FEDERAL COURT OF AUSTRALIA

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

File number:

NSD 2179 of 2017

Judge:

WIGNEY J

Date of judgment:

11 April 2019

Catchwords:

DEFAMATION – where numerous defamatory imputations alleged – consideration of whether the alleged imputations were conveyed by the publications – consideration of principles of “ordinary reasonable person” and “natural and ordinary” meaning – consideration of whether publications conveyed guilt – consideration of whether publications contained statements as an “antidote” to the “bane” of the defamatory statements – consideration of whether alleged extrinsic facts were matters of general knowledge or notoriety – where defence of justification pleaded by respondents pursuant to s 25 of the Defamation Act 2005 (NSW) – consideration of whether on balance of probabilities the words and “defamatory sting” conveyed by publications were substantially true – where onus of proving pleaded imputations were conveyed by the publications was discharged – where defence of justification failed

Held: application granted – certain defamatory imputations conveyed by the publication – defence of justification not successful

DAMAGES – where applicant sought general compensatory damages for non-economic loss – where applicant sought aggravated damages – assessment of general or compensatory damages – consideration of appropriate and rational relationship between harm sustained by applicant from the publications and the amount of damages – where applicant sought special damages for past economic loss and future economic loss as a result of defamatory publications – consideration of what applicant’s future income would have been but for the defamatory publications – consideration of expert evidence – quantification of damages

Legislation:

Defamation Act 2005 (NSW) ss 4, 8, 25, 29, 30, 34, 35, 35(1), 35(2) and 36

Evidence Act 1995 (Cth) ss 44, 69, 102, 135 and 140

Federal Court of Australia Act 1976 (Cth) ss 51A and 52

Cases cited:

Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225

Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649

Barrow v Bolt [2013] VSC 226

Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; 1 WLR 1526

Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154

Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535

Briginshaw v Briginshaw (1938) 60 CLR 336

Bristow v Adams [2012] NSWCA 166

Broome v Cassell & Co Ltd [1972] AC 1027

Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

Chakravarti v Advertiser Newspapers Limited (1998)193 CLR 519

Chalmers v Payne (1835) 2 Cr M & R 156 at 159; (1835) 150 ER 67

Chase v News Group Newspapers Ltd [2002] All ER (D) 20 (Dec); EWCA Civ 1772; [2003] EMLR 218

Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185

Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227

Coyne v Citizen Finance Limited (1990 – 1991) 172 CLR 211

Crampton v Nugawela (1996) 41 NSWLR 176

Cripps v Vakras [2014] VSC 279

Cross v Queensland Newspapers Pty Limited [2008] NSWCA 80

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Duffy v Google Inc (No 2) [2015] SASC 206

Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186

Fink v Fink (1946) 74 CLR 127

Flegg v Hallett [2015] QSC 167

Flood v Times Newspapers Ltd [2012] 2 AC 273 at [8]; 4 All ER 913

Fox v Boulter [2013] EWHC 1435 (QB)

Fox v Percy (2003) 214 CLR 118

Habib v Nationwide News Pty Ltd (2010) 78 NSWLR 619

Haertsch v TCN Channel Nine Pty Ltd [2010] NSWSC 182

Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194

Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1

Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33

Hough v London Express Newspaper, Ltd [1940] 2 KB 507 at 515; [1940] 3 All ER 31

Howden v “Truth” & “Sportsman” Ltd (1937) 58 CLR 416

John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291

John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; (2003) 201 ALR 77; [2003] HCA 50

Jones v Skelton [1963] 1 WLR 1362; [1963] 3 All ER 952

Lee v Wilson and MacKinnon (1934) 51 CLR 276

Lewis v Daily Telegraph Ltd [1964] AC 234

Ley v Hamilton (1935) 153 LT 384

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

Mastronardo v Commonwealth Bank of Australia Ltd [2018] NSWCA 136

Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1

Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293

Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992)110 ALR 449

Norris v Blake (No 2) (1997) 41 NSWLR 49

O’Brien v McKean (1968) 118 CLR 540

Pahuja v TCN Channel Nine Pty Ltd (No 3) [2018] NSWSC 893

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388

Palmer v The Queen (1998) 193 CLR 1

Plato Films Ltd v Speidel [1961] AC 1090

Puels v Exelerate Funding Pty Ltd (2005) 214 ALR 616

R v SAB (2008) 20 VR 55

R v Uhrig (unreported, New South Wales Court of Criminal Appeal, 24 October 1996)

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460

Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500

Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327

Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550

Rush v Nationwide News Pty Ltd (No 4) [2018] FCA 1558

Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851

Rush v Nationwide News Pty Ltd [2018] FCA 357

Sands v South Australia (2015) 122 SASR 195

Selecta Homes and Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd (2001) 79 SASR 451

Sims v Wran [1984] 1 NSWLR 317

Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1

Slim v Daily Telegraph Ltd [1968] 2 QB 157

Slipper v British Broadcasting Corporation [1991] QB 283

Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140

Speight v Gosnay (1891) 60 LJQB 231

Tabet v Gett (2010) 240 CLR 537

Ten Group Pty Ltd v Cornes (2012) 114 SASR 46

The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64

Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291

Triggell v Pheeney (1951) 82 CLR 497

Trkulja v Google LLC (2018) 356 ALR 178

Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201

Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58

Wilson v Bauer Media Pty Ltd [2017] VSC 521

Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485

Date of hearing:

22, 23, 24, 25, 26, 29, 30, 31 October 2018 and 1, 2, 5, 6, 7, 8 and 9 November 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Other Federal Jurisdiction

Category:

Catchwords

Number of paragraphs:

927

Counsel for the Applicant:

Mr B R McClintock SC with Ms S T Chrysanthou [Mr K Smark SC on 31 October 2018 and 2 November 2018]

Solicitor for the Applicant:

HWL Ebsworth Lawyers

Counsel for the Respondents:

Mr T D Blackburn SC with Ms L Barnett

Solicitor for the Respondents:

Ashurst Australia

ORDERS

NSD 2179 of 2017

BETWEEN:

GEOFFREY ROY RUSH

Applicant

AND:

NATIONWIDE NEWS PTY LIMITED

First Respondent

JONATHON MORAN

Second Respondent

JUDGE:

WIGNEY J

DATE OF ORDER:

11 April 2019

THE COURT ORDERS THAT:

1.    Verdict and judgment be entered for the applicant.

2.    The respondents pay the applicant damages for non-economic loss, including aggravated damages, assessed at $850,000.

3.    The assessment of special damages for economic loss suffered by the applicant be reserved for further consideration.

4.    The matter be listed for a Case Management Hearing at 9.30 am on 10 May 2019 for the purpose of making procedural orders for the determination of all outstanding issues, including the assessment of special damages for economic loss, injunctive relief, costs and interest.

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

REASONS FOR JUDGMENT

The DEFAMATORY matters complained of

[20]

The first matter complained of – The poster

[21]

The second matter complained of – The 30 November 2017 articles

[23]

The third matter complained of – The 1 December 2017 articles

[38]

THE ALLEGED DEFAMATORY IMPUTATIONS

[56]

Imputations allegedly conveyed by the poster

[57]

Imputations allegedly conveyed by the 30 November 2017 articles

[61]

Imputations allegedly conveyed by the 1 December 2017 articles

[64]

ISSUE ONE: Were the imputations conveyed by the matters complained of?

[67]

Relevant principles

[70]

The “ordinary reasonable person” and the “natural and ordinary” meaning

[72]

Investigation, suspicion and guilt

[86]

“Bane and antidote”

[90]

“True innuendo” and extrinsic facts

[92]

Were the alleged extrinsic facts generally known or notorious?

[97]

Imputations conveyed by the poster

[114]

Mr Rush had engaged in scandalously inappropriate behaviour in the theatre

[115]

Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre

[116]

Mr Rush had committed sexual assault in the theatre

[125]

Imputations conveyed by the 30 November 2017 articles

[126]

Mr Rush is a pervert

[127]

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

[147]

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

[154]

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

[160]

Imputations conveyed by the 1 December 2017 articles

[162]

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

[169]

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

[181]

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

[191]

Mr Rush, an acting legend, had inappropriately touched an actress while working on the STC’s production of King Lear

[194]

Mr Rush is a pervert

[195]

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

[202]

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

[208]

Summary of findings in relation to the alleged imputations

[216]

ISSUE TWO: WERE THE IMPUTATIONS SUBSTANTIALLY TRUE?

[220]

Relevant provisions and principles

[221]

The particulars of truth pleaded by Nationwide and Mr Moran

[230]

Uncontroversial background facts

[242]

Mr Rush

[243]

Ms Norvill

[245]

Pre-King Lear contact between Mr Rush and Ms Norvill

[246]

King Lear

[251]

Cast and crew

[254]

Rehearsals

[268]

Previews

[270]

Media and publicity

[272]

Performances

[278]

Complaint

[285]

Mr Rush’s knowledge of the complaint

[289]

Other contact or communications between Mr Rush and Ms Norvill

[299]

Some observations concerning witness demeanour and credibility

[305]

Mr Rush

[312]

Mr Armfield

[320]

Ms Buday

[321]

Ms Nevin

[323]

Ms Norvill

[327]

Mr Winter

[345]

Ms Norvill’s meeting with Ms Crowe in April 2016

[347]

Allegation one: Groping and fondling gestures during a rehearsal

[380]

Ms Norvill’s evidence

[381]

Mr Winter’s evidence

[385]

Mr Rush’s evidence

[394]

Mr Armfield’s evidence

[397]

Ms Buday’s evidence

[399]

Ms Nevin’s evidence

[401]

Other aspects of Ms Norvill’s evidence about the rehearsals

[405]

Ms Norvill’s evidence that everyone in the rehearsal room was “complicit”

[406]

Ms Norvill’s evidence that Mr Rush directed sexual remarks and gestures to other female members of the cast and crew

[420]

Ms Norvill’s evidence concerning conversations she had with Ms Thomson, Ms Nevin and Mr Armfield

[429]

Conversation with Ms Thomson

[430]

Conversations with Ms Nevin

[432]

Conversation with Mr Armfield

[450]

Other evidence

[457]

Findings

[459]

Allegations two and three: Sexual innuendo and lewd gestures during the rehearsals

[467]

Ms Norvill’s evidence

[470]

Mr Winter’s evidence

[475]

Mr Rush’s evidence

[477]

Mr Armfield’s evidence

[486]

Ms Buday’s evidence

[489]

Ms Nevin’s evidence

[491]

Other evidence – Media interviews and statements

[494]

Findings

[502]

Allegation four: “stage-door Johnny crush”

[513]

Ms Norvill’s evidence

[518]

Mr Rush’s evidence

[520]

Other evidence

[523]

Findings

[524]

Allegation five: Stroking or brushing Ms Norvill’s breast

[530]

Ms Norvill’s evidence

[532]

Mr Winter’s evidence

[539]

Mr Rush’s evidence

[542]

Mr Rush’s evidence concerning Mr Trewhella’s email

[549]

Mr Armfield’s evidence

[567]

Ms Buday’s evidence

[573]

Ms Nevin’s evidence

[574]

Other evidence

[575]

Findings

[576]

Allegation six: Touching and brushing Ms Norvill’s lower back

[594]

Ms Norvill’s evidence

[595]

Mr Rush’s evidence

[598]

Other evidence

[603]

Findings

[609]

Allegation seven: Further touching of Ms Norvill’s back

[630]

Ms Norvill’s evidence

[631]

Mr Rush’s evidence

[633]

Findings

[634]

Allegation eight: Texting think of you “more than is socially appropriate”

[636]

The 2014 text messages

[638]

The 10 June 2016 text message

[641]

Ms Norvill’s evidence about the text

[642]

Mr Rush’s evidence

[643]

Ms Buday’s evidence

[647]

Findings

[648]

Summary of findings and conclusion in respect of the truth defence

[657]

CONCLUSION IN RELATION TO LIABILITY

[661]

DAMAGES

[665]

Compensatory damages

[666]

Mr Rush’s reputation prior to the publications

[674]

Publication and republication

[695]

Hurt and distress

[702]

Aggravated damages

[717]

General principles in relation to aggravated damages

[721]

The nature of the 30 November 2017 articles

[728]

The nature of the 1 December 2017 articles

[743]

The course of the proceedings and the reporting thereof

[765]

The falsity of the imputations

[778]

Imputations 10(g) and 10(f)

[780]

Other matters

[782]

Conclusion in relation to aggravated damages

[783]

Assessment of general or compensatory damages

[784]

Special damages for economic loss

[793]

Past economic loss

[799]

Pleading issues

[801]

Main issues

[811]

Why has Mr Rush not worked?

[813]

Findings

[843]

Quantification

[852]

Future economic loss

[861]

Relevant principles

[864]

Summary of the key factual issues

[868]

Will Mr Rush ever be able to work again and if so, when?

[873]

When is Mr Rush likely to receive offers of work?

[878]

What would Mr Rush’s future income have been but for the publications?

