Honour expressed doubt as to whether Ms Stone’s foreshadowed evidence would be capable of supporting the third imputation identified by the appellants but said that he would proceed on the basis that the proposed evidence was at least potentially capable of supporting the substantial truth of that imputation. The Judge also proceeded on the basis that, if the evidence of Ms Stone did establish the substantial truth of any of the three imputations, it would be relevant to the mitigation of damages should Mr Rush’s claim based on the other imputations be made out, at [80].

355    The Judge heard submissions on the application for leave to amend on the afternoon of Friday, 2 November 2018. Between the morning of 30 October and the hearing of those submissions, the trial had proceeded and the Judge had heard evidence from Ms Norvill, Mr Winter, Mr Specktor, Ms Russell and Mr Marks. The Judge reserved his decision on the application and, on Monday, 5 November 2018, heard the evidence of the two accountants (Mr Potter and Mr Samuel) which was taken concurrently. That concluded the oral evidence in the trial.

356    The Judge gave his decision on the amendment application on the morning of 6 November 2018. The trial then continued with the closing submissions being heard over three days (7-9 November 2018).

The Judge’s reasons

357    The reasons in Rush (No 6) are detailed and considered. The Judge described the issue as “difficult”, noting that there were a number of conflicting considerations.

358    In relation to an earlier application by the appellants to amend their defence, the Judge had set out a number of the principles guiding the Court’s exercise of the discretion to grant or refuse leave to amend a pleading: Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; 359 ALR 564 (Rush (No 2)) at [25]-[30]. In Rush (No 6), the Judge incorporated by reference his discussion of those principles, at [81]. His Honour noted, at [92], that the principal matters to be considered in relation to the appellants’ application of 30 October were:

    the nature of the proposed amendments and their importance to the appellants’ case;

    the extent of any delay in applying for leave to amend and the adequacy of the appellants’ explanation for it;

    the prejudice to Mr Rush that would be caused by the amendment, including any prejudice that may be inferred or presumed in the circumstances;

    whether any prejudice to Mr Rush could be adequately remedied by a costs order or otherwise; and

    modern case management considerations, including the potential detriment to other litigants and the Court and the potential loss in public confidence in the legal system.

359    In relation to these matters, the Judge accepted that the proposed amendments were of considerable potential importance to the appellants’ case as the new particulars together with the foreshadowed evidence of Ms Stone were, if accepted, capable of proving the substantial truth of three of the imputations pleaded by Mr Rush, at [8], [93]-[95]. The Judge regarded the potential importance of the proposed amendments to the appellants’ case as a consideration weighing significantly in favour of the grant of leave to amend, at [98].

360    The Judge regarded the lateness of the application as a matter weighing heavily against the grant of leave to amend but accepted the appellants’ explanation that it was attributable to matters over which they had no control. The evidence indicated that, despite earlier attempts by the appellants’ solicitors to speak to Ms Stone, she had, by her lawyer, indicated a willingness to assist only on the morning of Friday, 26 October 2018. His Honour accepted that the appellants’ explanation was a matter weighing in favour of the grant of leave, at [102]-[105].

361    The Judge was satisfied that Mr Rush would be prejudiced if the amendment application was allowed. His Honour found that the prejudice lay in the following circumstances:

(a)    it would necessitate the adjournment of the trial because Mr Rush and his legal team would not be ready to deal with the foreshadowed evidence of Ms Stone within the remaining time set aside for the hearing and because it was not clear, in any event, that Ms Stone would be able to give evidence within that period, at [106];

(b)    if the trial was adjourned part-heard, there would be a delay of at least six months before it could be resumed, by reason of the Judge’s own existing commitments, at [107];

(c)    that delay by itself would be prejudicial;

(d)    Mr Rush would also be prejudiced by having to be recalled to give further evidence and subjected to further cross-examination in relation to the new allegations. It was possible that other witnesses whose evidence had been completed would also have to be recalled, at [108];

(e)    allowing the amendments would, in effect, mean that there would have to be a separate trial of the new allegations with that separate trial occurring, at best, almost six months after the “main” trial, at [109];

(f)    the delay by itself was not the only prejudice which would be caused. The Judge noted the unchallenged evidence that Mr Rush and Ms Menelaus had been under tremendous stress during the proceedings, had been particularly stressed during the days before they gave evidence, and that the process of giving evidence had taken a great emotional and physical toll on them, at [113]. The Judge accepted that Mr Rush and his wife would continue to suffer considerable stress and anxiety during any adjournment period and that the process of giving evidence, including cross-examination again, would “almost inevitably take a great emotional and physical toll on Mr Rush”, at [113]; and

(g)    given that a principal purpose of defamation proceedings is public vindication, delay and the resolution of such proceedings was a particularly significant consideration, at [115]-[117].

362    In relation to the appellants’ submission that the extent of the potential delay could be reduced if Ms Stone was permitted to give her evidence by video link, the Judge was “far from satisfied that [the appellants] have made out a compelling or persuasive case” for such a course, at [121]. However, his Honour considered it unnecessary to reach a concluded view on that question, holding that the prospect that Ms Stone’s evidence may have to be taken by video link was “a relevant, though not particularly significant, consideration”, at [122].

363    Finally, the Judge considered that the grant of the adjournment was not consistent with the achievement of the overarching purpose set out in ss 37M and 37N of the FCA Act, at [125].

364    Earlier in the reasons, the Judge had reviewed the course of the appellants’ pleading of their defence of justification. It is not necessary for present purposes to engage in the same review. It is sufficient to note these matters. The defence on which the appellants proceeded to trial was in its fourth filed iteration, being the subject of a grant of leave to amend by the Judge on 9 August 2018. The appellants had filed an initial defence on 1 February 2018 and an amended defence on 20 February 2018. Paragraphs of the amended defence had been struck out on 20 March 2018 on the application of Mr Rush on the basis that the pleaded particulars of truth were deficient and defective: Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473 (Rush (No 1)) at [55]-[108]. The appellants’ pleaded defence of qualified privilege had also been struck out at the same time. The appellants’ attempt to appeal that decision was unsuccessful: Nationwide News Pty Ltd v Rush [2018] FCAFC 70.

365    At the case management hearing (CMH) on 27 March 2018, orders were made, amongst other things, for the appellants to file any application for leave to file a further amended defence by 3 April 2018 and for the CMH to be adjourned to 9 April 2018. At the CMH on 9 April, the appellants had provided the form of their proposed defence but sought still further time to consider other amendments relating to mitigation of damage. The appellants also foreshadowed a possible cross-claim against STC. The appellants’ interlocutory applications were to be heard on 16 April 2018. On 11 April 2018 (that is, two days after the CMH on 9 April 2018), the appellants served a second proposed further amended defence, which contained amendments not foreshadowed at the CMH on 9 April. The Judge dismissed the appellants’ application on 20 April 2018: Rush (No 2).

366    On 31 July 2018, the appellants applied again to amend their defence, on the basis that Ms Norvill had now agreed to assist in that defence. On 9 August 2018, the Court made orders granting the leave sought by the appellants and deferring the commencement of the trial to 22 October 2018. At the same time, the Court made orders that the parties could not rely on any evidence not served in accordance with the Court’s programming orders.

367    On any view, the appellants had had ample opportunity to give attention to the form of their defence.

368    The Judge noted that counsel for Mr Rush had pressed repeatedly, from the very first case management hearing, for the earliest possible trial date.

369    Having reviewed the matters summarised above in considerable detail, the Judge concluded:

[127]    The weighing up of the competing considerations in this case is by no means an easy exercise.

[128]    As has already been noted, it may be accepted that the amendments and the evidence of witness X are important to Nationwide and Mr Moran’s case. The new particulars, and witness X’s expected evidence in support of them, are at least capable, if accepted, of establishing the substantial truth of the three general imputations alleged by Mr Rush. While that alone would not be sufficient to make out Nationwide and Mr Moran’s defence of justification, it would at least be capable of bearing, perhaps significantly, on the mitigation of damages. While the amendment application has been made very late in the trial, Nationwide and Mr Moran have provided an explanation for that lateness. Once they were advised that witness X would be willing to give evidence, they moved without delay.

[129]    Ultimately, however, 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, are considerations which, in my view, individually and cumulatively well outweigh everything else. In all the circumstances, and weighing up all the factors and considerations, the amendment should not be permitted and the trial should proceed to final submissions and conclude this week.

370    As is apparent, the Judge considered that, despite the importance of the amendments and of Ms Stone’s foreshadowed evidence to the appellants’ defence of justification, the lateness of the application to amend, the history of the litigation, the delay to the completion of the trial and the prejudice to Mr Rush if the amendments were allowed indicated, both individually and cumulatively, that the appellants’ application should be refused.

Consideration

371    As already noted, the appellants based their submission on the residual principle stated in House v The King, submitting that the Judge’s refusal to allow the amendments should be regarded as so unreasonable and unjust that the exercise of the discretion on the application to amend must have miscarried. The basis upon which the appellants advanced this submission was relatively confined.

372    The appellants submitted that the Judge’s reasons indicated that the most significant matter weighing against the grant of leave to amend was the prejudice to Mr Rush which would result from the trial having to be adjourned for a period of at least six months and, in effect, being bifurcated. They then noted that the Judge had not reached a concluded view on their application for Ms Stone to be permitted to give her evidence by video link. They noted that Ms Stone had said that, if permitted to give her evidence from New York by video link, she would make herself “readily available”.

373    The appellants submitted that, had the application for Ms Stone’s evidence to be taken by video link been granted, it would not have been necessary for the trial to be adjourned to April 2019. Instead, a shorter adjournment sufficient to allow Mr Rush and his legal representatives to prepare to meet the new particulars and evidence would have been sufficient, with the consequence that the prejudice to Mr Rush would have been less significant. The appellants’ submission therefore was that the exercise of the discretion had miscarried because the Judge had failed to consider the extent of the prejudice to Mr Rush on the basis that, if Ms Stone was permitted to give her evidence by video link, the period of adjournment required would have been much less than six months.

374    The fundamental difficulty for the appellants with this submission is that it was not Ms Stone’s availability which was determinative of the length of the adjournment which would be required. The two matters bearing on the length of the adjournment were the Judge’s own availability and the time which Mr Rush and his legal representatives needed in order to prepare to deal with the new particulars. Of these two matters, the Judge’s own availability was the more significant. The Judge said more than once that, if the amendment application was allowed and the trial adjourned, the earliest date on which it could resume would be in April 2019, at [7], [8] and [107].

375    Accordingly, the appellants’ present submission proceeds on a false premise because, whether or not the appellants were granted leave to adduce Ms Stone’s evidence by video link, the length of the adjournment necessitated by the grant of leave to make the amendments would have been the same.

376    The Judge’s reasons show careful attention to all the matters, pro and con, bearing upon the merit of the appellants’ application to amend, and reflect a reasoned consideration of the application. The confined nature of the challenge which the appellants made on the appeal to the decision seems to be an implicit recognition that that was so. Having reviewed the material, we consider that the Judge’s decision on the amendment application was, in the circumstances, hardly surprising.

377    Accordingly, Ground 7 is dismissed.

Damages

378    We will now consider the appellants’ grounds of appeal that relate to the Judge’s award of damages.

379    By his originating application, Mr Rush sought damages under the following heads: (1) general damages; (2) aggravated damages; (3) Andrews damages; and (4) special damages. As we have stated, the Judge awarded Mr Rush damages including interest in the total sum of $2,872,753.10. We have set out the components of the award of damages at [43] above.

380    The Judge found that the appellants had engaged in aggravating conduct. His Honour did not award Mr Rush a separate sum as aggravated damages, but took account of the appellants’ aggravating conduct in assessing damages for non-economic loss. This was the conventional approach. At common law, a separate award of damages on account of aggravating conduct of a publisher is not usually made, because it is not a discrete head of damage: The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; 9 VR 1 at [385] (Gillard AJA). That is because in a defamation case, a separate award on account of aggravating conduct would usually be difficult to assess, as the amount of an award of damages for non-economic loss “is the product of a mixture of inextricable considerations”: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 (Uren) at 150 (Windeyer J); Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44 (Carson) at 72 (Brennan J); Lower Murray Urban and Rural Water Corp v Di Masi [2014] VSCA 104; 43 VR 348 at [116] (Warren CJ, Tate and Beach JJA). Those inextricable considerations may include the conduct or malice of the publisher to the extent that it affected the harm sustained by the person defamed: Defamation Act, s 36. The terms of s 35 of the Defamation Act do not change that position so as to require that aggravated damages be separately awarded: Bauer Media at [217]-[229] (Tate, Beach and Ashley JJA).

381    There is a handful of defamation cases where a separate sum has been identified as “aggravated damages”, but these cases appear to be exceptional: Leech v Green & Gold Energy Pty Ltd [2011] NSWSC 999 at [29]; Costello v Random House Australia Pty Ltd [1999] ACTSC 13; 137 ACTR 1 at [411], [452] (affirmed on appeal [1999] FCA 1538; 94 FCR 296); Cripps v Vakras [2014] VSC 279 at [615], [744], and [776], and see on appeal, Vakras v Cripps [2015] VSCA 193 at [400]; Zwambila v Wafawarova [2015] ACTSC 171 at [117]; Weatherup v Nationwide News Pty Ltd [2016] QSC 266 at [35]; Woolcott v Seeger [2010] WASC 19 at [66]; see also, the cases cited in Collins on Defamation (Oxford University Press, 2014), at [21.28], fn (59). In Cerutti v Crestside Pty Ltd [2016] QCA 33; 1 Qd R 89, Applegarth J at [41]-[42] stated that a separate sum on account of aggravation may be identified, but his Honour acknowledged that such an assessment may make the trial judge’s task more onerous than is necessary. In Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 at [36], Beazley JA stated that it would be a preferable practice for a trial judge to identify separately the amount awarded for aggravated damages, however Meagher JA, with whom Davies AJA agreed, did not express that view.

382    As to “Andrews damages”, we prefer not to employ that label. The label is derived from the decision of the New South Wales Court of Appeal in Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 (Andrews), where the Court of Appeal (Hutley JA and Glass JA, Mahoney JA dissenting on this aspect) held that there had been no error at trial in permitting a corporate plaintiff to adduce evidence before a jury of the general nature of its business, such as the structure of the business, its earnings, and changes in them for the purpose of assisting the jury to evaluate the general effect of the defamation on its business, and that it was open to the jury to act on that evidence in assessing damages. It is relevant to a general understanding of Andrews that it was a corporate plaintiff that sought to rely on the evidence about its business, in circumstances where a trading corporation may recover damages in respect of harm to its business measurable in money, but cannot receive anything by way of solatium: see Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 586 (Neaves J) and 599-603 (Pincus J).