[897]

Other issues – The reports of Mr Potter and Mr Samuel

[907]

Quantification

[920]

CONCLUSION IN RELATION TO DAMAGES

[922]

OTHER RELIEF

[924]

JUDGMENT AND ORDERS

[925]

Schedule 1

schedule 2

schedule 3

schedule 4

schedule 5

schedule 6

schedule 7

WIGNEY J:

O, you are men of stones!

Had I your tongues and eyes, I’d use them so

That heaven’s vault should crack. She’s gone for ever.

I know when one is dead and when one lives;

She’s dead as earth. Lend me a looking-glass;

If that her breath will mist or stain the stone,

Why then she lives.

1    So howls a distraught and apparently deranged King Lear as he carries the lifeless body of his youngest daughter, Cordelia, across the stage and then gently lays her on the ground. He then cradles her.

A plague upon you, murderers, traitors all!

I might have saved her; now she’s gone for ever.

Cordelia, Cordelia, stay a little. Ha!

What is’t though sayest? Her voice was ever soft,

Gentle and low, an excellent thing in woman.

I killed the slave that was a-hanging thee.

2    In the Sydney Theatre Company (STC) production of this famous Shakespearian tragedy, performed at the Roslyn Packer Theatre in Sydney in late 2015 and early 2016, King Lear was played by one of Australia’s most celebrated actors, Mr Geoffrey Rush. Cordelia was played by an emerging star of the stage, Ms Eryn Jean Norvill. By all accounts, this production of King Lear was well received, as were the performances by Mr Rush and Ms Norvill. The STC hailed Mr Rush’s return to the STC in its production as one of the highlights of its 2015 season.

3    Well over a year later, however, in the midst of the Harvey Weinstein scandal and the worldwide explosion of the phenomenon which later became known as the #MeToo movement, Sydney’s The Daily Telegraph newspaper published what was said to be aworld exclusive” story concerning the behaviour of Mr Rush during the STC production. That story ran on 30 November 2017. It was heralded by a billboard or poster that screamed “GEOFFREY RUSH IN SCANDAL CLAIMS and “THEATRE COMPANY CONFIRMS ‘INAPPROPRIATE BEHAVIOUR’”.

4    The front page of the 30 November 2017 edition of the Telegraph reproduced the striking, if not somewhat haunting, STC promotional portrait of Mr Rush, made up as the deranged Lear, above the headline “KING LEER”; no doubt an intentional pun. The accompanying story, under another pun-laden headline, “STAR’S BARD BEHAVIOUR”, stated, amongst other things, that Mr Rush had been accused of, but had denied, engaging in “inappropriate behaviour during the STC’s production of King Lear.

5    The following day’s edition of the Telegraph doubled-down on the story. Under the prominent headline “WE’RE WITH YOU”, the front page story claimed that two STC actors had “spoke[n] out in support of the actress who has accused Oscar winner Geoffrey Rush of touching her inappropriately during the stage production of King Lear”. While the accompanying articles again noted Mr Rush’s denial of the accusation, one of the other STC actors was quoted as saying, “I was in the show. I believe (her)” and the other was quoted as saying,[i]t wasn’t a misunderstanding. It wasn’t a joke”. The articles characterised Mr Rush’s denials as “acts of defiance”. Unnamed sources were said to have told the Telegraph that they “believed the woman’s claims” and that the STC would not work with Mr Rush again.

6    The Telegraph articles on both days also appeared, directly or indirectly, to link the accusations that were said to have been made against Mr Rush to other cases where prominent movie executives, actors and “show business” personalities, both overseas and in Australia, had been accused of sexual harassment or misconduct. The 30 November 2017 articles were positioned alongside an article concerning allegations that a former “TV personality”, Mr Don Burke, had been accused of being, amongst other things, a “sexual predator”. One of the 1 December 2017 articles alluded to what was, by that time, the notorious “Harvey Weinstein scandal” and the almost equally notorious accusations of sexual misconduct that had been made against the actor, Mr Kevin Spacey.

7    Mr Rush sued the Telegraph’s publisher, Nationwide News Pty Limited, and the main author of the stories, Mr Jonathon Moran. Mr Rush alleges that the publications conveyed a number of defamatory imputations, including, in summary, that: he had engaged in scandalously inappropriate behaviour in the theatre; he had engaged in inappropriate behaviour of a sexual nature in the theatre; he had committed sexual assault in the theatre; he was a pervert; and he had behaved as a sexual predator and had inappropriately touched an actor while working on the STC’s production of King Lear. Mr Rush claims that the articles published by Nationwide and Mr Moran had brought him into “hatred, ridicule and contempt”, that he has been “gravely injured in his character and reputation as an actor” and that he has “suffered hurt and embarrassment and ha[d] suffered and will continue to suffer loss and damage”. He claims damages, including aggravated damages and special damages for economic loss running into the millions of dollars.

8    Nationwide and Mr Moran defended the proceeding. They allege that the publications did not convey the alleged imputations. They also claim that, in any event, all but one of the imputations that Mr Rush claims were conveyed by their publications were substantially true. In their defence, they maintained that Mr Rush 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. Their contentions were based on claims that Mr Rush had, during the production of King Lear, amongst other things, made lewd gestures and acted in a sexually inappropriate and predatory manner towards Ms Norvill, that he had intentionally touched one of Ms Norvill’s breasts during one of the preview performances, and that he had touched Ms Norvill’s lower back as he was about to carry her on stage during the final scene in the play.

9    Nationwide and Mr Moran also claim that, even if Mr Rush was defamed, he is not entitled to aggravated damages or any damages in respect of economic loss.

10    The issues raised by this case are relatively easy to identify. They are not, however, so easy to resolve.

11    The first issue is whether the poster and the articles published on 30 November and 1 December 2017 conveyed the imputations that Mr Rush alleges they did. If none of the alleged imputations were conveyed, Mr Rush’s case must fail and judgment would have to be entered for Nationwide and Mr Moran.

12    As is so often the case in defamation matters involving the media, the poster and the relevant articles for the most part did not expressly or literally state the defamatory meanings that Mr Rush contends they in fact conveyed. For example, the articles did not, in terms, state that Mr Rush was a pervert or had behaved as a sexual predator. The issue is whether the articles nevertheless would have conveyed those meanings to the ordinary reasonable reader. Would the ordinary reasonable reader in the circumstances have “read between the lines” and concluded that the articles read as a whole were implying or imputing those very meanings?

13    The second issue only arises if it is found that the poster and articles conveyed one or more of the alleged imputations. The issue, in those circumstances, is whether the imputations found to have been conveyed were substantially true as contended by Nationwide and Mr Moran. Importantly, Nationwide and Mr Moran bore the onus of proving the substantial truth of the imputations that were conveyed. To resolve this issue, it is necessary to carefully and dispassionately consider and assess the often conflicting evidence adduced by Nationwide and Mr Moran, on the one hand, and Mr Rush, on the other, concerning Mr Rush’s behaviour towards Ms Norvill during the STC’s production of King Lear. Did, for example, Mr Rush do anything, or act in any way, so as to justify the assertion that he was a pervert, or had engaged in inappropriate behaviour of a sexual nature, or had inappropriately touched Ms Norvill during the production of King Lear?

14    The third issue concerns the loss and damage that Mr Rush claims he has suffered by reason of the defamatory publications. This issue, of course, only arises if it is found that one or more of the imputations was conveyed and Nationwide and Mr Moran cannot demonstrate that they were substantially true.

15    The issue of damages involves three elements. The first element concerns the assessment of the appropriate amount of money to compensate Mr Rush for the personal distress and hurt caused to him by the publication of the defamatory imputations and to vindicate his reputation. The second element involves determining whether Mr Rush is entitled to aggravated compensatory damages arising from any improper or unjustifiable conduct by Nationwide and Mr Moran, including in their conduct of this proceeding, which increased the subjective hurt suffered by Mr Rush. The third, and perhaps most difficult, element involves determining whether Mr Rush suffered a financial or economic loss by reason of the defamatory publications and, if so, determining what that loss was or is.

16    The trial commenced on 22 October 2018 and concluded on 9 November 2018.

17    Mr Rush gave evidence. He also called a number of witnesses in support of his case. In response to Nationwide and Mr Moran’s truth defence, he called evidence from the director of the STC’s production of King Lear, Mr Neil Armfield AO and two actors who performed in the play: Ms Robyn Nevin AM and Ms Helen Buday. Mr Armfield, Ms Nevin and Ms Buday gave evidence about Mr Rush’s reputation, as did a number of other witnesses called in Mr Rush’s case: his wife, Ms Jane Menelaus, Mr Trevor Smith, Ms Robyn Kershaw, Ms Margaret O’Bryan, Mr Simon Phillips, Mr John Gaden AO and Ms Judith Davis. He adduced expert opinion evidence relating to his economic loss claim from three witnesses who were highly experienced in the movie and entertainment industry: Mr Fred Schepisi AO, Mr Fred Specktor and Ms Robyn Russell. He also adduced evidence relating to the quantification of his economic loss claim from a forensic accountant, Mr Michael Potter.

18    Nationwide and Mr Moran’s principal witness in support of their truth defence was Ms Norvill. They also adduced evidence on that issue from another actor who appeared in King Lear, Mr Mark Winter. Finally, they tendered expert opinion evidence in response to Mr Rush’s claim for economic loss. That evidence came from Mr Richard Marks, an entertainment attorney, and Mr Tony Samuel, a forensic accountant.

19    Before addressing the three key issues which have just been highlighted, it is necessary to identify the relevant publications and the imputations that Mr Rush contends were conveyed by them.

The DEFAMATORY matters complained of

20    Section 8 of the Defamation Act 2005 (NSW) provides that a person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter. As has already been noted, Mr Rush’s claim concerns three publications, or “matters complained of”, each of which he contends contained numerous defamatory imputations.

The first matter complained of The poster

21    The first matter complained of was a poster which was distributed for display outside newsagencies throughout New South Wales and the Australian Capital Territory on 30 November 2017. The poster advertised a story which appeared in the Telegraph that day. It contained the words: “World Exclusive Geoffrey Rush in Scandal Claims” and “Theatre Company Confirms ‘Inappropriate Behaviour’”.

22    The poster is reproduced in Schedule 1 to these reasons.

The second matter complained ofThe 30 November 2017 articles

23    The second matter complained of was a series of articles published in the Telegraph on 30 November 2017. Those articles appeared on the front page and pages four and five of the Telegraph. The substance of the articles was also published on the Telegraph’s website and tablet app.

24    The front page of the Telegraph published on 30 November contained a large head and shoulders photograph of Mr Rush apparently made up in the character of King Lear. The photograph appeared above a large headline: “KING LEER, and the smaller headline: “WORLD EXCLUSIVE Oscar-winner Rush denies ‘inappropriate behaviour’ during Sydney stage show”.

25    The text of the article on the front page of the 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.”

26    The story concerning Mr Rush occupied almost all of the front page. Three shorter unrelated stories appeared down the left-hand side of the page.

27    The front page of the Telegraph on 30 November 2017 is reproduced in Schedule 2 to these reasons.

28    The articles concerning Mr Rush continued on pages four and five of the newspaper. Pages four and five faced each other so as to form a two page spread devoted to the story.

29    Page four contained a large headline: “STAR’S BARD BEHAVIOUR”, below a smaller headline continuing across both pages stating: “Oscar-winner Geoffrey Rush denies complaint made in Sydney Theatre Shakespeare production”. Below the headline was a large photograph of Mr Rush when he received his Academy Award and smaller photographs of Mr Rush in character in Twelfth Night and as Einstein in the television series, Genius, as well as a photograph of Mr Rush shaking hands with Governor-General Peter Cosgrove when he received his Order of Australia.

30    The text of the article on page four 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” an 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.

31    The article concerning Mr Rush occupied almost all of page four save for a short article at the foot of the page concerning the New South Wales government’s recycling scheme.

32    Page four of the Telegraph on 30 November 2017 is reproduced in Schedule 3 to these reasons.

33    Page five contained another large photograph of Mr Rush and a smaller photograph showing Mr Rush in character as King Lear. At the top of the page, in larger typescript than was used in the body of the article, statements made by an “STC spokeswoman” and “[l]awyer for Rush, Nicholas Pullen” were quoted. The STC spokeswoman is recorded as having said: “Sydney Theatre Company received a complaint alleging that Mr Geoffrey Rush had engaged in inappropriate behaviour”. Mr Rush’s lawyer is recorded as having said: “It does not warrant comment except that it is false and untrue”.

34    The text of the article on page five was as follows:

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.

35    The article concerning Mr Rush occupied most, but not all, of page five. The layout of page five was such that the article concerning Mr Rush appeared in a box. Two smaller articles appeared outside the box. Importantly, however, another article appeared inside the same box as the article concerning Mr Rush. That article concerned allegations of sexual assault that had been levelled at the former “TV personality”, Mr Don Burke. The text of that article, which appeared under the small headline, “Service to counsel affected Nine staff”, was as follows:

CHANNEL Nine has opened an independent counselling service following allegations this week of sexual assault by former TV personality Don Burke as the network’s boss Hugh Marks addresses staff for the first time, saying “we cannot rewrite history”.

A new phone line was set up yesterday to allow people to report instances of past behaviour they would like addressed.

“Former Nine employees with complaints can provide their personal contact details and HR will follow up directly on a strictly confidential basis,” Nine said in an email to staff.

The counselling will be provided at no cost to them, Nine said, and will support the person to “work through any issues that relate to their time” at Nine.

Mr Marks, meanwhile, told staff that allegations of harassment and misconduct by Burke was “appalling”, vowing to deal with misconduct, harassment, discrimination and bullying issues “effectively”.

Burke returned to Nine’s A Current Affair, this week where he admitted to behaving like a bullying tyrant, and having “a number of affairs”, but cannot remember “exact things I did 20 years ago”.

He has been described as a “sexual predator” and “psychotic bully” during the 17-year run of Burke’s Backyard. Speaking to ACA host Tracy Grimshaw, he claimed to be a victim of a “witch hunt” ignited by the Harvey Weinstein scandal.

36    As will be seen, Mr Rush contends that, in considering the imputations that were conveyed by the 30 November 2017 articles, it is relevant to have regard to the positioning and content of the article concerning Mr Burke.

37    Page five of the Telegraph on 30 November 2017 is reproduced in Schedule 4 to these reasons.

The third matter complained of – The 1 December 2017 articles

38    The third matter complained of is a series of articles, published in the Telegraph on 1 December 2017. Those articles appeared on the front page and pages four and five. The articles were also substantially published on the Telegraph’s website and tablet app.

39    The front page of the Telegraph on 1 December 2017 contained a banner headline: “UNSCRIPTED DRAMA: THE OSCAR STAR SCANDAL”, above a very large headline: “WE’RE WITH YOU”, and a smaller headline: “Theatre cast back accuser as Rush denies ‘touching’”. The front page also included a large photograph of the actor, Mr Meyne Wyatt, alongside the words, apparently attributed to Mr Wyatt: “I was in the show. I believe (her)”.

40    The text of the article on the front page 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”.

41    The story concerning Mr Rush occupied almost all of the front page. Three smaller unrelated stories appear at the very foot of the page.

42    The front page of the Telegraph on 1 December 2017 is reproduced in Schedule 5 to these reasons.

43    Pages four and five of the Telegraph on 1 December 2017, which again appeared as a double page spread, contained a series of articles all of which related, in one way or another, to the allegations made against Mr Rush. Spread across the top of both pages was a large headline: “ACTS OF DEFIANCE”. Appearing under that headline were extracts from social media “posts” by Mr Wyatt and another actor, Mr Brandon McClelland. Mr Wyatt and Mr McClelland were pictured alongside short descriptions of their acting careers.

44    Mr Wyatt’s post, as portrayed in the articles, was:

I was in the show. I believe whoever 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!!!

45    Two lines of Mr Wyatt’s post were blacked-out or redacted.

46    Mr McClelland’s post or “tweet”, as reproduced in the articles, was:

It wasn’t a misunderstanding. It wasn’t a joke.

47    The article which accompanied the social media posts of Mr Wyatt and Mr McClelland appeared under the headline: Sydney Theatre Company actors support complainant’s claims against megastar Rush. The text of that article was 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”.

48    Extracts from statements made by Mr Rush and the STC also appeared under the “ACTS OF DEFIANCE” headline. The extract from Mr Rush’s statement was as follows:

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 … 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.

49    The extract from the STC’s statement was as follows:

Sydney Theatre Company was asked by a News Corp 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.

50    On the left-hand side of page four, a separate article appeared under the headline: “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.”

51    A photograph of the Old Vic Theatre in London appeared above the article. That photograph was obviously included because the article referred to complaints having been made against Mr Spacey arising from his time as artistic director at that theatre.

52    The following article appeared at the foot of page four under the headline: “Statement for acting veteran blasts STC ‘smear’”:

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.

53    Two smaller articles relating to Mr Rush also appeared at the foot of page five. The first of those articles, which appeared under the headline: “THEATRE’S FIRM STATE OF PLAY”, was in the following terms:

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.”

54    The other article, which appeared under the headline: “Execs’ exile for star”, and alongside a photograph of Mr Rush in character in the film, Pirates of the Caribbean, was in the following terms:

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.

55    Pages four and five of the Telegraph on 1 December 2017 are reproduced in Schedules 6 and 7.

THE ALLEGED DEFAMATORY IMPUTATIONS

56    As has already been noted, Mr Rush alleges that each of the three matters complained of carried a number of different defamatory imputations.

Imputations allegedly conveyed by the poster

57    Mr Rush claims that the poster conveyed the following two defamatory meanings or imputations:

(a)    Mr Rush had engaged in scandalously inappropriate behaviour in the theatre.

(b)    Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre.

58    Mr Rush also alleges that, by reason of certain “extrinsic facts”, the poster conveyed two further defamatory imputations, being:

(a)    Mr Rush had committed sexual assault in the theatre.

(b)    Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre.

59    The particulars of the alleged extrinsic facts pleaded by Mr Rush are as follows:

(a)    Mr Rush is a famous Australian Hollywood actor.    

(b)    In the weeks preceding the publication of the first matter complained of, a number of famous actors and movie and television executives, including in Hollywood, had been portrayed in the media and on social media as sexual predators who had committed acts of sexual assault and/or sexual harassment.

(c)    In the weeks preceding the publication of the first matter complained of, famous Hollywood film producer Harvey Weinstein had been portrayed as a sexual predator who had committed acts of sexual assault and/or sexual harassment.

(d)    In the weeks preceding the publication of the first matter complained of, famous Hollywood actor Kevin Spacey had been portrayed as a sexual predator who had committed acts of sexual assault and/or sexual harassment.

(e)    In the days preceding the publication of the first matter complained of, Australian television personality Don Burke was portrayed by the media as being a sexual predator.

(f)    Each of the facts set out in (a)-(e) above were notorious facts.

(g)    Readers of the first matter complained of were aware of the facts set out in (a)-(e).

60    Nationwide and Mr Moran deny that the poster conveyed any of the alleged imputations, either in its natural and ordinary meaning, or with the aid of the alleged extrinsic facts or otherwise.

Imputations allegedly conveyed by the 30 November 2017 articles

61    Mr Rush alleges that the 30 November 2017 articles conveyed the following defamatory imputations:

(a)    Mr Rush is a pervert.

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

62    Mr Rush also alleges, in the alternative, that the 30 November 2017 articles conveyed those four defamatory imputations by reason of the same extrinsic facts referred to earlier in the context of the poster.

63    Nationwide and Mr Moran deny that the 30 November 2017 articles conveyed any of the alleged imputations, either in their natural and ordinary meaning, or with the aid of the alleged extrinsic facts or otherwise.

Imputations allegedly conveyed by the 1 December 2017 articles

64    Mr Rush alleges that the 1 December 2017 articles conveyed the following defamatory imputations:

(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, an acting legend, 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.

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

65    Mr Rush also alleges, in the alternative, that the 1 December 2017 articles conveyed those seven defamatory imputations by reason of the extrinsic facts referred to earlier.

66    Nationwide and Mr Moran deny that the 1 December 2017 articles conveyed any of the alleged imputations, either in their natural and ordinary meaning, or with the aid of the alleged extrinsic facts or otherwise.

ISSUE ONE: Were the imputations conveyed by the matters complained of?

67    Nationwide and Mr Moran ultimately conceded that if the relevant publications conveyed the imputations alleged by Mr Rush, they were defamatory of him. That concession was properly made. Plainly the imputations, if conveyed, would have tended to lower Mr Rush’s reputation in the opinion of right thinking members of the community: cf. Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638-639.

68    The critical question is whether the imputations were conveyed as alleged by Mr Rush.

69    The publications did not directly or literally state that Mr Rush had engaged in scandalously inappropriate behaviour in the theatre; that he had engaged in inappropriate behaviour of a sexual nature in the theatre; that he had committed sexual assault in the theatre; that he was a pervert; or that he had behaved as a sexual predator and had inappropriately touched an actress while working on the STC’s production of King Lear. But did the publications nonetheless convey some or all of those meanings to the ordinary reasonable reader? Would the ordinary reasonable reader have “read between the lines” and understood that those meanings were implied or imputed by the publications?

Relevant principles

70    The principles to be applied in determining whether a publication conveyed defamatory imputations are well settled and were not significantly in issue in this proceeding. The lead authorities and the principles established by them were summarised by Hunt CJ at CL (with whom Mason P and Handley JA agreed) in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164-165, and were more recently considered in this Court by White J in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at [63]-[73]; see also Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [14]-[27]. The basic principles were also recently considered by the High Court in Trkulja v Google LLC (2018) 356 ALR 178 at [30]-[32] in the context of an appeal from the summary dismissal of a defamation action.

71    It is, for the most part, unnecessary to discuss or even cite all the well-known authorities. The basic principles relevant to this case may be summarised as follows.

The “ordinary reasonable person” and the “natural and ordinary” meaning

72    First, the applicant, here Mr Rush, bears the onus of proving, on the balance of probabilities, that the alleged defamatory meanings or imputations were conveyed by the publication in question.

73    Second, the question of whether the defamatory meanings were in fact conveyed is a question of fact.

74    Third, the relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person. Where, as here, the publications are in writing, the question is what the words used would have conveyed to the ordinary reasonable reader. The Court is required to put itself in the shoes of, or assume the role of, the ordinary reasonable reader. The question is not a question of construction of the words used in the article in the legal sense.

75    Fourth, in this context the authorities ascribe the ordinary reasonable reader with certain character traits, qualities or characteristics. The ordinary reasonable reader is variously said to be of fair to average intelligence, experience and education. The ordinary reasonable reader is also taken to be fair-minded and neither perverse, morbid nor suspicious of mind, nor avid for scandal. Of course, as the High Court pointed out in Trkulja at [31], ordinary men and women in fact have different temperaments, outlooks, degrees of education and life experience, so the exercise is really one of “attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning”.

76    Fifth, the meaning that the words would convey to the ordinary reasonable reader is often called “the natural and ordinary meaning” of the words. In some cases, the natural and ordinary meaning of the words may be obvious from the direct or literal meaning of the words themselves. More often than not, however, the question turns on what implications or imputations the ordinary reasonable reader would understand were conveyed by the words.

77    Sixth, in determining what implications or imputations the ordinary reasonable reader would understand or draw from the words, the authorities suggest that the ordinary reasonable reader should generally be taken to approach or consider a publication in a particular way or ways. The ordinary reasonable reader is, for example, said not to be a lawyer who examines the publication overzealously, but rather someone who views the publication casually and is prone to a degree of “loose thinking”. The ordinary reasonable reader also apparently does not live in an “ivory tower” but can and does read between the lines in light of their general knowledge and experience of worldly affairs. While they do not search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would. While they read the entire publication and consider the context as a whole, they take into account emphasis that may be given by conspicuous headlines or captions.

78    Seventh, the mode or manner of publication can be a relevant matter in determining what was conveyed to the ordinary reasonable reader. The ordinary reasonable reader of a book, for example, is likely to read it with more care than he or she would read an article in a newspaper, particularly if that article is sensational. The ordinary reasonable reader of such an article is more prone to engage in loose thinking. That is all the more so where the words which are published are imprecise, ambiguous, loose, fanciful or unusual.

79    Eighth, as already adverted to, each alleged defamatory imputation has to be considered in the context of the entire publication. It does not follow, however, that each part of the publication must be given equal significance. A headline, for example, may give the reader a predisposition about what follows and may therefore assume particular importance: John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [187]; (2003) 201 ALR 77 at [187]; [2003] HCA 50 at [187] (Callinan J; Gleeson CJ agreeing at [1]; Heydon J agreeing at [219]; see too McHugh J at [26]). Equally, contrary statements in an article will not necessarily or automatically negate the effect of other defamatory statements contained in the article: Rivkin at [26] (per McHugh J) and the cases there cited.

80    Ninth, the meaning that an ordinary reasonable reader would attribute to a publication, or the impression that the reader forms, may be influenced by the overall tone or tenor of the article in question. The article may, for example, be tinged with, or even pregnant with, insinuation or suggestion. It may also implicitly invite the reader to adopt a suspicious approach. As Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137:

It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong.

81    Tenth, the natural and ordinary meaning of words may be either the literal meaning, or an implied or inferred or an indirect meaning based on the general knowledge of the ordinary reasonable reader: Jones v Skelton [1963] 1 WLR 1362 at 1370; [1963] 3 All ER 952 at 958F. General knowledge, in this context, includes “matters of universal notoriety – that is to say, matters which any intelligent viewer or reader may be expected to know”: Fox v Boulter [2013] EWHC 1435 (QB) at [16] (citing Lord Mansfield CJ in R v Horne [1775-1802] All ER Rep 390 at 393E). Evidence is not admissible to prove the general knowledge of the ordinary reasonable reader: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506-507.