383    Economic loss may take many forms, including a loss of earning capacity, a loss of a proven opportunity to make an economic gain, and specific expenses that have been incurred as a result of the wrong. The use of the label “Andrews damages” suggests that the economic loss claimed in that case was a separate head of damage peculiar to defamation cases rather than an instance of the application of general principles relating to the pleading, proof, and assessment of damages for economic loss. The use of labels of this type tends to distract from questions of underlying principle: cf, the observations of Gummow J in Re Australian Elizabethan Theatre Trust [1991] FCA 344; 30 FCR 491 at 503 [38] in relation to the use of the term “Quistclose trust”. Confusion may also arise from the use of the term “general damages” unless its meaning is clear from the context. Often, that term is used to refer to damages for non-economic loss. But the term may also be understood as including damages for economic loss which are not “special damages”: see, for example, Andrews at [23] (Hutley JA), [79] (Glass JA) and [107] (Mahoney JA); Paff v Speed [1961] HCA 14; 105 CLR 549 at 559 (Fullagar J); and Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; 193 CLR 519 (Chakravarti) at [99] (Gummow and Gaudron JJ). There is also a difference between “special damage” and “special damages”, reflecting the distinction between damage in the sense of injury or harm, and the remedy of damages, as to which see: Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522 at 527. As to the term “special damage” as an element of the tort of slander and other torts that are not actionable per se such as malicious falsehood, Bowen LJ observed in Ratcliffe v Evans [1892] 2 QB 524 at 528 that the term is not always used with reference to similar subject matter, nor in the same context. Sometimes, it is used to refer to particular economic loss, such as the loss of a particular customer or contract. But proof of particular loss of that type was not necessary for slander to be actionable, because special damage could be established by proof of a general loss of business caused by the slander: Chakravarti at [98] (Gummow and Gaudron JJ), citing Ratcliffe v Evans. Spencer Bower in The Law of Actionable Defamation (2nd edition, 1923) at p 30 preferred the term “actual damage” over “special damage” in that context. No award of damages was made by the Judge in the present case expressly by reference to the principles essayed in Andrews, and we need not say anything more about it.

384    Because s 35 of the Defamation Act, which we consider later, imposes a qualified limit on the amount of damages that may be awarded for non-economic loss, it requires that a distinction be drawn between those damages which are subject to limitation, and damages for economic loss which are not subject to limitation, and they are the heads of damage that we consider should be identified.

385    The appellants challenge the Judge’s assessment of damages on the following grounds –

(1)    In relation to damages for non-economic loss, the appellants claim that –

(a)    the award of damages was manifestly excessive (Ground 13);

(b)    the Judge erred in making findings about the appellants’ aggravation of damage (Ground 14);

(c)    the Judge erred in failing to apply s 35 of the Defamation Act so as to limit the assessment of damages for non-economic loss (Ground 16).

(2)    In relation to damages for economic loss, the appellants claim that –

(d)    the Judge erred in admitting the opinion evidence of Mr Rush’s agent, Mr Fred Specktor, and the film director Mr Fred Schepisi, adduced on behalf of Mr Rush (Ground 15);

(e)    the Judge erred in awarding damages for economic loss on the premise that Mr Rush was unable to work due to the emotional effect that the articles had upon him (Ground 17); and

(f)    the Judge erred in awarding damages for economic loss for a period of two years after judgment (on a sliding scale) in circumstances where the expert evidence of Mr Rush’s agent, Mr Specktor, was that Mr Rush would resume receiving offers of work at the same rate in about 12 months (Ground 18).

386    During argument, the appellants accepted that in the event that they showed error in the Judge’s assessment of damages for non-economic loss, damages should be re-assessed by this Court. In the event that the appellants showed error in the Judge’s assessment of damages for economic loss, then the appellants sought judgment on that claim, or alternatively an order remitting that claim for re-assessment by a different judge.

Unchallenged findings

387    Before going to the detail of the appellants’ submissions, it is desirable to summarise the Judge’s findings to the extent that they related to the question of damages, and to highlight a number of findings that the Judge made that are not challenged by the appellants on appeal.

The imputations

388    The Judge at [115] found that the poster conveyed the imputation that Mr Rush had engaged in scandalously inappropriate behaviour in the theatre, noting that the appellants ultimately accepted that imputation to be conveyed, having denied it in their pleadings. As to the articles published by the appellants on 30 November 2017 and 1 December 2017, at [35]-[36] above we set out the imputations that the Judge found were conveyed. The Judge held that the defamatory imputations were unquestionably extremely serious. The only challenge on appeal to the Judge’s findings in relation to the imputations conveyed by the articles was to the finding that the articles conveyed the imputation that Mr Rush was a pervert (Ground 8), which we have rejected.

Mr Rush’s reputation

389    The Judge found that 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. At [244], his Honour referred to Mr Rush’s extensive background in film, television, and theatre. Mr Rush had received many awards, accolades and nominations. Most notably, in 1996, he received an Academy Award for Best Actor for his performance in the film, Shine. Mr Rush was also nominated for an Academy Award for his roles in Shakespeare in Love (1998), Quills (2000), and The King’s Speech (2010). He had also won three British Academy Film Awards, two Golden Globe Awards, four Screen Actors Guild Awards, and three Australian Film Institute Awards. In 2012, Mr Rush was named Australian of the Year for services to the arts and community, and on Australia Day in 2014, he was awarded a Companion of the Order of Australia for eminent service to the arts as a theatre performer, motion picture actor, role model, and mentor for aspiring artists, and through support for, and the promoting of, the Australian arts industry. He was and is renowned worldwide as a talented actor and contributor to the arts.

390    The Judge found that Mr Rush was, for the most part, an impressive witness, the only potential issue being a tendency to give long-winded and wordy answers. However, the Judge found that this feature of Mr Rush’s evidence did not reflect adversely on his credibility or the reliability of his evidence generally. As we have mentioned, the Judge held that Mr Rush was a credible witness who gave honest and reliable evidence about the critical events in question in the trial.

391    Mr Rush called evidence as to his good reputation that went essentially unchallenged. The Judge described Mr Rush’s reputation prior to the appellants’ publications as exemplary. His Honour held that the overall effect of the evidence was that Mr Rush’s reputation for integrity and probity as an actor was untarnished. At [693], his Honour referred to evidence that Mr Rush was “hugely admired and respected”, that “his integrity as an actor would never have been in question”, that he was “the consummate professional”, and as having been “held in very high esteem” in the theatre, movie, and television circles.

392    The Judge held that the publications had the effect of destroying Mr Rush’s reputation, referring at [788] to the statement of Mahoney ACJ in Crampton v Nugawela (1996) 41 NSWLR 176 at 193 that, “[i]n some cases, a person’s reputation is, in a relevant sense, his whole life.”

The extent of publication

393    The extent of publication was very significant. There was no dispute that 4,242 copies of the poster were distributed in New South Wales and the Australian Capital Territory. And the articles of 30 November 2017 and 1 December 2017 were published in the Daily Telegraph, the Advertiser, the Courier Mail, and the Gold Coast Bulletin, both in print and online. The estimated daily readership of the Daily Telegraph was 933,000, and the estimated combined daily readership of the Advertiser, the Courier Mail, and the Gold Coast Bulletin was 984,000. The hits on the website of the Daily Telegraph were 8,706 for the 30 November 2017 articles, and 15,606 for the 1 December 2017 articles. The Judge held that the story in the publications spread like wildfire throughout the world.

The hurt and distress caused to Mr Rush by the publications

394    The Judge held at [702] that the overall impression given by the evidence was that Mr Rush was devastated by the publications. His Honour described Mr Rush’s evidence about the hurt to his feelings as compelling, and held at [708] that it was also quite obvious from Mr Rush’s demeanour while he was giving evidence, particularly in relation to the effect of the articles, that he had been deeply hurt and traumatised by the articles. His Honour stated that Mr Rush presented as a man who, somewhat curiously given his craft, was not always entirely comfortable or forthcoming when speaking publicly about his own emotions, but that the devastating effect of the articles on him was nevertheless obvious. The Judge also accepted a significant body of evidence from witnesses, including Mr Rush’s wife, Ms Jane Menelaus, who spoke of the profound effect that the publications had on Mr Rush in the 11 month period from the time of the publications until the trial of the proceeding. Having regard to the appellants’ challenges to the awards of damages, it is desirable to set out some of the Judge’s unchallenged findings in relation to the evidence of the devastating effect which the publications had on Mr Rush.

395    The Judge at [710]-[712] referred to the evidence of Ms Menelaus:

710    Ms Menelaus’ evidence was that when Mr Rush became aware of the publication of the 30 November 2017 articles he was “[b]amboozled, lost, going around in circles” and in “[t]otal and utter unbelievable shock”. She recalled that when Mr Rush read the article, he cried. Her evidence was:

And did he say anything to you about how he felt about it?---Yes. He said, “They’ve just destroyed everything I’ve tried to do with this – with this role,” and he wept. He put his arm around me and wept.

711    Ms Menelaus described Mr Rush’s demeanour since the publications in the following terms:

And how did his demeanour appear?---Well, in fact, I would say that, even though things have got so much worse since this – and let me tell you, really worse – the accusations that he had been accused of were appalling. This is like the tip of an iceberg but the worst response, I think, was this very first one. It just kicked him in the gut and I think it’s – I don’t think he has actually recovered from these first two pictures.

What did you observe about him that made you think that?---He retrieved – he retracted – mentally, he would go round and round and round in circles. He didn’t speak for a very long time that day – the very first day these two photographs came out, he went very quiet, which is not like Geoffrey.

We’ve observed that in the last two days?---Yes. Yes. He was quite fetal at times on the bed. He put his head in his hands. He couldn’t sleep. He groaned every morning when he – he said to me, “I dread going to bed and I dread waking up.” Our days have been – our days for 11 months have been appalling. Our 11 months, I would say, were like Groundhog Day, except in Groundhog Day, it’s the same day. With this, it got worse and worse and worse and - - -

....

And over that period – you’ve told his Honour already how the last 11 months have been. Is there anything else that you wanted to tell his Honour that you’ve observed about Mr Rush over the last 11 months that you haven’t seen in him over the last 13 years?---Yes, I saw a man so altered and changed. His eyes sunk into his head. He retreated very much from – well, from the world. Although we tried to get him to go out – my son especially tried to get him to go out. We took – the family took him away after this second lot of articles came out. We wanted – my mother had died in the middle of that. And we wanted – he – the children were very worried that he was – and he was retreating into a sort of solo world. He would get up very late, he would not speak for a lot of the day. I was – we were losing him, and to a certain extent we have – he has altered. I don’t know that – it will take us a very, very long time to get over this, and I don’t think parts of this – we’ve – our approach to the world and people has changed, and I – I think Geoffrey will take a very – we will all take a very long time to get over it.

396    At trial, senior counsel for the appellants did not challenge any of the above evidence when he cross-examined Ms Menelaus.

397    The Judge at [712] referred to the evidence of Ms Robyn Kershaw, who was a film and television producer, and who had known Mr Rush and his family for many years:

712    Ms Kershaw described how after the publications Mr Rush was “laden with grief” and that he “stopped laughing”. He appeared to be obsessed by the allegations to the point where his whole life appeared to be subsumed by the allegations. Ms Kershaw noted how Mr Rush had stopped talking about work, as he had done before the publications, and that “all of his body – everything – all of his DNA [appeared to be] subsumed by the grief that he is carrying, and the injustice...”. Ms Kershaw observed that Mr Rush had lived in a “very dark place” since the publications, that … “the effects of the publications on Mr Rush have been massive” and that she feared that he will never be able to recover from this period in his life.

398    At trial, senior counsel for the appellants did not challenge Ms Kershaw in relation to any of the evidence referred to above when he cross-examined her.

399    The Judge at [713] referred to the evidence of Ms Marnie O’Bryan, a university academic, who had known Mr Rush and his wife since about 2001, and who counted Ms Menelaus as one of her closest friends –

713    Ms O’Bryan visited Mr Rush and Ms Menelaus a few days after the publications. She observed that they were both extremely agitated, that there was “almost nonstop crying” and that they were “not functioning very well”. Her evidence was that, since the publications, Mr Rush and Ms Menelaus have been “extremely socially isolated” and that it is “like they’re in house arrest”. She described the change in Mr Rush’s demeanour since the publications in the following terms:

What have you noticed?---Geoffrey has always been a very ebullient kind of person, he’s a very warm person, he’s a person who’s very engaged in conversation. Geoffrey is someone who will inquire after you and what you’re doing, and – you know, he has always been incredibly generous in sharing his knowledge. He has got this encyclopaedic knowledge of film, theatre, and classics, and the arts. And for me, going into teaching, he would be incredibly generous about saying, “What are you teaching? What are you– “ you know, we would have long discussions about Shakespeare in particular. In the last 11 months, the only thing that he has thought about has been this case. And there has been a sense in which he has expressed, many times, that this is the end of his life as he knows it. That he can’t see himself going back to acting, he – he has always believed that the audience is with him, and he says to me, “I can’t – “you know, you make yourself vulnerable when you go on stage[”], and “I can’t make myself vulnerable if I think the audience is not with me, and I don’t know that they are anymore.” And I think that’s a loss to all of us.

400    None of this evidence was challenged by senior counsel for the appellants when he cross-examined Ms O’Bryan.

401    The Judge at [714] referred to the evidence of the eminent Australian film director, producer and screenwriter, Mr Fred Schepisi AO, who had known Mr Rush for 14 years, with a friendship between their families developing from their professional relationship:

714    Mr Schepisi’s evidence was that, after the publications, it was hard to get in contact with Mr Rush because he and Ms Menelaus did not want to speak to anybody and found it difficult to leave the house. When he eventually went around to their house, he described Mr Rush as a “basket case”. Mr Schepisi observed that since that time, despite the “good face” that Mr Rush was putting on, he could see that Mr Rush was “still entirely rattled and not – not actually being able to look forward to what life was going to hold for him”.

402    Senior counsel for the appellants cross-examined Mr Schepisi about a range of matters relating to the processes of film inception, financing, development, and production, the comparison of Mr Rush to other actors, and the opinions of an expert witness, Mr Marks, who was called by the appellants. However, no challenge was made to any of Mr Schepisi’s observations of Mr Rush that are referred to above.

403    Finally, the Judge at [715] referred to the evidence of Ms Robyn Nevin in this context:

715    Ms Nevin saw Mr Rush and Ms Menelaus shortly after the publications. She described how Mr Rush was in a “state of confusion”. He was “going over it obsessively ... [h]e just didn’t understand”. She stayed with Mr Rush and Ms Menelaus in Umbria, Italy in mid-2018. She was hoping that would be a “time of peace and reparation for them, but that wasn’t the case”. She particularly empathised with Mr Rush because she had a “similar kind of deep connection” to her work as an actor and she observed that he appeared to be losing the sense of being able to act. That appeared to be obvious to her from her more recent contact with Mr Rush. Her evidence in that regard was as follows:

And have you seen him more recently? Have you observed how he is more recently?---I do beg your pardon. Yes. I saw Geoffrey recently in Melbourne, and he – I think he – he had moved to the next stage following on from the mid-year since that – he was losing his capacity to work. He actually said, “I’m grieving for the loss of” – this, by the way, is an actor’s brain, because I observed Geoffrey doing this. I’m crying now, but at the time the actor observed him. He said, “I’m grieving for the loss of walking into” – I think I’m – I think it’s a correct quote – “walking into a room and not being able to start.” The word “start” carries such a wealth of meaning. It’s a kind of deadening. He’s talking about a kind of death, really.

404    When senior counsel for the appellants cross-examined Ms Nevin, he did not challenge her account of Mr Rush’s reaction to the publications.

Aggravation

405    At trial, Mr Rush alleged that the appellants were actuated by malice and had engaged in conduct that aggravated the harm that he sustained. Neither the journalist, Mr Moran, nor any other employee of Nationwide News involved in the publications, gave evidence to answer those claims. By their notice of appeal, the appellants challenge one finding of the Judge relating to aggravation, namely that the pleading of truth in their amended defence was unjustified. Otherwise, the Judge made extensive findings of aggravating conduct by the appellants which are not the subject of any challenge on appeal, and which we shall now summarise.

The 30 November 2017 publications

406    The Judge held that the defamatory imputations conveyed by the poster and the 30 November 2017 articles were published in an extravagant, excessive, and sensationalist manner. His Honour stated that the most striking feature of the articles of 30 November 2017 was that despite the relative paucity of objective information available to the appellants, the articles occupied almost the entire first page of the Daily Telegraph, and a double page spread on pages four and five. The Judge held that the contents of the first page, and its headline “KING LEER” was intended to be a direct and full-frontal attack on Mr Rush’s reputation. His Honour also held that the double page spread on pages four and five was equally excessive and sensationalist. His Honour held that the motive of the appellants was to boost sales and increase circulation by the publication of sensationalist articles concerning the #MeToo movement. The Judge found that the appellants were reckless as to the truth or falsity of the defamatory imputations conveyed by the 30 November 2017 articles, and had failed to make adequate inquiries before publication. We shall refer to this failure further below.

407    His Honour found that the appellants must have known of the damage that the publication of the 30 November 2017 articles would inflict on Mr Rush, and that it was difficult to avoid the conclusion that the articles were calculated to damage. His Honour found that there was an inescapable inference that Mr Rush’s hurt and injury was substantially increased by the extravagant and sensationalist nature of the 30 November 2017 articles, and further, that the evidence of both Mr Rush and his wife clearly established that to be the case.

The 1 December 2017 articles

408    The Judge found that there were a number of features of the 1 December 2017 articles that supported an inference that the conduct of the appellants in publishing them lacked bona fides, and was in any event improper and unjustifiable. Those features included conveying the false impression that two actors referred to in the articles knew of the details of the allegations against Mr Rush, and had effectively confirmed that alleged inappropriate touching had occurred. The Judge found that the journalist, Mr Moran, who is the second appellant, knew that this impression was false. His Honour’s findings as to the circumstances in which Mr Moran knowingly conveyed the false impression are set out at [747]-[757] of his Honour’s reasons, none of which is challenged.

409    Further, the Judge referred to a statement in one of the 1 December 2017 articles that “[d]espite denials, Rush was told who made the claims in a phone call with the executive director Patrick McIntyre weeks ago”. That statement formed the foundation of the imputation that Mr Rush had falsely denied that the Sydney Theatre Company had told him the identity of the person who had made the complaint against him. The appellants did not ever seek to justify that imputation, and the Judge found that Mr Moran knew that the statement was false, or at least was reckless in this regard.

410    The Judge found that the 1 December 2017 articles were another piece of recklessly irresponsible journalism that included misleading statements to “bootstrap” the story in the previous day’s publications. His Honour held that these features of the 1 December 2017 articles caused an increase or aggravation of the harm and hurt suffered by Mr Rush.

The course of the litigation

411    The Judge held that Mr Rush’s hurt and distress had been aggravated by the way in which the appellants had conducted their defence of the proceeding. His Honour took care to make clear that he did not consider that the conduct of senior counsel for the appellants at the trial was lacking bona fides, or was otherwise improper or unjustifiable. However, his Honour held that the conduct of the trial stood in stark contrast to the conduct of the proceedings as a whole, and in particular the delays occasioned by the appellants’ conduct, and the pleading and reporting by Nationwide News of allegations that turned out to be false. As we have mentioned, one aspect of those findings is challenged by the appellants, namely the pleading of the amended defence, and we shall return to consider that issue in greater detail.

The cap on damages did not apply

412    In consequence of the findings that the Judge made in relation to aggravation, his Honour held that the cap on damages under s 35 of the Defamation Act did not apply. There is no challenge to the finding that the cap did not apply, but the appellants have raised on appeal arguments that were not raised below concerning the operation of s 35, to which we shall return.

413    We shall now consider the grounds of appeal relating to the Judge’s assessment of damages. As the claim in Ground 13 that the award of damages for non-economic loss was excessive really arises if no specific error is established, we shall address that ground after addressing Grounds 14 and 16, and we shall address Ground 15 concerning the admission of evidence when considering damages for economic loss.

Aggravation of harm (Ground 14)

414    There was a range of aggravating conduct by the appellants which the Judge took into account in assessing damages for non-economic loss. As we have stated, only one aspect of that aggravating conduct is the subject of challenge on appeal, namely the Judge’s findings in relation to the circumstances in which the appellants came to plead truth in their amended defence filed on 19 February 2018, the material paragraphs of which were subsequently struck out.

415    The appellants filed their defence on 1 February 2018, and by an amended defence filed on 19 February 2018, the appellants supplemented some of their particulars. By their amended defence, the appellants made the following allegations that are material to the Judge’s findings in respect of aggravation. First, the appellants alleged that on or about 5 January 2016 during the final scene of a performance of King Lear, Mr Rush had touched Ms Norvill in a manner that made her feel uncomfortable, and that following this performance, Ms Norvill had said words to the effect, “stop doing it”. The appellants alleged that notwithstanding this demand, Mr Rush repeated the conduct on four occasions on 6, 7, 8 and 9 January 2016. Second, the appellants alleged that on 9 January 2016 at an after-party held at a restaurant for the cast and crew of King Lear, Mr Rush entered the female bathroom and stood outside a cubicle occupied by Ms Norvill, who told him to “fuck off”. Mr Rush applied to have these allegations struck out. The hearing of that application occurred on 19 February 2018, following which on 20 March 2018, the Judge struck out the allegations: Rush (No 1). The allegations were not further pursued by the appellants, and following the trial, the Judge found that it was abundantly clear from the evidence given in the proceeding that the incidents the subject of the allegations never occurred.

416    On 20 February 2018, which was the day after the hearing of the application by Mr Rush to have the allegations made in the appellants’ defence struck out, and after a temporary suppression order had been lifted, the Daily Telegraph published a front page story which contained details of the amended defence. The front page contained a large photograph of Mr Rush and Ms Norvill during rehearsals of King Lear and a large headline “STOP DOING IT”. Above the photograph was another headline within a red box, “THE TELE ON TRIAL”. A smaller, though still prominent, headline stated: “Court hears allegations Rush touched actor five times & confronted her in female toilets”. The front page and pages 6 and 7 of the Daily Telegraph of 20 February 2018 are reproduced in Annexure E to these reasons. The Judge held at [768] that the front-page headline and accompanying article suggested that the Court had “heard” those allegations, when in fact they were simply lifted from the amended defence.

417    In striking out the appellants’ truth defence in Rush (No 1), the Judge held that the appellants’ particulars were so imprecise and lacking in specificity, and their meaning was so unclear, that it was difficult to know exactly what was alleged against Mr Rush, and that the particulars were likely to prejudice Mr Rush’s preparation and presentation of his case at trial. His Honour also held that the problems with the particulars of truth, namely their paucity of detail, ambiguity, and lack of specificity, were compounded when consideration was given to their capacity to justify the imputations to which they related. His Honour held that the particulars, taken at their highest, were not capable of proving the substantial truth of any of the imputations sought to be justified. His Honour observed that the appellants had been given ample opportunity to supplement the particulars and were unwilling, or more likely, unable to do so.

418    On 27 April 2018, the Full Court refused an application for leave to appeal the orders of 20 March 2018 to the extent that certain paragraphs relating to the defence of statutory qualified privilege were struck out holding, inter alia, that no sufficient doubt existed as to the correctness of the Judge’s orders: Nationwide News Pty Limited v Rush [2018] FCAFC 70. There was no application for leave to appeal the Judge’s orders to the extent that the truth defence was struck out.

419    By interlocutory orders made before trial on 9 August 2018, the appellants were given leave to file a second further amended defence. By that defence, the appellants introduced a newly-formed defence of truth, and removed the allegation of statutory qualified privilege. A solicitor for the appellants, Ms Marlia Saunders, made an affidavit dated 31 July 2018 in support of the appellants’ application for leave to amend their defence. That affidavit makes plain that despite attempts, the appellants and the appellants’ lawyers had not ever spoken to Ms Norvill prior to filing their amended defence, and in fact had been informed prior to filing the amended defence that Ms Norvill was unwilling to speak to them, and did not wish to give evidence in the proceeding.

420    The 31 July 2018 affidavit of the appellants’ solicitor was relied on by counsel for Mr Rush at trial in support of the claim of aggravating conduct by the appellants. The affidavit was also included in the appeal book, and was relied on by Mr Rush on this appeal. However, the affidavit does not appear to have been tendered in evidence at trial. Nonetheless, at trial it was not disputed by the appellants that they had not spoken to Ms Norvill before their application to file their second further amended defence in August 2018, “and not for a considerable period afterwards”, as the following statements at trial by senior counsel for the appellants demonstrate:

MR BLACKBURN: Come back to it. Your Honour, I’m not sure whether this is in evidence or not, but on our side of the bar table, and, indeed, the respondent’s generally, we weren’t able to speak to Ms Norvill before that application was made and not for a considerable period afterwards. And I’m – hear from this side of the bar table, there’s no evidence of that, but I will check on that. It may actually be contained in the affidavit that was used to amend the defence, and if that information is there, I may have an application to make to put that in, but it’s the facts, your Honour. I know I’m giving it from the bar table, but no one got to speak to her on our side, the respondent’s, before that application was made. Not for some time afterwards. But in any event, be that as it may, if your Honour looks at transcript page 639 - - -

421    The Judge held that the pleading of the allegations in the amended defence and the reporting of them in the Daily Telegraph were unjustified, and that there could be little doubt that Mr Rush’s hurt and distress had been aggravated by the way in which the appellants had conducted their defence of the proceeding. His Honour’s findings on this topic concluded at [771]-[773]:

771.    It would appear to be fairly clear from the events that have transpired since that time that Nationwide and Mr Moran included those allegations in the amended defence at a time when they had not spoken to Ms Norvill. It may be inferred that the allegations were made on the basis of the contents of Ms Crowe’s email dated 6 April 2016, or possibly a hearsay account of the contents of that email or the general nature of Ms Norvill’s complaint provided by someone else. In this proceeding, Nationwide and Mr Moran submitted, on the basis of evidence given by Ms Norvill in re-examination, that Ms Crowe’s email was unreliable because Ms Crowe had “drunk a lot” when she had met with Ms Norvill the previous night.

772.    The obviously hearsay or second-hand account of the particulars of Ms Norvill’s complaint did not constrain Nationwide and Mr Moran from pleading those particulars in support of their initial truth defence. Nor did it constrain them from splashing them all over the front page of the Telegraph on 20 February 2018.

773.    I am firmly of the view that the pleading of those allegations in the amended defence was unjustified. I am equally firmly of the view that the republication of those allegations on the front page of the Telegraph on 20 February 2018 was also improper and unjustifiable in all the circumstances.

422    The appellants submitted that on the question of aggravation, the Judge had been critical of the appellants for relying on the email of Ms Crowe of 6 April 2016 or a hearsay account of it in circumstances where, at trial, the appellants had submitted that it was unreliable. The appellants submitted that there was nothing lacking in bona fides, improper, or unjustifiable about their conduct in this regard. They submitted that on its face, the Crowe email was a serious email from the company manager of the Sydney Theatre Company to a director of the company discussing serious allegations that Ms Crowe received first-hand the day before. They submitted that there was no reason on its face to doubt its reliability, that it provided a basis for the pleading of the allegations in the initial defence, and it was entirely permissible for the appellants to rely upon it. The appellants submitted that the Judge’s criticism of them for relying upon a hearsay or second hand account of Ms Norvill’s complaint of the allegations made in the initial defence placed too high a burden on the obligation of a party in pleading allegations. They submitted that at the time of filing the initial defence, there was no reason for the appellants to believe that if they issued a subpoena to Ms Norvill to give evidence at the hearing, she would give evidence otherwise than consistently with the account set out in the email. They submitted that, in those circumstances, there was nothing lacking in bone fides, improper, or unjustifiable about their conduct.

423    As to the article published on 20 February 2018, the appellants submitted that the article related to the contents of the amended defence and was published after a temporary suppression order had been revoked: see, Rush (No 1) at [8]. They submitted that, accordingly, the amended defence was a document that the public was entitled to inspect pursuant to r 2.32 of the Federal Court Rules 2011 (Cth), and that public access to pleadings forms an important part in the system of open justice. The appellants submitted that the media are the conduit by which the public are informed of what is transpiring in proceedings in court, and it was in this context that the 20 February 2018 article was published. Further, the appellants submitted that the article was likely to be considered a fair report of proceedings of public concern, pursuant to s 29 of the Defamation Act, as the Judge accepted, and that it was also likely to be protected as a fair report of a public document pursuant to s 28 of the Defamation Act, citing Cummings v Fairfax Digital Australia and New Zealand Pty Ltd [2018] NSWCA 325; 366 ALR 727. The appellants submitted that it was difficult to see how it could be found to be lacking in bona fides, improper, or unjustifiable to do something that would be defensible pursuant to law. The appellants submitted that, in the circumstances, the Judge erred by awarding aggravated damages on this basis, and that the finding should be set aside. The appellants submitted that if this ground was successful, then compensatory damages would need to be reassessed.

Consideration of Ground 14

424    The appellants’ Ground 14 was more confined than the submissions that they advanced in support of it, as the notice of appeal did not make any complaint about the Judge’s finding that the publication in the Daily Telegraph on 20 February 2018 was improper and not justifiable in all the circumstances. However, notwithstanding the narrow scope of Ground 14, we shall address the submissions that the appellants advanced.

The pleading of the defence and amended defence

425    In publishing the matters the subject of Mr Rush’s claim, the appellants made a calculated, public attack on Mr Rush of a most serious kind. As we have noted, the publications were aggravated by a number of features of the appellants’ conduct that are not challenged. Of particular relevance for present purposes is the unchallenged finding by the Judge at [737] that the conduct of the appellants in publishing the 30 November 2017 articles was, in all the circumstances, unjustified and improper because they were reckless as to the truth or falsity of the defamatory imputations conveyed by the articles. The Judge regarded as significant that the appellants had failed to make adequate inquiries before publication, including by failing to speak to Ms Norvill and confirm the details of the complaint with her. The Judge held at [738] that in those circumstances, it was manifestly reckless to convey the defamatory imputations, particularly in the sensational and extravagant manner in which they were conveyed by the publications. As to the 1 December 2017 articles, we have referred at [408]-[410] to some of the features that led the Judge to find that the conduct of the appellants in publishing them lacked bona fides, and was in any event improper and unjustifiable.

426    In relation to pleading a defence of justification, the authors of Gatley on Libel and Slander (12th edition, Sweet & Maxwell) state at [27.6]:

A pleader should not put a plea of justification on the record lightly or without careful consideration. Before pleading justification, a defendant should (1) believe that the words complained of… are true, (2) intend to support the defence at trial and (3) have reasonable evidence to support the plea or reasonable grounds to suppose that sufficient evidence to prove the allegations will be available at trial.

427    A similar statement is made in Collins on Defamation (2014, Oxford University Press) at [8.62]. The principles are supported by the reasons of Neill LJ, with whom Steyn LJ and Peter Gibson LJ agreed, in McDonald’s Corp v Steel [1995] 3 All ER 615 at 621. In giving this guidance, Gatley states that, “[t]he defendant should bear in mind that it is possible that a failure to establish a plea of justification at the trial will be permitted to be taken in aggravation of damages”. As we discuss below, in Australia that will be the case if the pursuit of such a defence is unjustified, improper, or lacking bona fides.