82    Eleventh, the determination of what an ordinary reasonable reader would read into or imply from the words complained of is often a matter of impression.

83    Twelfth, while a publication may in some cases be reasonably capable of bearing more than one meaning, the tribunal of fact, whether it be a jury or a judge sitting alone, must ultimately determine whether the alleged defamatory meaning was in fact the single natural and ordinary meaning of the words complained of: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173-175: Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 at [34], [47]-[50]; Hockey at [73].

84    Thirteenth, in determining the meaning in fact conveyed by the publication, the intention of the publisher is irrelevant: Lee v Wilson and MacKinnon (1934) 51 CLR 276 at 288 (per Dixon J); Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; 1 WLR 1526 at [24].

85    Fourteenth, the manner in which the publication was actually understood is also irrelevant in determining what meaning was conveyed to the ordinary reasonable reader: Hough v London Express Newspaper, Ltd [1940] 2 KB 507 at 515; [1940] 3 All ER 31 at 35; Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at 301-302. The question is to be determined on the basis of the natural and ordinary meaning of the publication alone.

Investigation, suspicion and guilt

86    A mere statement that a person is being investigated by the police or prosecution agencies, or that a person is suspected of committing a crime, does not necessarily impute guilt. It may convey no more than that there are reasonable grounds to suspect that the person is guilty, or that there are reasonable grounds for investigating whether the person is guilty: Lewis v Daily Telegraph Ltd [1964] AC 234 at 267-268 (per Lord Morris of Borth-y-Gest); Chase v News Group Newspapers Ltd [2002] All ER (D) 20 (Dec); EWCA Civ 1772; [2003] EMLR 218; Flood v Times Newspapers Ltd [2012] 2 AC 273 at [8]; 4 All ER 913 at [8]; Sands v South Australia (2015) 122 SASR 195 at [237]-[240]. The question in such a case is which of the possible meanings was in fact conveyed to the ordinary reasonable reader in all the circumstances. Much will depend on the context, the words used and the information conveyed by the publication considered as a whole.

87    In that context, in Lewis v Daily Telegraph, Lord Devlin said (at 285):

It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.

88    Similarly, in Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 (the facts of which, unlike Lewis v Daily Telegraph, somewhat ironically concerned a publication about a fire), Gleeson CJ, McHugh, Gummow and Heydon JJ said (at [12]):

A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise.

(Emphasis in original. Footnote omitted.)

89    There is no reason to suppose that those principles do not equally apply where the relevant publication concerns a complaint which has been made to, or is being investigated by, a person or body other than the police or the prosecution service.

“Bane and antidote”

90    There may be cases where the relevant publication includes not only defamatory statements (the “bane”), but also contrary statements or conclusions (the “antidote”). The applicable principle in such a case is that if “[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together: Chalmers v Payne (1835) 2 Cr M & R 156 at 159; (1835) 150 ER 67 at 68; Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 at [16].

91    The question whether defamatory meanings conveyed by statements made in a publication have been removed by other statements in the publication – whether the antidote has overcome the bane is a question of fact which again must be approached from the perspective of the ordinary reasonable reader. In that context, it must also be noted that the “bane and antidote theory reflects the fundamental proposition [that] the reader is entitled to give some parts of the article more weight than other parts: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [146], citing Rivkin at [50] (per McHugh J). It follows that contrary statements or conclusions in a publication will not necessary remove or undo the defamatory meanings otherwise conveyed.

“True innuendo” and extrinsic facts

92    As was noted earlier, Mr Rush contends that, if the alleged imputations did not arise from the natural and ordinary meaning of the words used in the publications, they nevertheless arose in circumstances where the words would have been read in conjunction with certain extrinsic facts. In World Hosts, Mason and Jacobs JJ said (at 641):

When read in conjunction with extrinsic facts, words may, in the law of defamation, have some special or secondary meaning additional to, or different from, their natural and ordinary meaning. This special or secondary meaning is not one which the words, viewed in isolation, are capable of sustaining. It is one which a reader acquainted with the extrinsic facts will ascribe to the matter complained of by reason of his knowledge of those facts because he will understand the words in the light of those facts.

93    Cases where the alleged defamatory imputations are alleged to have been conveyed having regard to the existence of extrinsic facts are said to involve a plea of “true innuendo”. In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, French CJ, Gummow, Kiefel and Bell JJ described a plea of true innuendo in the following terms (at [51]):

When a true innuendo is pleaded evidence may be given of special facts, known to those to whom the matter was published, such as would lead a reasonable person knowing those facts to conclude that the words have another, defamatory, meaning. The essential requirement of the plea is that the matter is not one within the general knowledge of the hypothetical referees.

(Footnotes omitted.)

94    As was made clear in Chesterton, an essential requirement of the plea of true innuendo is that the alleged extrinsic or special facts are not within the general knowledge of those to whom the matter was published. The reason for that requirement is, as has already been noted, matters of general knowledge can in any event be considered in determining whether the alleged imputations were conveyed by the natural and ordinary meaning of the words used in the publication. This was explained by Lord Morris of Borth-y-Gest in Jones v Skelton at 1370-1371:

The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.

95    As also noted earlier, matters of general knowledge are usually matters of universal notoriety or matters which any intelligent viewer or reader may be expected to know: Fox v Boulter at [16]. Evidence is not admissible to prove the general knowledge of the ordinary reasonable reader: Reader’s Digest at 506. Evidence is, however, admissible to prove special or extrinsic facts.

96    Given Mr Rush’s alternative plea of true innuendo, it is necessary, before considering whether the alleged imputations were conveyed, to briefly address whether the alleged extrinsic facts pleaded by Mr Rush were matters of general knowledge or notoriety, or whether they were facts that it was necessary for Mr Rush to prove.

Were the alleged extrinsic facts generally known or notorious?

97    The approach taken by the parties to this issue was not entirely helpful.

98    Mr Rush’s pleading was somewhat schizophrenic in relation to the way it dealt with the alleged extrinsic facts. That is because the pleading alleged that the so-called extrinsic facts were notorious. As has just been made clear, however, if the facts were notorious, they cannot be extrinsic or special facts for the purposes of a plea of true innuendo.

99    Ultimately, however, the submissions advanced on behalf of Mr Rush made it clear that their primary case was that the alleged imputations were conveyed by the natural and ordinary meaning of the publications. In that context, Mr Rush submitted that the alleged extrinsic facts were notorious facts and matters of general knowledge and that regard could accordingly be had to those facts in determining whether the imputations were so conveyed.

100    Mr Rush’s true innuendo case was pleaded in the alternative. He contended that if the Court did not find that the alleged extrinsic facts were matters of common knowledge, he was entitled to prove, and had proved, that they were nevertheless facts which were known to ordinary readers of the Telegraph. In that regard, Mr Rush tendered two lever-arch folders containing copies of numerous articles, including many published in the Telegraph, which he contended showed that in the weeks preceding the publication of the poster and the 30 November and 1 December 2017 articles, numerous actors and movie and television executives, including Harvey Weinstein, Kevin Spacey and Don Burke, had been portrayed by the media as being sexual predators who had committed acts of sexual assault or sexual harassment. He contended that those extrinsic facts were “special”, in the sense that that they would lead ordinary reasonable readers who knew them to conclude that the words used in the relevant Telegraph publications concerning Mr Rush conveyed the alleged defamatory imputations, even though they may not have been conveyed by the natural and ordinary meaning of the words used in the publications.

101    The position taken by Nationwide and Mr Moran in relation to the alleged extrinsic facts was even less helpful. They did not admit the alleged extrinsic facts, either in their defence or in response to a Notice to Admit Facts served on them by Mr Rush. They did not, however, object to the tender of the two lever-arch folders containing copies of the media articles. More significantly, they did not submit that the articles included in the lever-arch folders did not prove the alleged extrinsic facts. The response given by Nationwide and Mr Moran’s senior counsel, when pressed on that issue in the course of oral submissions, could best be described as noncommittal; it was not conceded that the articles proved the facts, though equally it was not said that they did not. No specific submissions were advanced concerning the content of the articles in the folders. Virtually nothing was said about them.

102    It was almost conceded, somewhat begrudgingly, that it may have been general knowledge that Mr Rush was a “famous Australian Hollywood actor”, though even that apparent concession was hedged by a quibble about the meaning of “Australian Hollywood actor”. It may be noted, in that context, that Mr Rush was repeatedly referred to as an Oscar winning Australian actor in the relevant Telegraph publications.

103    The question whether the pleaded extrinsic facts were or were not notorious, or within the general knowledge of the ordinary reasonable reader is, in a sense, rather academic or arcane. If they were, they can be considered in determining whether the natural and ordinary meaning of the words used in the impugned publications conveyed the alleged imputations to the ordinary reasonable reader. If they were not notorious, they can, if proved to be facts known, or likely to be known, to ordinary reasonable readers of the Telegraph, be considered in determining whether the impugned publications conveyed the imputations to those readers, even if they were not conveyed by the natural and ordinary meaning of the words used.

104    Nonetheless, it is necessary to make findings in relation to this issue.

105    In my view, the substance or effect of the pleaded extrinsic facts could be described as having been notorious or matters of general knowledge at the relevant time. It is, in those circumstances, unnecessary for Mr Rush to have recourse to the true innuendo plea.

106    In my view, it may be readily accepted that, by the date of the allegedly defamatory publications, it was generally known by most people who engaged in any way with the print or broadcast media, as well as social media, that in the months preceding the publications serious allegations of sexual harassment or sexual misconduct had been made against a number of prominent actors and movie and television executives. The allegations which had been made against Mr Weinstein were perhaps most notorious, though allegations that had been made against Mr Spacey had also been widely reported. In Australia, it was also widely known that allegations of bullying and harassment, including of a sexual nature, had been made against Mr Burke. The exposure of the claims and allegations against such persons eventually became known collectively as the #MeToo movement, particularly on social media, which had provided a popular public platform for the discussion and exposure of such allegations, particularly in the entertainment industry. Hence the hashtag.

107    It may also be readily accepted that, at the time of the publications, it was widely and generally known, to the point of being notorious, that the famous actors and movie and television actors who had been exposed as having allegedly engaged in such conduct were frequently portrayed in the media, and on social media, as sexual predators who had committed acts or sexual assault and sexual harassment. That was despite the fact that, in many cases, only allegations of such conduct had been made. It was in my view common knowledge throughout much of the world at the time that, as part of the growing public discourse that became the #MeToo movement, Harvey Weinstein and Kevin Spacey were regularly portrayed in the media, and on social media, as sexual predators. The same could be said about Don Burke, at least in Australia.

108    It should be noted, in this context, that Nationwide and Mr Moran initially appeared to accept that the existence of the #MeToo movement, and the underlying allegations of sexual misconduct that were the subject of it, were matters of universal notoriety or general knowledge at the time of the publication of the articles in question. In their Second Further Amended Defence, Nationwide and Mr Moran pleaded the following “background context” to the publications as part of their then pleaded defence of qualified privilege:

29.    In the months preceding the publication of the matters complained of:

29.1    There have been widespread reporting in Australia and internationally in relation to allegations of sexual misconduct, bullying and harassment in the entertainment industry which originated with allegations of misconduct by Harvey Weinstein, a powerful Hollywood movie producer and include allegations of misconduct by other men in the entertainment industry including, but not limited to, Kevin Spacey, Dustin Hoffman, Louis CK and Casey Affleck, as well as a report by the Media Entertainment & Art Alliance Actors Equity into widespread sexual harassment in Australian theatre.

29.2    The reporting included allegations to the effect that the misconduct was known in the industry but covered up, silenced or protected.

29.3    The reporting gave rise to a movement commonly referred to as the #MeToo movement which encouraged women who had been subject to sexual misconduct, bullying or harassment to speak out with a view to discouraging such conduct from occurring.

109    Nationwide and Mr Moran ultimately abandoned their defence of qualified privilege and their defence was amended accordingly by striking those paragraphs out. Those paragraphs in the superseded pleading cannot, in those circumstances, be taken to be a concession or admission by Nationwide and Mr Moran that the facts referred to in them were matters of notoriety or general knowledge. That said, they would appear to be a fair reflection of what were, in fact, matters of general knowledge at the relevant time.

110    In any event, even if I am wrong in finding that the pleaded extrinsic facts were matters of notoriety and general knowledge at the time of the publications, I am nevertheless satisfied that the ordinary reader of the Telegraph would have been aware of the extrinsic facts and would have read the relevant publications in the context of that knowledge. As already noted, Nationwide and Mr Moran did not object to the tender of the two lever-arch folders which contained copies of many media articles which had, for the most part, been published in October and November 2017. Many, if not most, of those articles in fact portrayed Harvey Weinstein, Kevin Spacey and a number of other actors and movie and television executives as sexual predators who had committed acts of sexual assault and/or sexual harassment. Many of the articles also portrayed Don Burke as a sexual predator who had committed acts of sexual assault and/or sexual harassment.