428    In assessing damages for non-economic loss, a court may take account of a publisher’s conduct up until the time of verdict. In Praed v Graham (1889) 24 QBD 53, Lord Esher MR, in a frequently cited passage, stated:

… the jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they give their verdict. They may consider what his conduct has been before action, after action, and in court during the trial.

429    In this passage, which is broadly expressed, Lord Esher did not refer in terms to aggravated damages, and it may not have been necessary for his Lordship to draw a distinction between general compensatory damages, aggravated damages, and exemplary damages: see, The Herald & Weekly Times Ltd v McGregor [1928] HCA 36; 41 CLR 254 at 265 (Isaacs J); David Syme v Mather [1977] VR 516 at 527 (Lush J); Andrews at [41] (Hutley JA); Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 495-496 (Hunt J). Nonetheless, in assessing damages for non-economic loss generally, a publisher’s conduct after publication may be relevant. That is because an early withdrawal and apology may operate to mitigate the harm, and on the other hand, persistence in seeking to justify an allegation may serve to amplify the harm: Coyne v Citizen Finance [1991] HCA 10; 172 CLR 211 at 237-238 (Coyne) (Toohey J, with whom Dawson J and McHugh J agreed).

430    Aggravated damages may be awarded by way of compensation for injury resulting from the circumstances and manner of a publisher’s wrongdoing, such as conduct which manifests malice: Uren at 130 (Taylor J) and at 149 (Windeyer J); Carson at 71 (Brennan J); New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 at [31] (the Court). Where malice is in issue, s 36 of the Defamation Act provides that the Court is to disregard the malice or state of mind of the defendant except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. The harm caused to a person by the conduct of the publisher, and the circumstances and manner of publication may be inferred: Andrews at [74] (Glass JA). As we have stated, in the present appeal there is no challenge to the Judge’s findings in support of the conclusion that the manner in which the appellants published the defamatory matters aggravated the harm to Mr Rush.

431    In addition, a publisher’s conduct after publication may be taken into account, both as evidence of malice at the time of publication, and as improperly aggravating the injury done to the person defamed. In Sutcliffe v Pressdram Ltd [1991] 1 QB 153, Nourse LJ at 184 summarised the principles as follows:

The conduct of a defendant which may often be regarded as aggravating the injury to the plaintiff’s feelings, so as to support a claim for “aggravated” damages, includes a failure to make any or any sufficient apology and withdrawal; a repetition of the libel; conduct calculated to deter the plaintiff from proceeding; persistence, by way of a prolonged or hostile cross-examination of the plaintiff or in turgid speeches to the jury, in a plea of justification which is bound to fail; the general conduct either of the preliminaries or of the trial itself in a manner calculated to attract further wide publicity; and persecution of the plaintiff by other means.

432    However, not everything done by a publisher in the defence of a proceeding can be taken into account as aggravation. A bona fide defence raised properly or justifiably in the circumstances known to the publisher cannot be used for such purpose. The corollary is that “the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication, or afterwards, as, for instance, filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable”: Triggell v Pheeney [1951] HCA 23; 82 CLR 497 at 514 (Dixon, Williams, Webb and Kitto JJ); Carson at 65 (Mason CJ, Deane, Dawson and Gaudron JJ). The reason for the requirement that conduct in the course of defending a proceeding must meet the threshold of being unjustified, improper or lacking bona fides in order to qualify as a basis for awarding aggravated damages is the unfairness that would result if proper conduct in the pursuit of a legitimate defence exposed a publisher to increased damages on that account: Coyne at 237 (Toohey J), citing Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 379 (Samuels JA).

433    In relation to the conduct of counsel and solicitors for a publisher in the course of a proceeding, there is no necessary correlation between conduct that may be characterised as unjustified so as to attract an award of increased compensatory damages, and a breach of ethical obligations, such as those in the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 64 and r 65, and the corresponding provisions in the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 21.3 and r 21.4. The question whether conduct by or on behalf of a publisher is unjustifiable, or improper, or lacking bona fides is a broader enquiry, as Walsh JA explained in Rigby v Associated Newspapers [1969] 1 NSWR 729. However, whether there has been a breach of ethical standards may be a proper matter for consideration where it arises: David Syme and Co Ltd v Mather [1977] VR 516 at 530 (Lush J). In Rigby, counsel for the defendant had subjected the plaintiff to a lengthy cross-examination, and on appeal, the plaintiff submitted that the jury was entitled to take this into account in assessing damages. Walsh JA stated at 740:

I do not think it necessary to go further into the details of these matters or into the reasons advanced for the appellant for saying that they were all within the area of the bona fide and proper defence of the action and the rebuttal of claims made by or evidence given by the plaintiff. I think the question is not whether what was done was “legitimate”, in the sense of not infringing either the rules of evidence or the ethical standards of advocacy. The question is rather whether, in the end and in all the circumstances of the case as found by the jury, the conduct of the case was capable of being regarded by them as not “bona fide” or not “justifiable” on the part of the appellant, in its resistance to the claim of the respondent. This does not mean that, if a particular line of defence is taken but is, in the end, rejected by the jury, it is always within the province of the jury to increase the damages for that reason. But a line of attack on a plaintiff may be followed out in such a way and to such a degree that it may in the end be open to a jury, upon finding that in fact it had no substance, to regard it as not being justifiable as between the parties, and as increasing the hurt done to the plaintiff. … I think that there were features in the conduct of the case which were such that, if the jury found, as it might and as the event showed that it did, that the publications were not made in good faith and that the respondent, in setting up a just claim that he had been defined, was a truthful witness, could conclude that the conduct of the case by the appellant was not in all respects bona fide and justifiable in the sense I have stated above.

(Emphasis added)

434    The above passage was referred to by Lush J in David Syme and Co Ltd v Mather at 530, and was approved by Meagher JA, with whom Davies AJA agreed, in Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 at [8]. The potentially broad nature of the enquiry as to whether the pursuit of defences was improper, or unjustified, or lacking bona fides, is illustrated by Bauer Media, where it was held on appeal that the pursuit of defences by the publishers supported an award of aggravated damages, notwithstanding that there had been no impropriety by trial counsel. On this aspect of the decision in Bauer Media, it is necessary to have regard to [93]-[106] of the Court of Appeal’s reasons, which are not reproduced in the Victorian Reports. In Bauer Media, the publisher was held to have known that it published false and defamatory imputations in order to maximise its commercial opportunities, and the Court of Appeal held that the pursuit by the publisher of a justification defence in those circumstances was unjustifiable, improper, and not bona fide. However, the Court also held that there had been no improper or unjustifiable behaviour by counsel in running a case based upon the evidence, and which was open to have been accepted by the trier of fact, being the jury.

435    In Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; 371 ALR 545 at [141], the Full Court stated that a person who publishes a serious allegation and who seeks to defend it as being true will have to be in a position to specify, by way of particulars to a defence, the factual material that justifies the allegation: see also, Zierenberg v Labouchere [1893] 2 QB 183 at 189 (Kay LJ). If upon proper material a defence of justification has sufficiently pleaded an underlying factual basis, it may later be augmented after invoking processes of discovery and production of documents by subpoena: Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 at [40] (Kenneth Martin J); Pahuja v TCN Channel Nine (No 2) [2016] NSWSC 1074 at [19] (McCallum J).

436    When the appellants filed their defence on 1 February 2018, and their amended defence on 19 February 2018, they were not in a position to specify by way of particulars the factual material that was capable of supporting the imputations that they sought to justify. The Judge found that the appellants published the 30 November 2017 articles without the journalist having spoken to Ms Norvill, and knowing that she did not wish to have her identity revealed. It is a striking feature of this case that the appellants filed their defence and their amended defence in circumstances where they still had not spoken to Ms Norvill, and had not taken any instructions from her. This was in circumstances where Ms Norvill was the only person who could reasonably have been expected to give admissible evidence to support the imputations that the appellants sought to justify. Further, it appears at least from the concession made by senior counsel for the appellants at trial to which we referred at [420] above, that at the time the appellants filed their defence and their amended defence, Ms Norvill was not prepared to make herself available to speak to the appellants. The appellants did not submit that Ms Crowe’s email of 6 April 2016 would have been admissible to prove the truth of the hearsay statements within it, and when it was admitted into evidence at trial, it was admitted only as a business record of what Ms Norvill had said to Ms Crowe: see the Judge’s reasons at [359]. And because the appellants had not spoken to Ms Norvill, they did not know whether, if subpoenaed, she would give an account in accordance with Ms Crowe’s email. We do not accept the appellants’ submission that they had no reason to believe that she would not do so. In the absence of any contact with Ms Norvill, and having regard to the effluxion of time and the appellants’ knowledge that Ms Norvill did not wish to speak to them, Ms Crowe’s email provided the appellants with no more than a basis for surmising that Ms Norvill might give evidence about the matters recorded in it, which were intermingled with Ms Crowe’s own commentary.

437    The absence of any instructions from Ms Norvill had the direct consequence that the appellants did not have sufficient material to support their justification defences, in consequence of which the relevant particulars in the defence were struck out on the grounds that they were imprecise, vague, and ambiguous, and were not capable of justifying the very serious imputations to which they were directed. Against the background of the malevolence that the appellants had demonstrated towards Mr Rush which was evident from the content and circumstances of the publications, the appellants’ conduct in advancing their defence and amended defence based on such slender material and without having spoken to Ms Norvill was cavalier, and in all the circumstances of the case, we consider that there was no error by the Judge in concluding that the appellants’ conduct in this regard was unjustified.

The publication on 20 February 2018 in the Daily Telegraph

438    The appellants claim that the Judge was in error in taking into account the republication of the allegations in the amended defence on the front page of the Daily Telegraph on 20 February 2018. The appellants submitted on appeal that the publication on 20 February 2018 was protected under s 28, or alternatively, s 29 of the Defamation Act, and therefore could not be taken into account as aggravating the harm suffered by Mr Rush. The appellants did not cite any authority that supported these submissions.

439    The Judge stated at [770] that Mr Rush had no real recourse against Nationwide News in relation to the publication of 20 February 2018 because it was likely to be considered a fair report of proceedings of public concern for the purposes of the statutory defence under s 29 of the Defamation Act. This was not a finding that the publication was protected, but was directed to the reality that Nationwide News would likely defend the article as a protected report. For our part, we are not persuaded that the article was a fair report of the hearing of Mr Rush’s application to strike out material parts of the appellants’ defence, because we doubt that the report was substantially accurate: see the principles and the authorities referred to in Chakravarti at [2]-[4] (Brennan CJ and McHugh J), [42] (Gaudron and Gummow JJ), and [153] (Kirby J). The Judge at [768] referred to the fact that the front page of the Daily Telegraph suggested that the Court had “heard” the allegations, when they were simply lifted from the amended defence. We would add that the headline on the front page, “THE TELE ON TRIAL”, was also misleading, and was calculated to support a false impression that a “trial” was taking place at which allegations were “heard”. The defence under s 29 of the Act may be defeated if the plaintiff proves that the defamatory matter was not published honestly for the information of the public or for the advancement of education. A fair and honest report of the hearing of 19 February 2018 would have given prominence to the fact that the hearing was concerned with the sufficiency and propriety of the appellants’ amended defence, which Mr Rush sought to have struck out. That important feature of the hearing is not reported in the article until midway through the third column on page 6 of the newspaper, and is mentioned again only briefly in the fifth column on page 7. The true nature of the hearing was otherwise swamped by the inaccurate headlines, and the attention given to the gratuitous and sensationalised republication of the allegations in the amended defence. We are therefore not prepared to assume, and indeed we are not persuaded, that the article was protected under s 29 of the Defamation Act as a fair report of the hearing of the interlocutory applications on the previous day.

440    On appeal, the appellants also relied on s 28 of the Defamation Act, which creates a statutory defence to the publication of defamatory matter if the defendant proves that the matter was contained in a public document, or a fair summary or a fair extract from a public document. That defence also may be defeated if the plaintiff proves that the defamatory matter was not published honestly for the information of the public or for the advancement of education. The appellants submitted that the articles in the Daily Telegraph on 20 February 2018 were likely to be protected under s 28 of the Act because the amended defence was a public document for the purposes of that section on the ground that the public was entitled to inspect it pursuant to r 2.32 of the Federal Court Rules. Whether on the evidence the amended defence was in fact available for public inspection at the time of publication of the Daily Telegraph articles on 20 February 2018 was not explored by the appellants. Although the copy of the amended defence in the appeal book states that it was lodged with the Court electronically on 19 February 2018 at “8:00:02 PM AEDT”, it was not sealed by the Registrar until the following day, 20 February 2018, at “12:38:18 PM AEDT”. In these circumstances, and in the absence of findings made by the Judge, we are not prepared to assume that the amended defence was open to public inspection at the time of first publication of the articles in the Daily Telegraph on 20 February 2018. And having regard to the other features of the case and especially to the Judge’s unchallenged findings about the appellants’ reckless, improper, and unjustified conduct, we are not prepared to assume, in the absence of findings, that the defence under s 28 would not be defeated on the ground that it was not published honestly.

441    For the foregoing reasons, we do not accept the premise of the appellants’ argument, namely that the publication of the article on 20 February 2018 was defensible according to law. But moreover, the submission that the publication of the article would be defensible if Mr Rush had brought a proceeding for damages in respect of its publication raises a false issue. Mr Rush did not rely on the republication by Nationwide News of the allegations in the amended defence as giving rise to a separate cause of action, but as conduct of Nationwide News which aggravated the harm caused to him by the publications the subject of his claims in the proceeding. It is not a necessary requirement that such conduct be tortious, or otherwise independently actionable, as Triggell v Pheeney demonstrates. The Judge was entitled to find that the harm which Mr Rush suffered as a result of the matters sued upon was increased by the appellants’ unjustified conduct in filing their defence and amended defence, and by the calculated amplification of the allegations in them by the extravagant and sensationalised repetition of them in the Daily Telegraph article of 20 February 2018. For the reasons we have given at [439] above, there was no error in the Judge’s finding that the publication of that article was improper and unjustifiable in all the circumstances.

Defamation Act, s 35 (Ground 16)

442    At trial, counsel for Mr Rush submitted to the Judge, in opening and closing, that where there is warrant for an award of aggravated damages, s 35(2) of the Defamation Act permits the statutory cap under s 35(1) to be exceeded in respect of both general compensatory damages and aggravated damages, which may be awarded in a global sum. In making this submission at trial, counsel for Mr Rush relied particularly on the decision of the Victorian Court of Appeal in Bauer Media, to which we referred at [42]. For their part, counsel for the appellants did not put this question in issue at trial, and made no submission to the Judge that Bauer Media should not be followed. Indeed, they relied on Bauer Media for other purposes, namely on the question of what conduct of a publisher may qualify as aggravation. This occurred in circumstances where the Victorian Court of Appeal’s reasons for judgment in Bauer Media Pty Ltd v Wilson [2018] VSCA 68 identified “News Corp Australia” as an applicant that was refused leave to intervene in that appeal.

443    Before this Court, the appellants submitted that the Judge erred in following the decision of the Victorian Court of Appeal in Bauer Media, and submitted that Bauer Media was plainly wrong and ought not be followed.

444    In Bauer Media, the Court considered the meaning of s 35 of the Defamation Act 2005 (Vic), which is in identical terms to s 35 of the Defamation Act 2005 (NSW). Section 35 states relevantly:

(1)    Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the “maximum damages amount”) that is applicable at the time damages are awarded.

(2)    A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court 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.

445    Relevantly, the Victorian Court of Appeal concluded that –

(1)    section 35(1) does not fix the upper limit of a range of damages that may be awarded for non-economic loss in defamation proceedings (at [182]-[216]);

(2)    section 35(2) does not require that aggravated damages be separately awarded (at [226] to [228]); and

(3)    section 35(2) empowers a court to lift both the pure compensatory damages and aggravated compensatory damages above the cap imposed by s 35(1) when the condition for the exercise of the discretionary power is enlivened (at [243]).

446    The objects of the New South Wales Act include the enactment of provisions to promote uniform laws of defamation in Australia: s 3(a). Uniform legislation should be interpreted consistently in the various jurisdictions in which it is enacted, and a court (whether a single judge or an intermediate appellate court) should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that the interpretation is plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 (Marlborough Gold) at [4].

Should the Court consider Ground 16?

447    As we have mentioned, the appellants did not submit to the Judge that his Honour should not follow Bauer Media, but to the contrary, referred to the judgment, without criticism, in closing submissions on the nature of aggravating conduct. The inference that the appellants made a forensic choice not to challenge the correctness of Bauer Media before the Judge is inescapable. Accordingly, an issue arises as to whether the appellants should be permitted to raise this ground of appeal.

448    When a question of law is sought to be raised for the first time on appeal, the question is whether it is expedient and in the interests of justice to entertain the point: Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at [13] (Mason CJ, Wilson, Brennan and Dawson JJ). The onus is on the party seeking to raise the new issue to demonstrate that it is expedient in the interests of justice to allow the new point to be raised: Bibby Financial Services Australia Pty Limited v Sharma [2014] NSWCA 37 at [10] (Beazley P); Canale v GW and R Mould Pty Ltd [2018] VSCA 346 (Canale) at [47] (Whelan and McLeish JJA, with Tate JA agreeing). In University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68 at 71, in a passage approved in Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 8, the High Court stated:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

449    The mere fact that the new point does not involve any factual issue does not result in a conclusion that it should be allowed to be raised for the first time on appeal: Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; 287 ALR 315 at [53] (Martin CJ). The merits of the new point are relevant to the interests of justice: Canale at [49].

450    The appellants submitted that it was expedient to consider this ground of appeal because the Judge awarded damages on a basis that did not correspond with the true meaning of the Act. Mr Rush submitted that the appellants appeared to have made a deliberate tactical choice not to argue the correctness of Bauer Media at first instance, noting that at trial the appellants had specifically addressed the decision in Wagner v Harbour Radio [2018] QSC 201, which applied Bauer Media in awarding damages for non-economic loss exceeding the maximum damages amount.

The merits of Ground 16

451    We accept that s 35(2) of the Act, if read literally, and as construed by the Victorian Court of Appeal in Bauer Media, may produce anomalous outcomes. In particular, as the appellants illustrated in their submissions, s 35(2) produces the result that the “maximum damages amount” in s 35(1) has no operation if a court is satisfied that the circumstances of publication of the defamatory material warrant a very small award of aggravated damages. In Bauer Media, the Court considered this problem at [236], but concluded at [238] that the anomalies that might hypothetically arise on a literal reading of s 35(2) could not displace the plain words of the section.

452    The appellants’ argument that Bauer Media was plainly wrong involved the following elements based on the text of the statute:

(1)    There is no language in s 35(1) or (2) to support the proposition that the cap (that is, the “maximum damages amount”) would become “inapplicable” when a court is satisfied that an award of aggravated damages is appropriate, contrary to Bauer Media at [249]. The Victorian Court of Appeal’s construction does not provide for a scenario in which damages for non-economic loss are well below the cap but the Court finds that an award of aggravated damages is warranted;

(2)    The focus of s 35(2) is “an award of aggravated damages”, and not the mere existence of circumstances of aggravation. The language of s 35(2) “limits the portion of the damages that may be ordered in excess of the maximum amount to aggravated damages” only. That is, the cap may be exceeded only insofar as the court is minded to award aggravated damages (which are a species of “damages for non-economic loss”). If the legislature had intended to effect the meaning attributed to s 35(2) by the Victorian Court of Appeal –

(a)    it would not have used the words “if and only if”;

(b)    it would have focused the language on the existence of circumstances of aggravation and not on the award of aggravated damages; and

(c)    it would have deployed language to broaden the discretion to order damages that exceed the cap where the “court is satisfied” that the circumstances warranted additional non-aggravated damages beyond the cap.

453    Next, the appellants contended that the decision in Bauer Media is “dissonant” with the purpose of an award of damages for defamation and the rules concerning the approach to damages, including common law rules which, by reason of s 6 of the Act, form the context within which s 35(2) is to be understood. In particular, the appellants noted:

(1)    The three purposes to be served by damages awarded for defamation, identified by Mason CJ, Deane, Dawson and Gaudron JJ in Carson at 60 in the following passage:

Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that “the amount of a verdict is the product of a mixture of inextricable considerations”. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. “The gravity of the libel, the social standing of the parties and the availability of alternative remedies” are all relevant to assessing the quantum of damages necessary to vindicate the appellant.

(Emphasis added)

(2)    Damages should be consistent between closely comparable cases. The appellants referred to the following passage in Cerutti v Crestside [2014] QCA 33 at [54] (Applegarth J, Margaret McMurdo P and Gotterson JA agreeing):

An appropriate award for general damages may fall within a fairly broad range, depending upon the circumstances. Those circumstances include the seriousness of the defamation, the extent of publication, the evidence about actual harm to reputation and injured feelings and the need for vindication. Even broadly comparable cases, such as imputations of dishonesty communicated to a very limited number of individuals, show a wide variation in awards. However, principles of compensation, the statutory command in s 34 of the Act to ensure “an appropriate and rational relationship” with the harm sustained and the need for some consistency between closely comparable cases constrain the proper exercise of discretion. Some level of consistency in awards is important to enable parties to predict with some confidence what an award is likely to be at trial, and to resolve their differences based on that prediction.

(3)    Damages for defamation are compensatory and punitive damages may not be awarded: s 37.

(4)    The task of assessing the quantum of damages is guided by the provisions of the Act including s 34, which provides:

In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

454    Insofar as necessary, the appellants also contended that the Victorian Court of Appeal’s rejection of a construction of s 35(1) that has the cap as the top end of a range (Bauer Media at [182] to [216]) was contrary to the language of the provision and the context within which it should be understood. This contention was not developed in argument.

455    Finally, the appellants contended that their approach is supported by extrinsic materials which include various explanatory memoranda and speeches to the various parliaments, which enacted s 35 and corresponding provisions in their jurisdictions.

Consideration of Ground 16

456    The appellants conducted their defence at the trial on the basis that Bauer Media applied to the proceeding, and took no step to argue against an award of damages by reference to the construction of s 35(2) in Bauer Media. In those circumstances, the asserted justification for allowing argument on the new point has little weight.

457    The appellants accepted the basic proposition that the task of statutory construction begins and ends with a consideration of the relevant text: Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; 250 CLR 503 at [39]. The statutory text must be considered in its context, including legislative history and extrinsic materials. However, legislative history and extrinsic materials “cannot displace the meaning of the statutory text”.

458    The appellants’ argument did not articulate precisely how s 35(2) could be construed to limit the award of damages over the maximum damages amount to aggravated damages. Nor did the appellants provide this Court with a detailed analysis of the Victorian Court of Appeal’s reasons in Bauer Media.

459    On the face of it, the textual matters identified by the appellants do not demonstrate that the Court in Bauer Media was plainly wrong in its interpretation of ss 35(1) and (2). To the contrary, on its face, s 35(2) provides for circumstances in which the “maximum damages amount” does not apply, in the sense that damages for non-economic loss that exceed the cap may be ordered. There is no apparent error in the Court’s description of the “maximum damages amount” as “inapplicable” in those circumstances.

460    Nor is it correct to claim that the Victorian Court of Appeal’s construction does not provide for a scenario in which damages for non-economic loss are well below the cap but the Court finds that the grant of aggravated damages is warranted. At [244], their Honours noted that s 34 operates as “an ever-present guide to ensure that remedies are fair and effective in the context of achieving the objects of the Act with the aim of ensuring consistency of awards in defamation proceedings across jurisdictions and to correct any imbalance with awards of damages for personal injuries”.

461    The Victorian Court of Appeal recognised that s 35(2) focuses on the existence of circumstances that warrant “an award of aggravated damages”, and not the mere existence of circumstances of aggravation. The appellants did not attempt to develop their argument that s 35(2) “limits the portion of the damages that may be ordered in excess of the maximum amount to aggravated damages only”, where the section permits “damages for non-economic loss that exceed the maximum damages amount”.

462    In particular, the appellants did not develop an argument to the effect that the Victorian Court of Appeal was “plainly wrong” in its view (at [224]) that the expression “an award of aggravated damages” does not assume that aggravated damages must be identified as a separate sum; or that the Court of Appeal was “plainly wrong” (at [226]) to have regard to the common law approach that damages for non-economic law are awarded as a single sum, by reference to s 6(2) of the Act. As noted by Windeyer J in Uren at 150 (cited by the plurality in Carson in the passage above and by Brennan J at 72, and referred to in Bauer Media at [225]), the award of damages, including aggravated damages, “is the product of a mixture of inextricable considerations”. The appellants did not address the difficulties that would be inherent in seeking to disentangle an award of “aggravated damages” from the “mixture of inextricable considerations”. For these reasons, it is not obvious that the Victorian Court of Appeal’s construction of s 35(2) would produce inconsistency between closely comparable cases.

463    Nor did the appellants explain why the words “if and only if” in s 35(2) required the construction for which they contend, such that the Court in Bauer Media was “plainly wrong”. At [231], the Victorian Court of Appeal noted that, on the plain words of s 35(2), where a court makes the appropriate finding, the statutory cap no longer applies. There is no obvious error in this interpretation of the effect of the words “if and only if”.

464    The appellants observed that the precondition to engage s 35(2) appears to be restricted to an aspect of aggravating circumstances, that is, the circumstances of the publication of the defamatory matter. The appellants contended that it is “impossible” to see how the relevant legislatures could have intended that what might be a small matter of aggravation could be a gateway to the abandonment of the statutory cap. There is authority on the question whether the circumstances of publication that engage s 35(2) might extend to other conduct of the defendant after publication: Forrest v Askew [2007] WASC 161. That issue does not arise directly on this appeal, because there is no challenge to the Judge’s findings concerning the actual circumstances of the publications as supporting an increased award of damages on account of aggravation. Any resolution of that issue should await an appeal where the issue squarely arises, and is the subject of full argument.

465    On the assumption that the appellants are correct in their submission that the precondition to engage s 35(2) appears to be restricted to the actual circumstances of the publication of the defamatory matter, then while this may provide room for an alternative construction of s 35(2), that would not be not sufficient to meet the Marlborough Gold test for departing from the interpretation of uniform legislation by another Australian intermediate appellate court only if convinced that interpretation is plainly wrong. Contrary to what was submitted, the notion that a publisher will not be protected by a statutory cap if the circumstances of the defamatory publication are such as to warrant an award of aggravated damages is not illogical: that is a matter within the publisher’s control, as the Victorian Court of Appeal observed at [231]. The appellants did not suggest that the Court had made any error in this observation.

466    As to the relevant extrinsic materials, at [232], the Court of Appeal in Bauer Media concluded that they expressed different and variable understandings of how the different Acts would operate and were inconclusive. The appellants did not identify any error in that regard.

Conclusion in relation to Ground 16

467    For these reasons, we are not satisfied that it is expedient in the interests of justice for this Court to consider appeal ground 16.

468    After the appeal was heard, the parties referred the Court to the obiter observations in Murray v Raynor [2019] NSWCA 274 at [90]-[97] (but see also KSMC Holdings Pty Ltd v Bowden [2020] NSWCA 28 at [143], and Wagner v Nine Network Australia Pty Ltd [2019] QSC 284 at [245]), and to the obiter observations in Poniatowska v Channel Seven Sydney Pty Ltd (No. 2) [2020] SASCFC 5 at [90]-[91]. It is sufficient to say that these decisions do not affect our conclusion.

The award of damages for non-economic loss was manifestly excessive (Ground 13)

469    The Judge awarded Mr Rush the sum of $850,000 for non-economic loss. The appellants claim that an award of damages in this sum was manifestly excessive. For the following reasons, we reject that claim.

470    The Judge enjoyed the benefit of seeing Mr Rush and the witnesses who observed his reaction to the publications give their evidence. In evaluating whether there was any error by the Judge in assessing damages for non-economic loss, due allowance should be made for the fact that this Court proceeds only upon the written record of the proceedings below.

471    The principles that guide the assessment of damages for non-economic loss are well established, and no party put them in issue. We have referred at [453] above to the three purposes of an award of damages identified in the joint judgment in Carson at 60 to which the appellants referred in their submissions, namely: (1) consolation for the personal distress and hurt caused by the publication; (2) reparation for the harm done to the person’s personal and (if relevant) business reputation; and (3) vindication of reputation: see also, Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 (Rogers) at [60] (Hayne J, with whom in relation to the matter of damages, Gleeson CJ and Gummow J at [35] agreed). It is unnecessary that we explore or rehearse those principles in full.

472    The assessment by a judge of damages for non-economic loss in a defamation proceeding is an intuitive process where, subject to the statutory constraints in s 34 to s 36 of the Act, damages are at large. Because the assessment of damages is the subject of what Windeyer J referred to in Uren at 150 as “the product of a mixture of inextricable considerations”, the question of their assessment does not admit of one correct answer. The correctness standard of appellate review described by Gageler J in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [41]-[49] applies to any findings of fact and to the application of legal principles in arriving at the assessment, but not to the assessment itself. In the absence of specific error, a claim on appeal that an award of damages for non-economic loss was manifestly excessive invokes the last of the bases for appellate review in House v The King at 504-505 (Dixon, Evatt and McTiernan JJ). It is not enough, therefore, “that the judges composing the appellate court consider that, if they had been in the position of the Judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion”: House v The King at 504-505. The “contention that damages are manifestly excessive alleges that the result at which the Judge arrived is evidently wrong and that, although the nature of the error made may not be discoverable, there must have been a failure to properly exercise the discretion in fixing the amount to be awarded”: Rogers at [62] (Hayne J). For that reason, what must be shown is manifest excess, and not just excess: Rogers at [64] (Hayne J).

473    In Rogers at [63], Hayne J stated in relation to the method of reasoning under which an award of damages for non-economic loss may be adjudged as manifestly excessive that:

This method of reasoning necessarily assumes that there is a standard against which excess can be judged. Identification of that standard does not require precise specification of the range of results within which a proper exercise of discretion might be bounded. It will usually be impossible to set such bounds precisely. Nonetheless, the standard must be capable of identification with sufficient precision to say whether a particular result clearly departs from it.