111    It is unnecessary to discuss this evidence in any great detail, particularly given the absence of any meaningful submissions from Nationwide and Mr Moran on this issue. It is perhaps sufficient to give some pertinent examples.

    The front page of the Telegraph on 20 October 2017 included a “scoop” by Mr Moran which reported that “[v]eteran TV journalist Tracey Spicer claims she has uncovered up to 40 ‘household’ names’ guilty of sexual harassment and assault while working in the nation’s media industry.” Ms Spicer was also reported to have “vowed” in the “wake of the Harvey Weinstein scandal in the US” to “name and shame those in the industry she claims have perpetrated indecent acts on colleagues”.

    The 12 October 2017 edition of the Telegraph contained an article under the heading “Gropes of Wrath” which reported that Harvey Weinstein had been accused of raping three women “as a string of stars also alleged he had harassed or assaulted them during decades of predatory behaviour” (emphasis added).

    The 31 October 2017 edition of the Telegraph contained an article about Harvey Weinstein which reported that “[m]ore than 70 high-profile women, including actors Ashley Judd, Daryl Hannah and Gwyneth Paltrow” had “come forward with horrifying stories about the disgraced Weinstein’s behaviour”. Some of the women were said to have “accused him of serious misconduct, ranging from harassment to sexual assault and rape”. On the same page (and in the same formatted box) a prominent article reported that Kevin Spacey had been accused of making drunken sexual advances to a 14 year old boy, actor Anthony Rapp, at his Manhattan apartment. It was reported that the allegations were “the latest in a string of high-profile sex scandal[s] to dog Hollywood in recent weeks”.

    The digital edition of the Herald Sun on 31 October 2017 included an opinion piece which opined that “Kevin Spacey should be treated exactly the same as serial predator Harvey Weinstein” (emphasis added). The article referred to Kevin Spacey’s “predatory sexual advances”.

    An opinion piece in the Telegraph on 1 November 2017 said that “[j]ust as we were coming to terms with the extent of Harvey Weinstein’s predatory behaviour with the list of women allegedly assaulted growing to more than 80, the industry has again been rocked by allegations of sexual misconduct, this time against a child, by much loved and respected Hollywood A-lister, Kevin Spacey” (emphasis added). The piece continued: “[i]n the past, stories about prominent figures were often suppressed but times are changing and the famous and powerful are being named and shamed. That is empowering for genuine victims but it can be terrifying for innocent people who are falsely accused”.

    An online edition of The Sydney Morning Herald on 3 November 2017 referred to a production assistant describing Kevin Spacey’s behaviour on set as “predatory”. Mr Spacey’s behaviour was said to have included “non-consensual touching” and “crude comments”.

    The 3 November 2017 edition of the Telegraph contained a series of articles, grouped together in a box, all of which dealt with allegations of sexual misconduct by Hollywood actors. One article referred to Dustin Hoffman being “caught up in the Hollywood sex scandal” because he had been accused of “groping a teenager”. Another article reported that Kevin Spacey was facing more accusations of “preying on young men and teenagers” and “grooming and sexual harassment”. The main article on the page, under the headline “YOU ARE A DIRTY RATNER”, reported that “Hollywood’s widening sleaze crisis has now snared director Brett Ratner after six women accused him of sexual misconduct”. The article stated that “Ratner is the latest Hollywood heavyweight to be accused of sexual misconduct following the scandals engulfing Harvey Weinstein, James Toback and Kevin Spacey”.

    The 18 November 2017 edition of the Telegraph included a prominent article by Mr Moran which reported that Mr John Jarratt, the “star of one of Australia’s most harrowing horror films has been accused of sexual assault in the wake of the Harvey Weinstein scandal that has engulfed Hollywood”. The article again referred to Tracey Spicer’s investigation and to the fact that the “scandal” surrounding Mr Weinstein had “swiftly spread throughout the industry, leading to allegations against other US personalities, most notably Kevin Spacey and stand-up comedian Louis CK”.

    A prominent article in the Telegraph on 27 November 2017 reported that Don Burke had declared “I’m no Harvey Weinstein” after sexual harassment allegations had been made against him. The article referred to a joint ABC/Fairfax investigation which alleged that Don Burke was a “psychotic bully”, a “misogynist” and a “sexual predator” who had sexually harassed and bullied a number of female employees (emphasis added). Mr Burke was said to have linked the attacks on him to the “media outrage” that followed the “outing of the powerful boss Harvey Weinstein as a sexual abuser and harasser”.

    The edition of the Telegraph which was published on 28 November 2017 (only a few days before the publication of the articles the subject of this proceeding) contained a front page article about the “Grubby TV gardener”, Don Burke. The article reported that Mr Burke had denied he was a “sexual predator and put down accusations of misconduct from several women as nothing more than a ‘social media witch hunt’.”

    Page eight of the Telegraph on the same day contained a prominent story which appeared under a headline which employed a pun that perhaps only a die-hard AC/DC fan would have detected (and which would probably have made Bon Scott and Malcolm Young turn in their graves): “DIRTY DEEDS: DON BURKE CREEP”. The article reported that Don Burke was facing “multiple accusations he used his star power to harass and bully women for years”. It was reported that Mr Burke had said that “in light of the recent domino effect of the Harvey Weinstein saga” his accusers had seen this as a chance to “nail him”.

    The digital edition of the Telegraph on the same day also reported that Don Burke had “denied being a sexual predator and a bully” (emphasis added). He claimed to be a victim of a “witch hunt” ignited by the Harvey Weinstein sexual harassment scandal”.

112    There were many similar articles.

113    I am satisfied on the balance of probabilities that, even if the substance and effect of the pleaded extrinsic facts were not notorious or matters of general knowledge, Mr Rush was entitled to rely on the extrinsic facts in support of his alternative true innuendo plea.

Imputations conveyed by the poster

114    The imputations allegedly conveyed by the poster were that Mr Rush had engaged in scandalously inappropriate behaviour in the theatre and that he had engaged in inappropriate behaviour of a sexual nature in the theatre. Those imputations were alleged to have been conveyed by the natural and ordinary meaning of the words used in the poster, or alternatively by the extrinsic facts. Mr Rush also alleged that, by reason of the extrinsic facts, the poster also conveyed the imputation that Mr Rush had committed sexual assault in the theatre.

Mr Rush had engaged in scandalously inappropriate behaviour in the theatre

115    While denied on the pleadings, Nationwide and Mr Moran ultimately accepted that this imputation would have been conveyed to the ordinary reasonable reader. That concession was hardly surprising given the words used in or on the poster.

Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre

116    The additional element in this imputation is that the inappropriate behaviour was of a sexual nature”. The difficulty for Mr Rush is that the poster does not refer to the nature of the inappropriate behaviour, other than that it was sufficient to amount to a “scandal”. The word “sexual” is not used.

117    Mr Rush submitted that the ordinary reasonable reader would infer or conclude that the inappropriate behaviour referenced in the poster was of a sexual nature from the use of the word “scandal”. He contended, in effect, that scandals are almost invariably of a sexual nature. He referred, in that context, to the so-called Profumo affair; a “scandal” which played out in the early 1960s in Britain and involved a sexual relationship between the then Secretary of State for War, Mr John Profumo, and a 19-year-old would-be model.

118    There are at least two difficulties with that argument. First, the Profumo affair or scandal would perhaps only be a notorious fact or a matter of general knowledge amongst persons of a particular vintage (no offence to Mr Rush’s senior counsel is intended) and background. Second, and more fundamentally, not all scandals necessarily involve sexual affairs or behaviour, even if scandals which involve British politicians often do. A scandal is generally considered to be something which involves disgraceful or discreditable actions or circumstances. It is possible to think of many events or occurrences over the years which have been described as scandals, but which do not involve any conduct of a sexual nature. Nationwide and Mr Moran referred to the Watergate scandal in that regard. Closer to home, to give but two examples, the allegations concerning the Australian Wheat Board’s sale of wheat to Iraq in the mid-2000s was described by many as the oil-for-food scandal”; and the various corruption allegations levelled against former New South Wales politicians, Mr Eddie Obeid and Mr Ian Macdonald, were also generally described as scandals.

119    Mr Rush also submitted that the expression “inappropriate behaviour” is consistent only with some form of sexual misconduct. It is difficult to accept such a broad submission. Much will depend on the context in which the expression is used. Even in a workplace setting, inappropriate behaviour may include conduct which has no sexual component, such as bullying.

120    It is true, as submitted by Mr Rush and discussed earlier, that the natural and ordinary meaning of the words used in the poster must be considered in the context of what was generally known at the time about the #MeToo movement and the allegations of sexual misconduct that had been levelled against a number of well-known figures in the entertainment industry. Even in that context, however, on balance it is doubtful that the words used in or on the poster would have conveyed to the ordinary reasonable reader that Mr Rush had engaged in inappropriate behaviour of a sexual nature.

121    Mr Rush was, of course, a well-known actor. It does not necessarily follow, however, that the ordinary reasonable reader would, without more, necessarily have connected the assertion of inappropriate behaviour with the #MeToo movement and, as a result, inferred or concluded that the inappropriate behaviour was sexual in nature. As discussed earlier, the ordinary reasonable reader is taken to be fair-minded and not perverse, morbid nor suspicious of mind or avid for scandal. In those circumstances, the ordinary reasonable reader may have suspected that Mr Rush’s inappropriate behaviour might have been of a sexual nature, but would have been likely to have reserved judgment as to the type of inappropriate conduct allegedly engaged in by Mr Rush until he or she read or learnt more.

122    It follows that I am not persuaded that the poster, in its natural and ordinary meaning, conveyed to the ordinary reasonable reader the imputation that Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre.

123    Nor am I persuaded, on balance, that the poster would have conveyed that imputation to the ordinary reasonable reader in light of the reader’s knowledge of the extrinsic facts relied on by Mr Rush. The reader’s knowledge that other famous actors and movie and television executives had, in very recent times, been portrayed by the media as sexual predators would not necessarily have led the reader to infer or conclude that assertions of inappropriate behaviour engaged in by Mr Rush involved inappropriate behaviour of a sexual nature. The poster did not, either directly or indirectly, portray Mr Rush in such terms, or otherwise connect him to the #MeToo movement and the portrayal of the men exposed by it. While the ordinary reasonable reader may well have suspected that the inappropriate behaviour was of a sexual nature by reason of their knowledge of the extrinsic facts, they would again most likely have reserved their judgment in relation to that issue until they learnt more from reading the article itself.

124    In all the circumstances, I am not positively persuaded that the poster conveyed to the ordinary reasonable reader that Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre.

Mr Rush had committed sexual assault in the theatre

125    I have reached the same conclusion in relation to this alleged imputation for essentially the same reasons. I am not satisfied on the balance of probabilities that the poster conveyed the imputation that Mr Rush had committed sexual assault, either in its natural and ordinary meaning, or by reason of knowledge of the extrinsic facts.

Imputations conveyed by the 30 November 2017 articles

126    Mr Rush claimed that the 30 November 2017 articles conveyed four defamatory imputations, either by the natural and ordinary meaning of the words used in them, or by reason of the words read together with the extrinsic facts.

Mr Rush is a pervert

127    The Telegraph articles published on 30 November 2017 did not, in terms, state that Mr Rush was or is a pervert. Indeed, the content of the articles, putting aside headlines, photographs and other contextual considerations, is essentially limited to the assertion that Mr Rush had been accused of inappropriate behaviour during the STC’s production of King Lear, that the STC had received a complaint alleging that [Mr Rush] had engaged in inappropriate behaviour and that Mr Rush “vigorously denie[d] the allegations” and said that the STC had never told him of any allegations of “wrongdoing”.

128    The factual content of the article, however, must be considered in light of what was, on any view, the striking photograph and headline on the front page, and the main headline to the story on page four. The almost full page photograph on the front page was of Mr Rush wearing a crown or garland of flowers or weeds on his head. His face and hair appear stark and pale white as a result of the application of make-up and his facial expression is one of concern or perhaps even anguish or bewilderment. While it is a head and shoulders photograph, Mr Rush does not appear to be wearing any clothes. The large headline “KING LEER” is emblazoned below the photograph.

129    The combined impact of the photograph and headline is startling, if not, somewhat unsettling. The effect of the pun on the name of the play is to clearly label Mr Rush as someone who leered; who looked at certain people in a sly or lascivious way. When combined with the prominent statement that Mr Rush had denied “inappropriate behaviour” during a Sydney stage show, the clear impression conveyed was that the inappropriate behaviour was sexual in nature; that Mr Rush had acted towards the complainant in a lecherous, lewd or licentious manner.