474    In relation to the identification of a standard, Hayne J at [66] referred to three basic propositions of which account should be taken:

In searching for the standard against which manifest excess of an award of damages for defamation can be judged, account must be taken of three basic propositions. First, damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation, and every award of damages for defamation, is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury. …

475    Hayne J then considered these three propositions in turn. In relation to a comparison between awards, his Honour stated at [69]:

… It follows that the drawing of direct comparisons between particular cases is apt to mislead, just as the drawing of direct comparisons in personal injury cases can also mislead. Comparison assumes that there is sufficient identity between the effect which each defamation had on the particular plaintiff, whereas in fact circumstances alter cases [Australian Iron and Steel Ltd v Greenwood (1962) 107 CLR 308 at 325]. The amount allowed in each case should reflect the subjective effect of the defamation on the plaintiff. Unless that is recognised, the courts fall into “that form of the judicial process that Cardozo J deprecated, the mere matching of the colours of the case in hand against the colours of samples spread out upon a desk” [Australian Iron and Steel at 325]. The consideration of other cases can yield no norm or standard derived from the amounts awarded in those other specific cases [Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 124-125, per Barwick CJ, Kitto and Menzies JJ]. …

476    Hayne J then extracted with evident approval the following passage from the dissenting reasons of Windeyer J in Chulcough v Holley (1968) 41 ALJR 336 at 338, which was a case concerning the assessment of damages for personal injuries:

Of course no two cases are exactly alike. … One award is never really a precedent for another case. But we would I think be ignoring facts if we were to say that judges when asked to consider whether a particular verdict is beyond the bounds of reason—either excessive or inadequate—are unmindful of what was done in other cases, similar or dissimilar. If we were to say that, we would I consider deceive ourselves, as well as belie statements in judgments of high authority.

477    Windeyer J’s reference to one award never really being a precedent for another case brings to mind what his Honour had earlier stated in Teubner v Humble [1963] HCA 11; 108 CLR 491 at 503, in the context of findings of negligence:

… decisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application that a pedestrian is always entitled, or that a motorist is always obliged, to act in some particular way. …

478    In Rogers, Hayne J at [69] cited Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118 (Planet Fisheries) at 124-125 in support of the proposition that the consideration of other cases can yield no norm or standard derived from the amounts awarded in those other specific cases. In Planet Fisheries, Barwick CJ, Kitto and Menzies JJ stated at 125:

The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. What was sought to be done in this case by the appellant’s counsel, namely, to derive a norm or standard from a group of judgments of this Court reviewing awards of damages on appeal is erroneous. The same would be true if the same course were sought to be pursued in relation to awards of a Supreme Court or of a County or District Court. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet’s counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand.

479    Returning to Rogers, Hayne J concluded at [82] by referring to the limitations that are inherent in comparing one case to another:

It is inevitable and right that appellate courts seek to guide and direct the work that is done at trial level. Consistency in and predictability of the outcome of litigation is fundamental to the proper administration of justice. But consistency and predictability are to be achieved within the confines of applicable legal principle. They are not to be achieved by treating different cases alike any more than they are to be achieved by treating like cases differently. It is of the first importance, then, to identify what are the features or characteristics of a case which it is relevant to compare. Where, as is the case with both defamation and personal injury, so much turns on the effect of the wrong on the particular plaintiff, the drawing of such comparisons has obvious difficulty. But more than that, it reveals that any comparison which is drawn must look to the particular plaintiff, not what others may have thought of the defamatory words that were published or what kind of physical injury was sustained.

The appellants’ submissions in relation to Ground 13

480    On this appeal, the appellants claimed that the award of damages for non-economic loss was “so inconsistent with comparable awards that it may be inferred that there is no appropriate and rational relationship between the harm sustained by [Mr Rush] and the award of damages, and that the award is manifestly excessive”. In making this submission, the appellants invoked the language of s 34 of the Act, to which we referred at [453(4)] above. The appellants advanced their submissions by reference to three other cases, which we shall now identify.

Gayle v Fairfax Media Publications Pty Ltd (No 2)

481    The appellants submitted that the most comparable case to the present case was Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838 (Gayle), which was upheld on appeal in Fairfax Media Publications Pty Ltd v Gayle [2019] NSWCA 172; 372 ALR 287. Mr Gayle was a famous cricketer who played internationally for the West Indies. He brought proceedings in relation to the publication of 28 articles which conveyed imputations to the effect that he had indecently exposed himself to a woman in the changing rooms during the 2015 Cricket World Cup. The trial judge, McCallum J, described Mr Gayle’s evidence on hurt feelings at [29] as “surprisingly compelling” and considered the imputations serious, although not at the most serious end of the spectrum, before stating at [30]:

As submitted on behalf of Mr Gayle, it is significant that the imputations relate to his behaviour in the workplace with a work colleague. The articles attributed him with intentionally acting indecently towards her. I accept that the imputations had particular resonance in cricketing circles, among fans, coaches, officials and players. The defamation went to the heart of Mr Gayle’s professional life as a respected batsman.

482    The appellants submitted that there were several significant similarities between Gayle and this case: both claimants are well known internationally in their respective fields, the evidence in both cases was of a good reputation and extensive hurt to feelings and, critically, the imputations all related to the same kind of imputations, namely sexual impropriety towards a woman in the workplace. The appellants submitted that the key differences were that in the Gayle case, there were more publications (28 versus three) and there was no award for aggravated damages. Mr Gayle was awarded $300,000 in damages for non-economic loss. The appellants acknowledged that there had been no finding of aggravating conduct in Gayle, and submitted that aggravation in the present case could not account for the difference between the awards of $550,000.

Wagner v Harbour Radio Pty Ltd

483    In Wagner v Harbour Radio Pty Ltd [2018] QSC 201, in which there was a finding against the publishers of aggravation, each of the three plaintiffs was awarded damages for non-economic loss in the sum of $850,000. The appellants submitted that the plaintiffs had been accused of heinous criminal conduct in 29 separate high-rating and extensively published radio broadcasts. The appellants submitted that the imputations were of the most serious kind, including that the plaintiffs were responsible for the deaths of 12 people, including two children, and knowing of their culpability, covered it up, and conspired to do so with police and politicians, including the Deputy Prime Minister. The appellants submitted that there were numerous other serious allegations, including intimidation of powerless witnesses and extensive corruption.

Rayney v Western Australia (No 9)

484    In Rayney v Western Australia (No 9) [2017] WASC 367, Chaney J held that the defamatory imputation that Mr Rayney was guilty of murdering his wife was “at the high end of the range of seriousness of defamatory imputations”. Chaney J described the effect of the publication on Mr Rayney’s life as devastating and found that an award of aggravated damages was warranted. The appellants relied on the fact that Mr Rayney was awarded $600,000 for non-economic loss, being $250,000 less than Mr Rush was awarded in the present case.

Consideration of Ground 13

485    We have referred at [389] above to the evidence and the Judge’s findings in relation to Mr Rush’s good reputation prior to the publications; we have referred at [393] to the extent of publication; we have referred at [394]-[404] to the evidence and the Judge’s findings in relation to the hurt and distress caused to Mr Rush by the publications; and we have referred at [405]-[411] to the Judge’s findings in relation to the additional injury caused to Mr Rush as a result of the appellants’ aggravation of harm. The Judge held that the defamatory imputations conveyed by the publications were unquestionably extremely serious, and that the story in the publications spread like wildfire throughout the world.

486    In our view, the Judge was correct to characterise the imputations that were conveyed by the publications as extremely serious. There was no challenge to the Judge’s findings as to the extent of publication, or to the finding that the defamatory imputations spread like wildfire throughout the world. Nor was there any challenge to the findings in relation to the hurt and distress caused to Mr Rush by the publications. Most of the Judge’s findings in relation to the appellants’ aggravating conduct were unchallenged, and to the extent to which they were challenged, that challenge has failed.

487    The harm caused to Mr Rush’s reputation was the result of a sensationalised tabloid crusade by the appellants with aggravating features of a most serious kind. In our view, based upon the Judge’s findings, the harm caused to Mr Rush as a result of the publications warranted a very high award of damages for non-economic loss. The fact that the award of damages is high is therefore unremarkable. We did not understand the appellants’ submissions to suggest that a high award of damages was not warranted, but only that by comparison with other cases, it should be concluded that the award was manifestly excessive.

488    To embark on a detailed comparison with other cases would have the result that this Court would not be limited to an examination of the three cases relied on by the appellants. Counsel for Mr Rush cited an additional 18 cases. And no party cited the decision in Bauer Media as a point of comparison. In Bauer Media, the plaintiff, who was a well-known actor, was awarded $650,000 for non-economic loss by the trial judge in respect of a number of magazine and internet publications involving aggravating conduct by the publisher. On appeal, the award was not set aside as being manifestly excessive, but on the ground that the trial judge had made errors of fact supporting the findings of aggravating conduct. As a result of those errors, the Court of Appeal set aside the award, and re-assessed damages for non-economic loss at $600,000. One could draw many points of comparison and distinction between the present case and Bauer Media. But we are not persuaded that there is much utility in comparing the award in the present case with the awards in the other cases that were cited. To do so would require a detailed comparison between the features of the various cases in circumstances where in respect of awards made at trial, the trial judge in each case enjoyed benefits that are immeasurable. As Hayne J observed in Rogers, damage to reputation is not a commodity having a marketable value. What is awarded “cannot be arrived at by any purely objective computation”: Cassell & Co Ltd v Broome [1972] AC 1027 at 1071 (Lord Hailsham LC). Further, judgments about damages “are not to be overborne by what other minds have judged right and proper for other situations”: Planet Fisheries at 125. And moreover, especially in defamation cases, no two cases are truly comparable. As Windeyer J observed in Chulcough v Holley, in terms approved by Hayne J in Rogers, no two cases are exactly alike, and one award is never really a precedent for another case.

489    The award of damages in the present case had to take account of the subjective response of Mr Rush to the publications, which left him devastated and distressed and consumed by grief. The award had to take account of the appellants’ aggravation of the harm that they had caused to Mr Rush. The potency of the imputations was a matter to be taken into account in giving effect to the object of vindication having regard to the worldwide damage that the appellants had caused to Mr Rush’s reputation. In these circumstances, the Judge’s assessment of damages for non-economic loss was appropriately high. Having considered carefully the Judge’s findings in relation to the harm caused to Mr Rush by the publications, coupled with the appellants’ aggravating conduct, and having regard to the benefit that the Judge enjoyed in seeing and considering the evidence, we are not persuaded that the award of damages was beyond what was appropriate, and it follows that the award was not manifestly excessive.

Damages for economic loss

490    The Judge awarded damages for economic loss which, upon the parties considering his Honour’s reasons, were quantified at:

(1)    $1,060,773 for past economic loss, including pre-judgment interest; and

(2)    $919,678 for future economic loss.

491    Mr Rush’s claim for economic loss was characterised by the Judge at [796] as a claim for financial loss arising from a loss of earning capacity caused by the defamatory publications. In relation to past economic loss, his Honour accepted that Mr Rush had not worked at all since the defamatory publications. However, the appellants had put causation in issue. In addressing causation, his Honour framed his consideration in the context of the unchallenged evidence that Mr Rush had not worked since the publications together with the following three matters. First, the Judge stated that it was effectively undisputed that Mr Rush was an actor in demand who had worked constantly and consistently over the years. His Honour referred to the evidence of Ms Menelaus that “you cannot extract Geoffrey’s work from Geoffrey” and equally “you cannot divorce Geoffrey from his work”. His Honour held that Mr Rush wanted to work for many years to come. Second, the Judge stated that it was effectively undisputed that the effect that the publications had on Mr Rush personally was devastating. We have referred to the Judge’s findings and to some of the evidence on that topic at [394] to [404] above. Third, the Judge held that there could be little doubt that the publications had a devastating effect on Mr Rush’s reputation as an actor, particularly in the context of the Harvey Weinstein scandal and the #MeToo movement. His Honour referred to the evidence of the eminent actor, Ms Judy Davis, who said that she had heard people say that Mr Rush’s “career is finished”.

492    The Judge heard evidence from four witnesses whose opinions concerning Mr Rush’s prospects were admitted. Each of the witnesses was cross-examined. The appellants procured an opinion from an attorney, Mr Richard Marks, whose experience included the negotiation of contractual arrangements in the entertainment industry in the United States over the course of many years. In evidence, he stated that he had been “deeply involved in casting and deal-making”. Mr Marks’s report was tendered as an exhibit. He gave evidence that included his opinion that, while there were exceptions to the rule, there were fewer roles for older actors in Hollywood, and that the roles for older actors were less remunerative.

493    Mr Rush procured reports from three persons who gave opinion evidence: his American agent, Mr Specktor; the film director, producer and screenwriter, Mr Schepisi; and an attorney with extensive experience in the motion picture and television industry including as a senior studio executive, Ms Robin Russell. Both Mr Specktor and Mr Schepisi had known Mr Rush for many years. Ms Russell had no previous relationship with Mr Rush, and was engaged for a fee to provide an expert opinion. All three witnesses called by Mr Rush gave opinions that disputed several of the opinions given by Mr Marks, and in particular on the question of the relevance of Mr Rush’s age to his future work prospects.

494    The Judge held that the defamatory publications were a cause of Mr Rush’s loss of earning capacity and financial loss in the period between publication and the trial. His Honour held that a material reason, if not the main reason, why Mr Rush stopped working was the impact that the publications had had on him and his state of mind. His Honour stated that he accepted that Mr Rush did not himself directly address that issue, but that the evidence of the observations of others who were close to Mr Rush was compelling. The Judge also held that, even putting Mr Rush’s inability to work to one side, the defamatory articles were a cause of Mr Rush’s lost earning capacity because the almost inevitable result of the publications was that Mr Rush would have received fewer offers of work because of the damage to his reputation. His Honour held that the damage to Mr Rush’s reputation in that respect was likely to continue for some time.

495    In relation to the quantification of past economic loss, the Judge stated that the parties’ experts who had been retained had conferred, and had essentially agreed on most of the relevant financial calculations, including the calculation of Mr Rush’s past income. His Honour held that Mr Rush’s past financial loss should be calculated without any reduction for risks, or vicissitudes, in the way proposed by Mr Rush’s expert accounting witness, Mr Potter, for the period from 30 November 2017 to the date of judgment, and should incorporate pre-judgment interest. There is no challenge on appeal to this choice of methodology for past economic loss.

496    In relation to future economic loss, the Judge held that as a result of the publications, Mr Rush would receive fewer offers of work because of the damage to his reputation, and that this state of affairs was likely to continue for some time into the future. His Honour identified the main issues between the parties as being, in general terms: (1) how long it would be before Mr Rush was able to work again; (2) when offers of work would start flowing again; and (3) whether, putting aside the impact of the defamatory publications and the damage to Mr Rush’s reputation arising from them, Mr Rush’s earning capacity was likely to have declined over the next ten years in any event by reason of his age and other circumstances.

497    The Judge held that once Mr Rush’s reputation had been vindicated, he would eventually be able to engage in acting work again. His Honour held that Mr Rush’s recovery from his inability to work was likely to occur within 12 months of judgment. In relation to offers of work, the Judge accepted the evidence of Mr Rush’s agent, Mr Specktor, that there would be a lag of at least 12 months before he received offers of movies at the same rate as he did before the publications, after which the offers would gradually increase. His Honour held that the most likely scenario was that in the period between 12 to 18 months after judgment, Mr Rush would receive offers for movies, theatre, television and independent movies at about 50% of the rate before publication, and that in the period of 18 to 24 months after judgment Mr Rush would receive offers at about 75% of the rate he did before publication. His Honour held that two years after judgment Mr Rush’s earning capacity would likely return to the level at which it was before the publications. His Honour also concluded that there was a chance that Mr Rush might receive some offers of work within 12 months of judgment, but doubted that they would be for particularly large or significant jobs. His Honour also held that there was a possibility that Mr Rush would not receive any particularly large or significant jobs in the period of 12 to 24 months after judgment. Having regard to these conclusions, the Judge seriously doubted that age would have been a factor that would have affected Mr Rush’s prospects during that period, and in any event, preferred the evidence of Mr Schepisi, Mr Specktor and Ms Russell over the generalised evidence of Mr Marks, who was called by the appellants. His Honour held that Mr Rush’s income was not likely to have declined over the next few years, and but for the publications, was likely to have remained more or less the same as it had been for the fifteen years prior to the publications. His Honour declined to make any allowance for vicissitudes in respect of the loss period on account of Mr Rush’s age as an actor because he did not consider that there was any basis for concluding that Mr Rush’s earning capacity would have declined in the near future because of his age or any circumstances associated with it. On the other hand, his Honour applied a reduction of 10% on account of other more general vicissitudes relating to Mr Rush’s general health and well-being, and the fickle nature of the acting business. Rather than undertaking his own discounted cash flow analysis, the Judge determined to allow the parties to retain their experts to calculate Mr Rush’s future economic loss based upon his Honour’s factual findings, which the parties subsequently undertook, and which led to the quantification of $919,678 for future economic loss.

498    The appellants challenge the Judge’s decision to award damages for economic loss on three grounds. First, the appellants claim that the Judge was in error in admitting the evidence of Mr Specktor and Mr Schepisi to the extent that they gave opinion evidence. Second, the appellants claim that the Judge was in error in finding that Mr Rush was unable to work due to the emotional effect that the publications had on him. Third, the appellants claim that the Judge had erred in assessing damages for economic loss by reference to a period of two years after judgment, on a sliding scale, when Mr Specktor gave evidence that he expected that Mr Rush would receive offers at the same rate in about 12 months. We shall now turn to consider these grounds of appeal.

The admission of the opinion evidence of Mr Specktor and Mr Schepisi (Ground 15)

499    Each of Mr Specktor and Mr Schepisi gave evidence about Mr Rush that included evidence about their knowledge of and relationship with him. Both gave evidence about their observations of the effect that the publications had on Mr Rush. In addition, each prepared a written report containing opinions that were tendered in addition to the oral evidence that they gave.

500    At trial, the appellants objected to the admission of the opinion evidence of Mr Specktor and Mr Schepisi on three grounds. First, the appellants submitted that neither was independent, and that they were necessarily incapable of being impartial. Second, the appellants claimed that the evidence was inadmissible on the ground that each of Mr Schepisi and Mr Specktor had obtained information relevant to the formation of their respective opinions in the course of their relationship with Mr Rush which was “not part of the identified body of information to which the expert is authorised to have regard in preparing the report”. Third, the appellants submitted that the evidence was unfairly prejudicial and ought to be excluded pursuant to s 135 of the Evidence Act 1995 (Cth). The Judge overruled the objections, and declined to exercise the power under s 135 of the Evidence Act, holding that the evidence was not unfairly prejudicial, and published reasons for the ruling: Rush v Nationwide News Pty Limited (No 5) [2018] FCA 1622.

501    On appeal, the appellants confined their argument to the question whether the evidence was inadmissible on the ground that Mr Specktor and Mr Schepisi had had regard to information obtained from their prior dealings with Mr Rush that was not disclosed in their reports. In relation to Mr Specktor, the appellants relied on [3] of his report, in which he stated:

3.    Given I have been Mr Rush’s agent since February 1996, I think I am uniquely well-positioned to give that evidence based on my personal knowledge of Mr Rush, and my specialised knowledge of the entertainment industry in Hollywood over the course of over 60 years.

502    In addition, at [10] of his report, Mr Specktor stated:

10.    For the purposes of giving evidence in these proceedings, I have assumed the facts set out at “Schedule 1” to the letter of instruction. Most of those facts were already within my knowledge since I have represented Mr Rush for over 20 years.

503    In relation to Mr Schepisi, the appellants relied on [3] and [10] of his report, in which he stated:

3.    I have also read Mr. Rush’s Statement of Claim. I understand that my expert evidence is relevant to the question whether the articles which were published by the Respondents in November and December 2017 are likely to cause Mr. Rush financial loss in the future. I believe I am qualified to give that evidence based on my own personal knowledge of Mr. Rush and my specialised knowledge of the acting and entertainment industry of which I have been a part for over 40 years.

…

10.    I have read the assumptions at Schedule 1 of [Mr Rush’s solicitors’] letter of instruction, and have assumed those facts in preparing this report. In addition, I rely upon my own personal knowledge of Mr Rush.

504    At trial, the appellants objected to the reports of Mr Specktor and Mr Schepisi in their entirety, relying upon the decision of Austin J in Australian Securities and Investments Commission v Rich [2005] NSWSC 149; 190 FLR 242 (ASIC v Rich) at [348]-[349]. In those passages, Austin J stated:

348.    One additional factor especially pertinent in the present case is that expert opinion evidence might be excluded if the expert, in the course of his or her prior relationship with the party who has retained him or her, has obtained information relevant to the formation of his or her expert opinion, which is not part of the identified body of information to which the expert is authorised to have regard in preparing the report. Here the problem is not lack of independence per se, but the fact that, in the course of acting in relationship with a party to the litigation in a non-independent way, the expert may have obtained information which is not appropriate or permissible to be used as a factual basis for expert opinions.

349.    ASIC submitted that it is common, as well as being proper and understandable, that an expert will obtain additional information in dealing with his or her client, which is not included in the factual basis for the expert opinions. For example, it is proper and common for an expert to express views to his or her client about documents within the expert’s field of specialised knowledge produced by another party on discovery, or about expert reports from another party, and the expert may sit in court and listen to evidence and provide explanations to the client of the evidence that is given, and even suggestions to counsel as to relevant questions that may be asked. I accept that there is a range of such things that the expert may do without providing ground for excluding his or her opinion evidence. This [is] because, in engaging in such conduct, the expert does not raise any question as to whether his or her opinions are based wholly or substantially on his or her specialised knowledge. Where, however, the expert has obtained extraneous information in the course of another relationship with the client prior to reaching his or her opinions, and the information is relevant to the opinions, a question would seem to arise as to whether the expert has failed to set out the factual basis that the opinions and has therefore made it impossible for the Court to be sure whether the opinions are based wholly or substantially on the expert knowledge.

(Emphasis added)

505    At trial, the appellants relied in particular on that part of [348] that we have emphasised above, and submitted that it was not known what information Mr Specktor and Mr Schepisi had obtained.

506    ASIC v Rich concerned the admissibility of an expert report of a financial nature into the affairs of a company prepared by and under the supervision of an accountant at the request of ASIC. The ruling in ASIC v Rich occurred after evidence was given by the expert accountant on a voir dire, which involved prolonged cross-examination. In rejecting the expert report in its entirety, Austin J held at [365], [378] and [412]-[414] that the expert had taken into account information not identified in the report that had been obtained by him, or his assistants, in the course of other work for ASIC, and which he had specifically been asked to exclude from his consideration. This feature of ASIC v Rich explains the passage in [348] of Austin J’s reasons that we have emphasised above and on which the appellants relied at trial, namely that expert opinion evidence might be excluded if the expert has obtained “information relevant to the formation of his or her expert opinion, which is not part of the identified body of information to which the expert is authorised to have regard in preparing the report”.

507    On this appeal, the appellants acknowledged the Judge’s observation that caution should be exercised in relying on statements of principle in ASIC v Rich, but maintained their reliance on it. The appellants’ acknowledgement that caution should be exercised was appropriate, because ASIC v Rich was reversed on appeal in Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 (ASIC v Rich (NSWCA)). Because ASIC v Rich was reversed on appeal, the reasons of Austin J were not dispositive of any controversy before him, even if the Court of Appeal had not specifically rejected what Austin J had said at [348]-[349]: see, Sparks v Hobson [2018] NSWCA 29; 361 ALR 115 at [35]-[38] (Basten JA); Garcia v National Australia Bank Ltd [1998] HCA 48; 194 CLR 395 at [56] (Kirby J). However, what Austin J stated at [348]-[349] cannot stand in the face of the Court of Appeal’s reasons for reversing the decision. Austin J had proceeded on the basis that unless opinions, as a matter of historical fact, were based upon the matters identified in the report, the court could not be “sure” that the evidence was based wholly or substantially on the expert knowledge: see ASIC v Rich at [349]. The Court of Appeal rejected this premise. At [136], Spigelman CJ, with whom Giles JA and Ipp JA agreed, stated:

… The fact that the opinion was initially formed or later reinforced by reference to other facts, not said by the expert in his evidence to be proved or assumed, is irrelevant to the question of admissibility. Once the opinion is capable of being based on the proved facts, it is admissible. The fact that the expert’s opinion was at one time — or even still is — reinforced by undisclosed facts and reasoning processes is irrelevant to the admissibility of the opinion (although these matters may go to weight).

508    Nonetheless, the appellants submitted that despite the caution that is to be exercised in relying on statements of principle in ASIC v Rich, there could be no serious dispute that an expert report is required to explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded, citing Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85] and Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [37]. The appellants submitted that in relying upon unstated matters of personal knowledge it was not clear that Mr Specktor and Mr Schepisi’s opinions were wholly or substantially based on their specialised knowledge, and that their evidence ought to have been excluded.

509    The Judge held that the appellants’ arguments based upon their reliance on ASIC v Rich had no merit, and we agree. His Honour stated that the facts, circumstances, and nature of the expert opinion evidence considered in ASIC v Rich were fundamentally different to the facts, circumstances, and nature of the expert opinions of Mr Specktor and Mr Schepisi. His Honour stated that the observations in ASIC v Rich at [348] could not simply be transposed and applied, without analysis or close consideration of the facts, circumstances, and opinion evidence under consideration in this case. In our view, this was especially so given that it was a feature of ASIC v Rich that the expert was specifically asked to exclude particular information from his consideration, which was the context in which Austin J stated that the expert had in the course of a previous relationship with ASIC obtained information that was “not part of the identified body of information to which the expert is authorised to have regard in preparing the report”. In this case, the Judge held that there was simply no basis for the assertion that the personal knowledge that both Mr Schepisi and Mr Specktor had of Mr Rush was “not part of the identified body of information” to which they were authorised to have regard in preparing their reports.

510    There was no error by the Judge in overruling the appellants’ objections to the opinion evidence of Mr Specktor and Mr Schepisi. As to Mr Specktor’s evidence, the statement in [3] of his report, which we have set out at [501] above and on which the appellants relied, was a self-serving statement to give weight to the opinions that Mr Specktor expressed. We do not accept the appellants’ submission that [3] of Mr Specktor’s report referred to particular facts that he had taken into account that were otherwise concealed from scrutiny. Mr Specktor attached to his report a schedule containing the assumptions that he was asked to make in preparing his report. Those assumptions comprised an account of Mr Rush’s career, and included such matters as the considerable number of film, television, and theatrical productions in which Mr Rush had appeared, and the awards that he had received for his work. The assumptions also included the publication of the matters by the appellants that were the subject of Mr Rush’s claim, together with some assumptions as to the effect of the publications on Mr Rush’s work. It should have been entirely unsurprising that Mr Specktor, as Mr Rush’s agent, would state at [10] of his report, which we have set out at [502] above, that he had assumed the facts set out in the schedule, and that most of those facts were already within his knowledge.

511    Mr Schepisi’s evidence had similar features. His report at [3], which we have set out at [503] above, also contained a self-serving statement referring to his personal knowledge of Mr Rush as a reason to give weight to his opinions. Mr Schepisi stated at [10] of his report that he had assumed the facts set out in the schedule to his report, which were the same facts that Mr Specktor was asked to assume. Mr Schepisi added that, “In addition, I rely upon my own personal knowledge of Mr Rush”. There were a number of passages in Mr Schepisi’s report that contained factual statements about Mr Rush. One example that was referred to by senior counsel for the appellants in submissions before the Judge was the following, taken from [16] of Mr Schepisi’s report:

His fame and reputation has spread worldwide. He is widely recognised and loved by the international public because of movies as diverse as Elizabeth, Shakespeare in Love, The King’s Speech and the Pirates of the Caribbean franchise.

512    At trial, senior counsel for the appellants submitted that a statement such as the above “had no place whatever in expert evidence”, because “the expert should be at arm’s length” and the statement was “completely inappropriate”. At that point, the Judge asked whether the appellants proposed to go through the report and ask that his Honour rule on such matters on a line-by-line or sentence-by-sentence basis, in which case his Honour proposed that Mr Schepisi should give his evidence orally. In response, senior counsel for the appellants elected not to take that course, and stated that the objection was to the entire report, although at the same time he maintained the appellants’ objection to the sentences in [16] of Mr Scepisi’s report referred to above.

513    Whether the factual statements in the body of Mr Schepisi’s report reflected the assumptions that he was asked to make, or were inferences drawn from the assumptions, or were based upon Mr Schepisi’s knowledge of Mr Rush, was not something that the appellants pursued at trial. The appellants did not seek a voir dire, and as we have said, the appellants elected not to object to Mr Schepisi’s or Mr Specktor’s evidence on a line by line basis when the Judge gave them the opportunity to do so, but instead pursued their objections to the entire reports on a global basis by reference to arguments including the claimed lack of independence, and their reliance on ASIC v Rich.

514    We do not accept that there was any failure by Mr Specktor or Mr Schepisi to identify the facts on which they relied, and to the extent that the appellants submitted that the opinions of Mr Specktor and Mr Schepisi were informed by undisclosed facts and reasoning processes, that was irrelevant to the admissibility of the opinions: ASIC v Rich (NSWCA) at [136] (Spigelman CJ). As for the sole passage in [16] of Mr Schepisi’s report to which the appellants took specific objection at trial, the appellants did not pursue their arguments in relation to that passage on appeal, and in any event, there was no error in admitting that evidence. Like all of the reputation witnesses, Mr Schepisi knew Mr Rush, which is unremarkable. Contrary to the appellants’ submissions to the Judge, the fact that Mr Schepisi proposed to give opinion evidence did not render his evidence about Mr Rush’s reputation inadmissible, whether standing alone, or in support of his opinions.

Loss of earning capacity (Ground 17)

515    By Ground 17, the appellants claim that:

The primary judge erred in awarding special damages on the basis that the Respondent was unable to work due to the emotional effect the articles had on him, in circumstances where:

(a)    the case was not pleaded this way and the Respondent himself gave no evidence to this effect; and

(b)    there was no evidence in support of the case as pleaded and advanced through the Respondent’s expert evidence, namely that the Respondent had received no offers of work, such that the Respondent would have failed in his claim for special damages.

516    There are three issues raised by Ground 17, which we shall consider in turn:

(1)    did Mr Rush plead that he was unable to work due to the emotional effect that the articles had on him;

(2)    did Mr Rush give evidence of the emotional effect that the articles had on him; and

(3)    was there evidence to support the pleaded case that Mr Rush had received no offers of work?