130    The impact of the photograph and headline also left little room for doubt that what the article was saying was that, despite his denials, Mr Rush had in fact engaged in that conduct. It was not simply saying that a complaint had been made against Mr Rush, but that Mr Rush denied it. The clear impression conveyed, in all the circumstances, was that Mr Rush had actually engaged in the conduct the subject of the complaint.

131    The impression conveyed by the photograph and headline on the front page was amplified by at least two features of the article on pages four and five.

132    The first feature of the article on those pages was the prominent headline: “STAR’S BARD BEHAVIOUR”; a pun referencing the fact that Shakespeare is frequently referred to as “The Bard”. The clear impression from this prominent headline was again that, despite his denial, Mr Rush had in fact engaged in bad behaviour; that he had done what had been alleged. The headline did not say: “star’s alleged bard [bad] behaviour”.

133    The second relevant feature of the article on pages four and five relates to the layout. The article concerning Mr Rush, including various photographs and quotes, was presented inside a box. Also positioned inside that box, unlike the other articles on the page, was a story concerning Don Burke. That story concerned allegations of sexual assault that had been made against Mr Burke that week. The alleged sexual assault or assaults had occurred during the time that Mr Burke was the presenter of a television show, Burke’s Backyard, which was aired on Channel Nine. The victim or victims appeared to be “Nine staff”; persons who worked with or for Mr Burke on Burke’s Backyard. In that context, the article referred to Don Burke being described as, amongst other things, a “sexual predator”. Mr Burke, on the other hand, was recorded as having claimed that he was a victim of a “witch hunt” ignited by the Harvey Weinstein scandal”; an obvious reference to the growing #MeToo movement.

134    The placement of the article concerning Don Burke in the same box as the article concerning Mr Rush suggested that there was some link between the two cases. The obvious link was that Mr Rush’s “inappropriate behaviour” was sexual in nature and was in some way connected to the allegations that had been made against Don Burke, as well as the #MeToo movement and the Harvey Weinstein scandal.

135    In all the circumstances, the overall impression conveyed to the ordinary reasonable reader by the 30 November 2017 Telegraph article, considered as a whole, including the headlines, photographs, layout and context, was that Mr Rush was a pervert.

136    Nationwide and Mr Moran submitted that the imputation that Mr Rush is a pervert “is a tortured meaning”. They contended that a “pervert” is someone who, by contemporary standards, is a “sexual deviant”; for example, a “Peeping Tom” or someone who engages in sexual behaviour that would be regarded as not just offensive, but also disgusting and bizarre. In Nationwide and Mr Moran’s submission, it would strain the ordinary everyday use of language to describe a person who engages in sexual harassment as a pervert.

137    I disagree.

138    It may be true that dictionary definitions of the word “pervert” tend to involve some form of sexual abnormality or deviance. The Macquarie Dictionary (Seventh edition, 2017), for example, defines a pervert as including “someone who practises sexual perversion” and “a person whose sexual behaviour is regarded as deviant and unacceptable” and defines “perversion” as including “unnatural or abnormal condition of the sexual instincts”. Likewise, the Shorter Oxford English Dictionary (Fifth edition, 2002) definition of pervert includes a “perverted person” or “sexually perverted person” and defines “perversion” as including “preference for an abnormal form of sexual activity; sexual deviance”.

139    The difficulty for Nationwide and Mr Moran is that, even accepting those definitions of the word “pervert”, the article as a whole conveyed the impression that Mr Rush was someone who acted in a sexually abnormal or deviant way. That is because it conveyed that he engaged in inappropriate or bad behaviour during STC’s production of King Lear which involved leering, or slyly looking at the complainant in a lecherous, lewd or licentious manner. That is more than just offensive and objectionable. Having regard to Mr Rush’s age and standing, it would also be considered by most ordinary reasonable people as sexually abnormal or deviant. It should also be noted, in this context, that the impression conveyed by the positioning of the article concerning Don Burke suggested that Mr Rush’s inappropriate behaviour was in some way comparable to that of Don Burke, who had been described as a “sexual predator”. That again suggested some form of sexual abnormality or deviancy.

140    In any event, contrary to the submissions advanced by Nationwide and Mr Moran, in 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.

141    Two final points should be made.

142    The first point is that, to the extent that Nationwide and Mr Moran submitted that the bane, the imputation that Mr Rush was a pervert, was somehow negated by the “antidote”, being the repeated statement that Mr Rush had denied the allegation of inappropriate behaviour, that submission is rejected for the reasons effectively already given. While the 30 November 2017 articles must be read as a whole, the ordinary reasonable reader of those articles would in my view have given particular weight to the prominent headline and photograph on the front page. Indeed, the likely effect of the headline “KING LEER” and the striking photograph of Mr Rush was that the ordinary reader’s mind would have been poisoned from the outset. The headline and the photograph clearly implied or imputed guilt. Their effect would have been to entirely undermine, if not swamp, the reports of Mr Rush’s denials. In all the circumstances, the ordinary reasonable reader’s response to Mr Rush’s reported denials was likely to be to the effect of: “well, he would deny the claims, wouldn’t he”. The same could perhaps be said about the effect of the placement of the article concerning Don Burke on page five.

143    The second point concerns the effect of the extrinsic facts.

144    The clear impression conveyed by the articles, that Mr Rush is a pervert, was likely to be amplified or exacerbated in circumstances where the ordinary reasonable reader at the time of the publication would have read the articles in the context of the recent public exposure of the sexual misconduct of Harvey Weinstein, Kevin Spacey, Don Burke and other famous actors and movie and television executives. As discussed earlier, whether the then recent media portrayal of such persons as sexual predators was a matter of general knowledge, or a proven extrinsic fact, is essentially immaterial. Either way, the features of the article which have been highlighted, would, in that context, have more likely conveyed the impression that Mr Rush was simply another famous and powerful figure in the entertainment industry who was guilty of inappropriate behaviour of a sexual nature. He was another sexual predator. That is particularly the case given the juxtaposition of the article concerning Mr Burke, which indirectly referenced the #MeToo movement by referring to the Harvey Weinstein scandal”. The ordinary reasonable reader’s knowledge of the extrinsic facts was likely to intensify or amplify the impression or implication otherwise conveyed by the article that Mr Rush is a pervert.

145    It should be noted in this context that Nationwide and Mr Moran submitted that a publication cannot be said to have conveyed an imputation “merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff: cf. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301. That may readily be accepted. The question whether the relevant imputation was conveyed here is accordingly not to be approached on the basis that the general knowledge of the #MeToo movement likely to have been possessed by the ordinary reasonable reader, or their knowledge of the particular extrinsic facts, would have been likely to excite some general belief or prejudice about sexual harassment in the entertainment industry. Rather, it is to be approached by asking whether the ordinary reasonable reader who possessed that knowledge would conclude, or more readily conclude, that the article was implying or otherwise conveying that Mr Rush is a pervert in light of their possession of such knowledge. For the reasons already given, the answer to that question is “yes”.

146    In any event, for the reasons already given, it is unnecessary to have regard to any general knowledge of the #MeToo movement, or the extrinsic facts. The clear impression conveyed by the articles, even without those considerations, is that Mr Rush is a pervert.

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

147    The same considerations which support the conclusion that the 30 November 2017 articles conveyed that Mr Rush is a pervert also support the conclusion that the article conveyed that Mr Rush had behaved as a sexual predator.

148    The articles again do not expressly or explicitly say that Mr Rush behaved as a sexual predator. That, however, is the clear impression conveyed by the article considered as a whole, particularly having regard to the headlines, the main photograph and the juxtaposition of the article concerning Mr Burke. In relation to the last mentioned feature of the article, it is to be noted that the article concerned specifically referred to Don Burke as someone who had been described as a “sexual predator”.

149    Nationwide and Mr Moran submitted that this imputation is a “strained and forced meaning” and that at its highest the articles convey that a complaint was made that Mr Rush had engaged in inappropriate behaviour towards one person over several months. I do not agree. For the reasons already given I have found that the 30 November 2017 articles, considered as a whole, conveyed that Mr Rush was a pervert. They also conveyed that he had engaged in inappropriate behaviour of a sexual nature while working on the production of King Lear for the reasons given in relation to the next imputation. The implication was that the inappropriate behaviour was directed at someone else who was involved in the production, most likely one of the other actors.

150    The ordinary reasonable reader is likely to consider a man to be a “sexual predator” if that man preys upon another person for sex or sexual gratification, particularly in a workplace setting and particularly if the man is in a position of power or dominance in that workplace. That is effectively how the article portrayed Mr Rush. For all the reasons given earlier in the context of the imputation that Mr Rush is a pervert, the headlines, the main photograph and the positioning of the article concerning Mr Burke conveyed the overall impression that Mr Rush had engaged in inappropriate behaviour which involved, at least, leering, or slyly looking at someone he worked with in the production of King Lear in a lecherous, lewd or licentious manner. It therefore also conveyed that Mr Rush had behaved as a sexual predator; that he had preyed upon one of his colleagues for his sexual gratification. The placement and juxtaposition of the story concerning Don Burke on page five, which referred to the fact that Mr Burke had been described as a “sexual predator” by those who had worked with him, effectively completed the picture.

151    As was the case with the imputation that Mr Rush was a pervert, the imputation that Mr Rush had behaved as a sexual predator would only have been amplified or intensified by the ordinary reasonable reader’s knowledge of the extrinsic facts. Knowledge of those facts, whether as matters of notoriety and general knowledge, or as proven extrinsic facts, would have been likely to cause the ordinary reasonable reader to more readily read the articles, considered as a whole, as implying or imputing that Mr Rush was a sexual predator much like Don Burke and the many famous actors and television and film executives who had been exposed as part of the #MeToo movement.

152    Finally, for the same reasons as those given earlier in the context of the imputation that Mr Rush was a pervert, the imputation that Mr Rush had behaved as a sexual predator was not negated by the statements in the article that Mr Rush had denied the allegations and the complaint. The ordinary reasonable reader would have given the reporting of those denials little, if any, weight in the face of the striking photograph and headline on the front page, the headline on page four, and the positioning of the article concerning Mr Burke within the box on page five.

153    I am, in all the circumstances, persuaded that the 30 November 2017 Telegraph articles conveyed the imputation that Mr Rush behaved as a sexual predator while working on the STC’s production of King Lear.

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

154    Not much more need be said concerning this imputation.

155    The 30 November 2017 articles clearly conveyed, in terms, that it had been alleged that Mr Rush had engaged in “inappropriate behaviour”. For the reasons already given, the headline and photograph on the front page alone conveyed the clear impression that the inappropriate behaviour was of a sexual nature. Mr Rush was portrayed or pilloried as “King Leer”: a man who had acted in a lecherous, lewd or licentious manner during the STC’s production of King Lear. The headline on page four left little doubt that Mr Rush had engaged in “bard [bad] behaviour”. The overall impression was that the bad behaviour was sexual in nature.

156    The only submission advanced by Nationwide and Mr Moran in relation to this imputation was that the articles contained many denials by or on behalf of Mr Rush. In their submission, the article simply conveyed that a complaint had been made against Mr Rush and that Mr Rush had strenuously denied that complaint.

157    That submission has no merit for the reasons already given. The combined effect of the headline and photograph on the front page and the headline on page four was to undermine and overwhelm the references to Mr Rush denying the allegation or complaint. The overall impression conveyed was that Mr Rush was, to use the vernacular, guilty as charged.

158    Considered as a whole, the 30 November 2017 articles clearly conveyed to the ordinary reasonable reader that Mr Rush had engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear.

159    It is, in these circumstances, strictly unnecessary to address Mr Rush’s case based on the extrinsic facts. I should nevertheless make it plain that, once it is accepted that the ordinary reasonable reader was aware of the extrinsic facts, either as matters of notoriety or proven extrinsic facts, it is even more likely that the reader would conclude that the articles were implying or imputing that Mr Rush had in fact engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear.

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

160    The same conclusion follows in relation to the fourth and final imputation said to have been conveyed by the 30 November 2017 articles.

161    For the reasons already given in the context of the first three imputations, the 30 November 2017 articles clearly conveyed that Mr Rush, a famous actor, had engaged in inappropriate behaviour against another person over several months while working on the STC’s production of King Lear. While the text of the article stated only that an allegation had been made that Mr Rush had engaged in such conduct, and that Mr Rush had denied that allegation, the overall impression conveyed by the articles was that, despite his denials, Mr Rush had in fact engaged in the alleged inappropriate behaviour. The combined impact of the headline and photograph on the front page, together with the headline on page four, would, so far as the ordinary reasonable reader was concerned, have been to overwhelm the references to the complaint, allegation and denial. The articles also stated that the STC was continuing “to work with the complainant to minimise the risk of future instances of the alleged behaviour occurring in its workplace”. Read in context, that statement would clearly have conveyed to the ordinary reasonable reader that, so far as the STC was concerned, the behaviour had in fact been engaged in. The overall impression conveyed was that there was no question that Mr Rush had engaged in the conduct as alleged.