Mr Rush’s pleaded case

517    As we stated at [494] above, the Judge held that a material reason, if not the main reason, why Mr Rush stopped working was the impact of the publications upon him and his state of mind. The appellants submitted that before trial it was never specifically stated that, in support of the claim for economic loss, it would be asserted that a reason for Mr Rush not working was due to the debilitating effect of the publications on his ability to act. The appellants submitted that one of the reasons for which the claim for economic loss should have failed was that the claim that Mr Rush was so debilitated by the effect of the publications that he could not act was not part of the pleaded case. In response, counsel for Mr Rush submitted in writing that “[t]hough it was not specifically pleaded, the appellants were put on notice that Mr Rush’s claim for economic loss included a claim of lack of earning capacity”. These submissions invite attention to the pleadings.

518    By his statement of claim filed on 8 December 2017, which was a week after the publications, Mr Rush alleged that as a result of the publications, he would suffer economic loss. At that time, Mr Rush alleged that his reputation as an actor had been irreparably harmed such that he was likely to be shunned by employers in the future. Further particulars were foreshadowed.

519    By a letter dated 22 May 2018, Mr Rush’s solicitors provided particulars of “special damages”. Relevantly, those particulars alleged:

…

4.    The Applicant has over the last several decades, as one of Australia’s most prominent and well-respected actors, received a substantial income from his appearances in films, television shows, and theatre. That income has been significantly reduced – and, the Applicant fears, will continue indefinitely to be reduced – as a result of the publication of the matters complained of.

5.    As a result of the publication of the matters complained of, the Applicant has suffered:

(a)    anxiety, embarrassment, hurt, and other ‘tremendous emotional and social hardship” set out in the affidavit of Nicholas Pullen sworn on 9 April 2018;

(b)    ongoing injury to his reputation, including his reputation as an actor in Australia and worldwide;

(c)    a loss in his earning capacity;

(d)    a general loss of business and custom.

6.    As a direct result of the conduct of the Respondents, he has not done any work since publication of the matters complained of.

7.    The publication of the matters complained of has therefore inflicted significant (and ongoing) economic loss on the Applicant.

8.    For example, the Applicant had (prior to publication of the matters complained of) been offered work doing a voice-over in an Australian documentary, for which he was to be paid approximately $30,000.00. That offer was revoked in April 2018. The explanation provided on behalf of the film-makers included:

Our distributors for the film contacted us the other day and say that they think that Geoffrey situation, while unresolved, is currently an issue for them. Its very troubling … All news is global as we know and it has come to our distributors’ attention and they have reacted.

[sic]

…

520    We observe, if it was not already obvious, that the allegation of anxiety, embarrassment, hurt, and other “tremendous emotional and social hardship” in paragraph 5(a) of the letter was made in support of the claim for damages for economic loss. The letter referred to an affidavit of Mr Rush’s solicitor, Mr Nicholas Pullen, dated 9 April 2018, which had been filed for the purpose of an earlier interlocutory hearing. Mr Pullen’s affidavit was tendered at trial on a limited basis to determine the scope of Mr Rush’s particulars. Amongst other things, by his affidavit, Mr Pullen addressed the effect of the publications on Mr Rush, stating that Mr Rush had continued to suffer “tremendous emotional and social hardship” as a result of the publications, and set out some details:

Ongoing hurt to the Applicant

3.    Since the publication of the matters complained of on 30 November 2017 and 1 December 2017 (Publications) the Applicant has continued to suffer tremendous emotional and social hardship.

4.    The Applicant has found that as a direct result of the Publications he has been constantly associated in Australia and internationally with the “#MeToo” movement that involves allegations of sexual misconduct against colleagues in the entertainment industry.

5.    Due to the Publications and the continuing coverage by the Respondents of the matter complained of, the Applicant:

(a)    has been virtually housebound. In the first three months after release of the Publications he rarely left his home;

(b)    feels uncomfortable when in public and will rarely attend public events;

(c)    whenever in public is full of anxiety as he believes people are staring at him in a way that is very challenging, frightening and unnerving;

(d)    has lost his appetite and barely eats;

(e)    wakes up every morning with a terrible sense of dread about his future career;

(f)    is seriously concerned about the ongoing effect on his children and his wife especially in the circles of friends and colleagues with whom they normally socialise;

(g)    is worried for the well being of his children from the impact of the continuing coverage;

(h)    believes that his worth to the theatre and film industry, together with the community at large, is now irreparably damaged;

(i)    suffers lack of sleep and anxiety requiring medication; and

(j)    has retreated from and lacks the necessary motivation to conduct his normal activities in the theatre and film industries.

521    Prior to the trial of the proceeding, outlines of evidence were filed on behalf of Mr Rush. In relation to the consequences of the publications, the outline of evidence of Mr Rush stated at [51]-[54] and [59]-[60]:

51.    He has suffered ongoing hurt and anxiety about the publications. Many people have spoken to him about them. He has read other media that have republished the allegations made by the Respondents and is hurt by the worldwide dissemination of those allegations and is concerned about the damage done to his reputation as a result.

52.    He stepped aside from his post as President of the Australian Academy of Cinema and Television Arts on 2 December 2017 as a result of the matters complained of.

53.    He continues to read the media reporting about the matters complained of and about these proceedings, and suffers as a result. He has been unable to work since the publications.

54.    He has an ongoing concern about the effect of the publications on his family.

…

59.    Prior to publication of the matters complained of, he had intended to continue acting for about another 10 years. In the past he has generally been offered roles that are uninhibited by his age.

60.    Since publication of the matters complained of, he has felt unable to work at all and has had projects withdrawn. He has also been unable to promote work that he completed before the matters complained of. He is unsure whether he will be able to work in the future.

522    An outline of evidence of Mr Rush’s wife, Ms Menelaus, was also prepared, which stated at [12]:

12.    She will give evidence of the impact that the articles have had on the Applicant’s ability to work.

523    As we have mentioned, Mr Rush retained a forensic accountant, Mr Michael Potter. Mr Potter provided a report dated 28 June 2018 that was included in the court book at trial together with the letters of instructions to Mr Potter from Mr Rush’s solicitors. In requesting a report from Mr Potter, Mr Rush’s solicitors by letter dated 14 June 2018 asked him to assume the following, amongst other matters:

…

(e)    The matters complained of have damaged our client’s reputation such that he has not received, and is unlikely in the foreseeable future to receive, the same number of offers of work as an actor.

(f)    As a result of the matters complained of, Mr Rush has been unable to work since publication of the matters complained of and is unlikely to be able to work for some time in the future.

…

524    At trial, senior counsel appearing for Mr Rush opened the case, stating:

These articles have had a devastating effect on Mr Rush, your Honour, personally and professionally. Like many males of his generation, he’s perhaps a little diffident about telling you how deeply he has been hurt by this. But other people will tell you, including Ms Menelaus, his wife, about the effect.

525    Senior counsel at trial also stated in opening that Mr Rush “has suffered real financial harm by this”, and that “[w]e are talking a very substantial claim for loss of income”. Counsel for Mr Rush at trial also prepared a written outline of opening submissions which stated at [250]:

The Applicant has not been offered, or been able to carry out, any work since the first and second matters complained of were published on 30 November 2017.

526    Senior counsel for the appellants submitted during closing submissions at trial that there was nothing in Mr Rush’s particulars that suggested that Mr Rush’s claim for economic loss was based on the theory that he could not work. In his reasons for judgment, the Judge rejected this submission. His Honour referred to Mr Rush’s particulars of economic loss, and stated at [796]:

Despite some apparent confusion or lack of clarity, Mr Rush’s claim in this regard is properly viewed as a claim for financial loss arising from a loss of earning capacity caused by the defamatory publications. He claimed that he had no earning capacity after the defamatory publications because the publications had a debilitating effect on his ability to act and because his reputation had been so damaged that he was unlikely to be offered any acting roles in the future. He claimed that that state of affairs was likely to continue into the future.

527    The Judge returned to the issue at [809], holding that the particulars provided to the appellants by Mr Rush fairly put them on notice that, as part of his economic loss claim, Mr Rush alleged that one of the reasons that he had lost his earning capacity and had not done any work since the publications was that he had suffered anxiety, embarrassment, hurt, and the “tremendous emotional and social hardship” set out in the affidavit of Mr Pullen dated 9 April 2018.

528    In our view, Mr Rush’s particulars of 22 May 2018, which incorporated by reference the matters referred to in Mr Pullen’s affidavit dated 9 April 2018, made clear that Mr Rush claimed damages for economic loss on the grounds set out in the affidavit, including that by reason of the matters alleged, Mr Rush had “retreated from and lacks the necessary motivation to conduct his normal activities in the theatre and film industries”. The maintenance of these allegations was reinforced by the outlines of evidence of Mr Rush and Ms Menelaus, by Mr Potter’s report, and by the written and oral openings made by counsel for Mr Rush at trial. We reject the appellants’ submission that Mr Rush’s claim that he suffered economic loss as a result of his inability to work was not pleaded.

529    Before leaving this topic, there are two further submissions of the appellants that we should address. First, in support of Ground 17, the appellants submitted that at [795] of the Judge’s reasons, his Honour had erred in referring to the affidavit of Mr Pullen as giving details of the loss of the voice-over contract as one example of Mr Rush’s economic loss. In fact, as we have set out at [519] above, the loss of the voiceover contract was squarely alleged in the particulars contained in the letter of 22 May 2018. The Judge’s reference to the affidavit was an obvious slip, and was immaterial. Second, the appellants relied upon the submissions of counsel for Mr Rush on appeal to which we referred at [517] above, where it was submitted that Mr Rush’s claim for economic loss on the basis of his lack of earning capacity was “not specifically pleaded”. Whatever was meant by the phrase “not specifically pleaded”, our review of the pleadings, in the context of the other documents that were served, demonstrates that a claim for economic loss was pleaded, and through the particulars dated 22 May 2018, the appellants were given fair notice that Mr Rush relied upon his incapacity for work as a basis for his claim for economic loss.

Did Mr Rush give evidence of the emotional effect that the articles had on him?

530    In support of the Judge’s finding that the impact that the publications had on Mr Rush and his state of mind was a material reason, if not the main reason, why he stopped working, his Honour held at [843] that as a result of the publications, and the effect they had on Mr Rush mentally and physically, he was simply unable to muster the confidence, concentration, drive, enthusiasm, and stamina to act. His Honour held that this was plainly the most rational, logical and reasonable inference in all the circumstances. At [848] of the reasons for judgment, his Honour accepted that Mr Rush did not himself directly address his inability to work in his evidence, but held that the evidence of the observations of others who were close to him was compelling. We have already referred at [394]-[404] above to the substantial body of evidence concerning the effect that the publications had on Mr Rush, which was unchallenged at trial.

531    The appellants submitted that Mr Rush gave no evidence that he was unable to work in the future due to the emotional toll that the publications had taken on him, and submitted that the absence of such evidence was a “glaring omission”. They submitted that the only evidence arguably relevant to Mr Rush’s inability to work due to his emotional state was given by his agent, Mr Specktor, and by his wife, Ms Menelaus. We have referred to the evidence of Ms Menelaus at [395] above. At [397]-[404] above, we also have referred to the evidence of other witnesses, Ms Kershaw, Ms O’Bryan, Mr Schepisi, and Ms Nevin, concerning their observations of Mr Rush. The appellants referred in their written submissions to the evidence of Ms Menelaus and to the following evidence of Mr Specktor in cross-examination, and claimed that it was “[t]he only evidence arguably relevant to the primary judge’s findings about [Mr Rush’s] inability to work due to his emotional state”:

Q:    If Mr Rush is vindicated by winning this court case, Hollywood will forgive him quick-smart, won’t it? It will - - -?---

A.    That’s a question one – that one can’t say yes or no. All I know is his reputation has been one thing, but his psyche has changed, and it’s about his ability to work that concerns me and probably concerns him.

532    However, Mr Specktor also gave the following evidence-in-chief of his observations of Mr Rush following the publications:

Q:    What effect have you observed on him personally of these articles?

A:    Well, I think has been very destructive to him in terms of his psyche and I think – I know he has had a very difficult time thinking about acting in anything. You know, we can – we do speak usually about once a week and sometimes more, but usually about once a week, and I just see a total difference in him from the time this was in that newspaper and, you know - - -

 Q:    Tell us what difference you’ve noticed about Mr Rush?

A:    Well, you know, usually, we’re very – you know, the conversations are not more than 10 or 15 minutes and they’re very specific and, you know, we may joke a little bit or, you know, have some personal conversation, but since this incident happened, he has been very focused only on this and, really, everything else has just fallen to the side. I think it will be very difficult for him, because of the way he creates his arts and his roles, to really feel that he can do it again, and he’s a perfectionist. As you can see, he didn’t get one award; he has won many awards, and nominated for many of the – you know, he’s one of the – nobody in our business is the best at anything, but everybody – but you can be tied for number 1, and he certainly is.

…

Q:    As an actor. Did Mr Rush disclose or talk to you about how he felt about the articles?

A:    Yes, he was devastated by them. I mean, you know, the man has worked his entire life to, not specifically to go and – to become Australia’s man of the year or to win awards, but he worked hard at what he has done and he has built a career, and in one moment, a newspaper comes out and just tries to destroy it.

533    Mr Simon Phillips, who was the director of the Melbourne Theatre Company production of Twelfth Night from which Mr Rush withdrew following the publications, also gave evidence about the effect of the publications on Mr Rush:

Q:    And what has he said to you? How he feels?---

A:    Well, I’ve been through quite a long journey of discussions with regard to the articles. When the articles first came out Geoffrey was very hurt and very confused, because he couldn’t get any information as to what the actual nature of the accusations, if any, had been. So he spent some months – you know, some weeks in a state of anxiety and confusion about what actually was going on. And then, the more that things progressed and it went on, and the more things that came out in different articles, he became angrier and more distressed and eventually we obviously started to talk about the extent to which what was happening publicly would affect his ability to take part in the play.

Q:    And did he tell you how he felt about being able to perform?---

A:    Yes, he did. We discussed that a lot. He felt that – he felt, rightly I think - - -

534    At this point there was an objection which the Judge overruled, and Mr Phillips’s evidence continued:

Q:    Sorry. Can you please – do you remember the question?---

A:    Yes. Geoffrey’s anxiety about – about performing was that he felt that, you know, this is a – this play we were doing is a comedy. He felt very anxious that it would only – at the most extreme, it would only take one person to heckle him as a result of the contents of the articles for the entire – his entire confidence as a performer to deflate, and indeed for the – the – he was very, very concerned also for the morale of the rest of the actors in the production, that they would go on stage nightly with a sense of insecurity and uncertainty, and it is – you know, I need hardly point out that to perform requires a degree of self-confidence and certainty which, if you have every reason to be insecure on a nightly about what might transpire, he was very anxious about that side of things.

535    Following a further objection, Mr Phillips’s evidence continued, and he stated:

Q:    To your observation, as far as a – from his work perspective, did you observe anything in Mr Rush after these publications that was different to how he was prior to these publications in relation to his attitude to performing?---

A:    Yes. He – yes. As I was saying before, he – he increasingly lost confidence in his ability to perform. He became depressed and – and obsessed about – about the nature of – of what was being said about him publicly and his ability to – I felt that his ability to focus on – on – on performing had diminished to a point of no return.

Q:    And has he ever spoken to you about, other than your observations of his demeanour, has he spoken to you about how he feels about – and this is more recently – how he feels about performing?---