Imputations conveyed by the 1 December 2017 articles

162    Mr Rush claimed that the articles published in the Telegraph on 1 December 2017 conveyed seven imputations, either by the natural and ordinary meaning of the words used, or by reason of the words read together with the extrinsic facts. Some of the alleged imputations are the same, or similar to, those that have been found to have been conveyed by the 30 November 2017 articles.

163    The 1 December 2017 articles added a number of significant new factual elements to the story published in the Telegraph the previous day.

164    First, it reported that the accusation levelled against Mr Rush was that he had inappropriately touched the complainant during the stage production of King Lear. The allegation had previously been said to have involved only inappropriate behaviour. There had been no reference to inappropriate touching in the articles published on 30 November 2017.

165    Second, while the complainant’s name was not revealed, it was revealed that the complainant was an actress and was therefore female.

166    Third, the articles reported that two STC actors had publicly supported the actress or her claims. One of them, Mr Wyatt, was reported to have posted on Facebook that he believed the actress. The other, Mr McClelland, was reported as having “posted” or “tweeted” on Twitter, somewhat cryptically, that “[i]t wasn’t a misunderstanding. It wasn’t a joke”. Read in the context of the article, the “it” appeared to be the complaint or the allegation against Mr Rush.

167    Fourth, it was reported that two unnamed sources had told the Telegraph or Mr Moran that Mr Rush had been made aware of who made the claims in a conversation with the executive director of the STC three weeks prior to the article, that they “believed the woman’s claims” and that the STC would not be working with [Mr] Rush again. STC executives were also said to have come forward in support of the complainant. The executives were reported as having said that they “wholeheartedly believe her claims” and confirmed that, “due to the seriousness of the allegations”, the STC would not work with Mr Rush again.

168    Fifth, it was reported that the STC had revised its “HR” [Human Resources] policies to ensure a “safe environment for staff” and that this was an issue to address “in the wake of the Harvey Weinstein scandal”. Reference was also made to complaints which had been made against Mr Spacey which were part of the ongoing controversy rocking the entertainment industry”, a plain reference to the #MeToo movement. The article also reported, in that context, that an Actors Equity survey of theatre actors had found that 40 per cent of “respondents” to the survey had “directly experienced sexual harassment, bullying or misconduct”.

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

169    As has just been noted, the new elements introduced by the 1 December 2017 articles included that the complainant was an actress, that the complaint involved Mr Rush inappropriately touching the actress and that the allegation was sufficiently serious that the STC would never work with Mr Rush again and had revised its human resources policies. The allegations against Mr Rush were also again linked to the #MeToo movement by reason of the reference to the “Harvey Weinstein scandal” - the “ongoing controversy rocking the entertainment industry” - and the allegations that had been made against Mr Spacey.

170    Even putting to one side that the articles which appeared on 1 December 2017 were clearly a follow-up to the previous day’s “KING LEER” article and all that it conveyed, the overall impression conveyed by the 1 December 2017 articles was that the allegation against Mr Rush was that he had inappropriately touched an actress during the stage production in a way which was both sexual and sufficiently serious to warrant the STC resolving never to work with Mr Rush again and to review its human resources policies to ensure a “safe environment” for its staff. The ordinary reasonable reader would have taken that to amount to an imputation that Mr Rush had committed sexual assault while working on the STC’s production of King Lear.

171    Nationwide and Mr Moran effectively conceded that the 1 December 2017 articles conveyed that the allegations against Mr Rush were sexual in nature, or involved sexual impropriety. They submitted, however, that this would not have led the ordinary reasonable reader to conclude that the touching amounted to sexual assault. They also submitted that the articles conveyed only that Mr Rush was alleged to have inappropriately touched the actress, not that he had in fact done so. They pointed, in that context, to the fact that the articles reproduced Mr Rush’s vehement denial, both directly and through his lawyers, that he had engaged in any such conduct.

172    I reject both those submissions.

173    The ordinary reasonable reader is not taken to be a lawyer and would therefore not necessarily be aware, in precise terms, of what conduct constituted sexual assault in the legal sense, or what conduct constituted an offence of sexual assault. The ordinary reasonable reader would, however, be likely to understand or believe that a man who had inappropriately touched another person in a serious and sexually inappropriate manner had committed sexual assault in a more general sense. The overall impression conveyed by the articles was that Mr Rush had engaged in such conduct.

174    As for the submission that the articles reported only that it was alleged or claimed that Mr Rush had engaged in such conduct and that he vehemently denied that allegation or claim, the difficulty for Nationwide and Mr Moran is that a number of features of the articles completely undermine Mr Rush’s denials and completely overwhelm the fact that the articles purport to report only that a complaint or allegation had been made. Those features include the following.

175    First, the overwhelming tenor of the articles, or most of them, was that, despite Mr Rush’s denial, the actress’s accusations had been backed by the “Theatre cast” and STC “executives”. The prominent front page headline was “WE’RE WITH YOU” and “Theatre cast back accuser as Rush denies ‘touching’”. A prominent photo of Mr Wyatt appeared alongside a statement attributed to him: “I was in the show. I believe (her)”. Thus, Mr Rush’s reported denial was immediately preceded and undermined by the assertion that the cast had backed the actress’s version of events. Mr Rush was on his own.

176    Second, the major headline above the main article on pages four and five was “ACTS OF DEFIANCE”. The smaller headline was “Sydney Theatre Company actors support complainant’s claims against megastar Rush”. The article itself repeated the assertion that Mr Wyatt “believed his castmate’s version of events” and that, Mr McClelland had supposedly similarly “urged others on Twitter to believe the actress” because “[i]t [the allegation] wasn’t a misunderstanding” and “[i]t wasn’t a joke”. The impression conveyed was that those actors knew the details of the allegation and had effectively confirmed that the inappropriate touching had in fact occurred.

177    The articles also referred to two other unnamed sources who had said that they believed the actress’s claims. They also referred to the fact that the STC had issued a statement saying that it had responded “truthfully when approached by the Telegraph. It was also asserted that the STC had resolved never to work with Mr Rush again. That implied that, the STC not only believed the actress, but having considered the matter, had accepted her version of events. separate and smaller article also reported that STC executives “wholeheartedly” believed the actress’s claims.

178    In this context, the ordinary reasonable reader would have taken the major headline to have meant that Mr Rush’s denials were “defiant” because they were made in the face of the fact that pretty much everyone else supported the actress and believed or accepted her claims. In this way, Mr Rush’s denials were completely undermined and were portrayed as being somewhat unreasonable or ridiculous, if not, disingenuous. They were certainly overwhelmed by the overall impression that, whatever Mr Rush may have said, the actress should be believed.

179    In all the circumstances, I am positively persuaded that the 1 December 2017 articles conveyed to the ordinary reasonable reader the imputation that Mr Rush had committed sexual assault while working on the STC’s production of King Lear.

180    It is, in the circumstances, unnecessary to consider in any detail Mr Rush’s alternative case based on the extrinsic facts. It is sufficient to note again that Mr Rush’s case that this imputation was conveyed is even stronger in light of the extrinsic facts for the reasons given earlier.

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

181    For the reasons given earlier, this imputation was conveyed by the 30 November 2017 articles. It was also conveyed by the 1 December 2017 articles for essentially the same reasons.

182    As was noted earlier in the context of the 30 November 2017 articles, the ordinary reasonable reader would be likely to consider that a man who preys upon another person in the workplace for sexual gratification is a “sexual predator”, particularly if the man is in a position of power or dominance in that workplace. That is effectively how the 1 December 2017 articles portrayed Mr Rush and the conduct that he was said to have engaged in.

183    As has already been noted, the overall impression conveyed by the 1 December 2017 articles was that Mr Rush had inappropriately touched an actress during the production of King Lear in a way which was both sexual and sufficiently serious to warrant the STC resolving never to work with Mr Rush again and to review its human resources policies to ensure a “safe environment” for its staff. The ordinary reasonable reader would have taken this to mean that Mr Rush behaved as a sexual predator; he used his position or stature to prey upon a fellow actor for his own sexual gratification. Why else would the STC have resolved never to work with Mr Rush again? Why else would it have been necessary for the STC to resolve its policies to ensure a safe environment for its staff? As one of the articles quoted an STC executive to have said: “[t]hat question doesn’t even need an answer”.

184    Nationwide and Mr Moran conceded that the 1 December 2017 articles conveyed that it was alleged that Mr Rush had engaged in sexual misconduct in the workplace. They submitted, however, that this was a “non-specific” allegation and that sexual misconduct in the workplace does not amount to sexual predation. They also submitted that there was nothing in the article to suggest that Mr Rush had used his power, influence or authority when engaging in the alleged sexual misconduct.

185    I do not agree.

186    While it may perhaps be accepted that not all sexual misconduct in the workplace constitutes sexual predation, the published details of Mr Rush’s alleged sexual misconduct during the production of King Lear were sufficient to suggest sexual predation. The allegation was not entirely non-specific. The allegation was that Mr Rush inappropriately touched an actress during the production in a way which was both sexual and serious; sufficiently serious, according to the articles, to cause the STC to resolve never to work with Mr Rush again and to change its human resources policies so as to protect the health and welfare of its actors and employees. The implication was that the STC had to change its human resources policies to protect its staff against sexual predators in light of Mr Rush’s actions.

187    The articles also make it tolerably clear that Mr Rush’s actions involved a power imbalance. The ordinary reasonable reader may be taken to know that Mr Rush is one of Australia’s most lauded and prominent actors. Even if that could not be said to be a matter of general knowledge, the articles repeatedly refer to Mr Rush as an “Oscar-winner, as “one of Australia’s biggest stars”, as “one of the country’s most successful actors” and describe him as a “megastar”. It is difficult to imagine that the ordinary reasonable reader would not have appreciated that the complainant actress was unlikely to have had the same stature or authority in the production as Mr Rush.

188    Nationwide and Mr Moran again relied on the fact that the articles referred only to an allegation or complaint and included multiple references to Mr Rush’s vehement denials of the allegation. For the reasons already given, however, the overall impression conveyed by the articles was that Mr Rush had in fact engaged in the alleged conduct despite his denials.

189    In all the circumstances, I am positively persuaded that the 1 December 2017 articles conveyed to the ordinary reasonable reader the imputation that Mr Rush behaved as a sexual predator while working on the STC’s production of King Lear.

190    In light of this finding, it is again unnecessary to consider Mr Rush’s alternative case based on the extrinsic facts. Suffice it to say that the case that this imputation was conveyed is even stronger in light of the extrinsic facts.

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

191    It is unnecessary to say anything further concerning this imputation. For the reasons already given, the 1 December 2017 articles conveyed to the ordinary reasonable reader that Mr Rush had committed sexual assault and had behaved as a sexual predator while working on the STC’s production of King Lear. If the articles conveyed those imputations, it is self-evident they also conveyed that Mr Rush had engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear. Both sexual assault and sexual predation constitute inappropriate behaviour of a sexual nature.

192    The only submission advanced by Nationwide and Mr Moran in relation to this imputation was that the articles conveyed nothing more than “claim and counter-claim”; meaning that it referred only to an allegation which had been denied by Mr Rush. That submission is rejected for the reasons given in relation to the imputations concerning sexual assault and sexual predation.

193    I find that the 1 December 2017 articles conveyed to the ordinary reasonable reader the imputation that Mr Rush engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear.

Mr Rush, an acting legend, had inappropriately touched an actress while working on the STC’s production of King Lear

194    The same can be said about this imputation. The 1 December 2017 articles expressly stated that it had been alleged that Mr Rush had inappropriately touched an actress while working on the STC’s production of King Lear. The only issue is whether the articles went further and conveyed to the ordinary reasonable reader that, despite his denials, Mr Rush had in fact engaged in that conduct. For the reasons already given in the context of the other imputations, that issue is resolved in favour of Mr Rush. The overall impression conveyed by the articles was that Mr Rush had in fact engaged in such conduct.

Mr Rush is a pervert

195    I have already concluded that the 30 November 2017 articles conveyed the imputation that Mr Rush is a pervert. So too did the 1 December 2017 articles.

196    As has already been explained, the 1 December 2017 articles conveyed to the ordinary reasonable reader that Mr Rush had committed sexual assault, had behaved as a sexual predator, had engaged in inappropriate behaviour of a sexual nature and had inappropriately touched an actress while working on the STC’s production of King Lear. The ordinary reasonable reader was likely to consider that a person who engaged in such conduct was a pervert.

197    For the reasons given in the context of the 30 November 2017 articles, I doubt that the ordinary reasonable reader would give the word “pervert” the narrow meaning suggested by Nationwide and Mr Moran: that a person is only a pervert if they are a sexual deviant, or they engage in sexual conduct which is bizarre, unnatural or abnormal. Rather, the ordinary reasonable reader is likely to consider that a person who acts in a lecherous, lewd or licentious manner towards another person might rightly be considered to be a pervert.

198    Perhaps more pertinently, the ordinary reasonable reader is in any event likely to consider that a man who inappropriately touches another person, man or woman, in a way that is both sexual and serious, could rightly be regarded as a pervert, particularly if that conduct occurred in a workplace setting, and particularly where the man was in a position of authority or stature in that workplace. Would not most right thinking people believe that a man who uses his authority or stature in the workplace to obtain sexual gratification by inappropriately touching a non-consenting co-worker is a person who engages in abnormal sexual conduct? It is doubtful that too many people would quibble with the media portrayal of Harvey Weinstein as a pervert.

199    That is effectively how Mr Rush is portrayed in the 1 December 2017 articles.

200    Even if the word “pervert” was to be given the narrow meaning suggested by Nationwide and Mr Moran, the 1 December 2017 articles nevertheless conveyed that Mr Rush was a pervert in that sense. The ordinary reasonable reader would be likely to consider that a senior male 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.

201    In all the circumstances, I am satisfied that the 1 December 2017 articles conveyed to the ordinary reasonable reader that Mr Rush is a pervert.

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

202    Nationwide and Mr Moran conceded that the 1 December 2017 articles conveyed that the STC had decided never to work with Mr Rush again due to the seriousness of the allegations. In their submission, the articles did not convey, as Mr Rush alleged, that his conduct in inappropriately touching the actress was so serious that the STC would not work with him again.

203    The distinction relied on by Nationwide and Mr Moran is a fine and nuanced one. I am not persuaded that it is a distinction that the ordinary reasonable reader, who is taken to be a person who is prone to a degree of loose-thinking and who is not likely to closely parse and analyse the language used, would have been likely to appreciate or be concerned about.

204    In support of this distinction, Nationwide and Mr Moran relied on the fact that the relevant parts of the articles referred to the seriousness of the allegations as being the reasons for the STC’s decision, as opposed to the seriousness of the conduct. For the reasons already given, while the articles employed the language of allegation or complaint, the overall impression conveyed was that Mr Rush had in fact engaged in the relevant conduct. That conduct was inappropriately touching the actress. In those circumstances, the ordinary reasonable reader was likely to have understood that what the article was saying was that the STC had decided not to work with Mr Rush because of the seriousness of Mr Rush’s conduct.

205    The impression conveyed by the articles was that the STC had decided not to work with Mr Rush not only because of the seriousness of the claims or allegations, but because the STC believed the actress’s claims or allegations. The statement that the STC had said that it would not work with Mr Rush again was made three times. On each occasion, the statement was immediately preceded by the statement that the unnamed “sources” or STC “executives” “stood by” the actress’s claims, or believed, or “wholeheartedly believe[d]” the actress. One of the unnamed STC executives was reported to have said: “[a]nother actor backed what she said … we’ve taken this very seriously”. Thus, the articles effectively represented that the STC had made the decision because it accepted the actress’s version of events.

206    Equally, the articles conveyed that the STC had decided not to work with Mr Rush again because of the seriousness of the conduct. The STC executives were reported as having said “[t]here is no chance” and “[h]ow could we work with him again? That question doesn’t even need an answer”. The effect or impact of those statements was two-fold. First, they conveyed that the STC had accepted that the conduct had occurred. Second, they conveyed that the STC considered that the conduct was so serious that it could not possibly work with Mr Rush again. Thus, they were statements not only about STC’s reasons for not working with Mr Rush again, but also statements about the seriousness of the conduct.

207    In all the circumstances, I am positively persuaded that the 1 December 2017 articles conveyed the imputation 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.

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

208    The 1 December 2017 articles clearly reproduce the statement issued by Mr Rush and his lawyer to the effect that he had not been provided with any details of the claims or allegations made by the actress, and had not even been told who had made the complaint. On two occasions, however, it was said that the STC had in fact told Mr Rush the name of the complainant. Did that imply that Mr Rush had “falsely denied” that the STC had told him the identity of the complainant?

209    Nationwide and Mr Moran submitted that the answer to that question was “no”. That was because, in their submission, the articles did not convey that the STC had told Mr Rush the name of the complainant. Rather, they simply stated that it was alleged that the STC had told Mr Rush the name of the complainant.

210    That submission is rejected.

211    The clearest and most prominent statement on this topic is in the front page article. There it is stated:

Two STC sources said the company stood by her [the actress’s] 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”.

(Emphasis added.)

212    It can be observed that the statement that Mr Rush had been told who made the claims is put in emphatic and unqualified terms. The statement is not in this instance attributed to the two unnamed STC sources. Indeed, read in the context of what follows, it would appear that Mr McIntyre, the Executive Director of the STC, was the source of the statement. The two sources appear to have said only that they believed the actress’s claims and that the STC would not work with Mr Rush again. In any event, it is not said that the STC claimed, or alleged, that it had told Mr Rush. It is simply said that, despite his denials, “Rush was told”.

213    It is true that, in the article on page five, it is said that two sources had said that Mr Rush was made aware of who made the claims in a conversation with Mr McIntyre. But even there, the statement is not one of mere counter-claim or allegation.

214    Read in the context of the 1 December 2017 articles as a whole, the statement on the front page that Mr Rush had been told the name of the complainant conveys the clear impression that Mr Rush’s denial was false. That is particularly apparent from the use of the words “[d]espite denials” which precede the statement, and the emphatic nature of the statement that Mr Rush “was told”. It also flows from the overwhelming emphasis and impression conveyed by the articles, which, as discussed earlier, portrayed Mr Rush’s denials as “acts of defiance” in the face of overwhelming support for the actress and her version of events.

215    On balance, I am persuaded that, considered as a whole, the 1 December 2017 articles conveyed the imputation that Mr Rush had falsely denied that the STC had told him the identity of the person who had made a complaint against him.

Summary of findings in relation to the alleged imputations

216    I have made the following findings.

217    The poster conveyed the imputation that Mr Rush had engaged in scandalously inappropriate behaviour in the theatre. I am not, however, satisfied that it conveyed the imputation that Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre, or that he had committed sexual assault in the theatre.

218    The 30 November 2017 articles conveyed the following imputations: first, that Mr Rush is a pervert; second, that Mr Rush behaved as a sexual predator while working on the STC’s production of King Lear; third, that Mr Rush engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear; and fourth, 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.

219    The 1 December 2017 articles conveyed the following imputations: first, Mr Rush had committed sexual assault while working on the STC’s production of King Lear; second, Mr Rush behaved as a sexual predator while working on the STC’s production of King Lear; third, Mr Rush engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear; fourth, Mr Rush had inappropriately touched an actress while working on the STC’s production of King Lear; fifth, Mr Rush is a pervert; sixth, 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 seventh, Mr Rush had falsely denied that the STC had told him the identity of the person who had made a complaint against him.

ISSUE TWO: WERE THE IMPUTATIONS SUBSTANTIALLY TRUE?

220    Having found that all but two of the alleged imputations were conveyed by the matters complained of, it is necessary to consider and determine the defence of justification pleaded by Nationwide and Mr Moran in respect of those imputations which had been conveyed.

Relevant provisions and principles

221    Section 25 of the Defamation Act provides as follows:

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

222    Section 4 of the Defamation Act provides that “substantially true” means true in substance or not materially different from the truth.

223    The test for determining whether an imputation is substantially true is well established. In Howden v Truth & Sportsman Ltd (1937) 58 CLR 416, Dixon J stated (at 420-421):

The defence depends upon the substantial truth of the defamatory meaning conveyed by a libel. Every material part of the imputations upon the plaintiff contained in the words complained of must be true; otherwise the justification fails as an answer to the action.

224    This was applied in the statutory context in Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [274] and Cross v Queensland Newspapers Pty Limited [2008] NSWCA 80 at [71]. In Popovic, it was said (at [274]) that to make out the defence, the publisher must not only prove the truth of the words complained of in their literal meaning but also the truth of the defamatory sting”. The “defamatory sting” is the meaning or meanings found to have been conveyed by the publication.

225    Nationwide and Mr Moran contend that all but two of the imputations or defamatory stings that have been found to have been conveyed were substantially true. The two that they did not ultimately seek to justify were: 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 [imputation 10(f)]; and that Mr Rush had falsely denied that the STC had told him the identity of the person who made a complaint against him [imputation 10(g)]. Both those imputations were conveyed by the 1 December 2017 articles.

226    Nationwide and Mr Moran bear the onus of proving that the balance of the imputations conveyed by the matters complained of were substantially true. The standard of proof is the balance of probabilities, even where the matter to be proved involves criminal conduct or fraud: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992)110 ALR 449 at 449-450. In Neat, however, the majority (Mason CJ, Brennan, Deane and Gaudron JJ) went on to say as follows (at 450):

On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

(Footnotes omitted.)

227    Their Honours then referred to the following well-known observations of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 362):

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …

228    Those observations are now reflected in s 140 of the Evidence Act 1995 (Cth), which provides that in deciding whether it is satisfied that the case of a party has been proved on the balance of probabilities, the Court may take into account the nature of the cause of action or defence, the nature of the subject-matter of the proceeding and the gravity of the matters alleged.

229    There could be little doubt that the allegations that Nationwide and Mr Moran levelled against Mr Rush in their truth defence are grave allegations. That is a factor which must be borne in mind when considering whether Nationwide and Mr Moran have discharged the onus of proving, on the balance of probabilities, that the imputations were substantially true.

The particulars of truth pleaded by Nationwide and Mr Moran

230    The defence of justification ultimately pleaded by Nationwide and Mr Moran is almost entirely based on allegations concerning Mr Rush’s conduct and behaviour during the production of King Lear, including the rehearsals. They also rely on a text message that Mr Rush sent to Ms Norvill some months after the end of the production. The allegations as particularised related entirely to Mr Rush’s behaviour towards Ms Norvill. Nationwide and Mr Moran contended that the allegations, if made out, would prove the substantial truth of the imputations pleaded by Mr Rush, other than the two imputations referred to earlier: imputations 10(f) and 10(g).

231    The particulars of truth that have been pleaded by Nationwide and Mr Moran involve, broadly speaking, eight key allegations.

232    The first key allegation is that, on one occasion when Mr Rush and Ms Norvill were rehearsing the final scene of the play, in which Cordelia is dead and King Lear is grieving over her dead body, Ms Norvill saw Mr Rush “hovering his hands over her torso and pretending to caress or stroke her upper torso” and then make “groping gestures in the air with two cupped hands, which gestures were intended to simulate and did in fact simulate him groping and fondling [Ms Norvill’s] breasts”. This incident was said to have occurred in front of other members of the cast and perhaps crew.

233    The second key allegation is that, during the rehearsal period, Mr Rush “regularly made comments or jokes about [Ms Norvill] or her body which contained sexual innuendo. That conduct was also said to have often occurred in the presence of members of the cast and crew.

234    The third allegation again related to Mr Rush’s conduct during the rehearsal period. It is alleged that Mr Rush would “regularly (every few days) make lewd gestures in [Ms Norvill’s] direction” and that “[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”.

235    The fourth allegation is that, during an interview with a journalist, Mr Rush described having a “stage-door Johnny crush” on Ms Norvill.

236    The fifth allegation is, on one view at least, perhaps the most serious allegation. It is alleged that, during a preview performance of the play, Mr Rush departed from the way that the last scene had previously been performed in that he “did not touch [Ms Norvill’s] hand and face as had been repeatedly rehearsed but rather [he] moved his hand so that it traced down [Ms Norvill’s] torso and across the side of her right breast”. The following day, the director of the play, Mr Armfield, allegedly gave Mr Rush an oral “note”, apparently in the presence of other cast members, in which he said that Mr Rush should make his performance in the last scene more “paternal” as it was becoming “creepy and unclear”. 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.

237    The sixth allegation concerned an incident which was said to have occurred during a performance which occurred at some time between 14 and 26 December 2015. The final scene of the play involved Mr Rush carrying Ms Norvill onto the stage in his arms. Immediately before that occurred, Ms Norvill stood on a chair backstage in the prompt side wings so as to facilitate Mr Rush lifting her into his arms before carrying her onto the stage. It is alleged that in a performance during this period, before lifting Ms Norvill from the chair, Mr Rush placed his hand on Ms Norvill’s lower back over her shirt. He then moved his hand under her shirt and along the waistline of Ms Norvill’s jeans, brushing across the skin of her lower back. The movement is alleged to have been light in pressure, slow and deliberate, and to have lasted for about 20 to 30 seconds.

238    The seventh allegation again concerned an incident that occurred immediately prior to Mr Rush lifting Ms Norvill from the chair before carrying her on stage for the final scene. The incident is said to have occurred during a performance in the period 4 to 9 January 2016. On this occasion, Mr Rush is alleged to have started to touch Ms Norvill’s lower back on top of her shirt. He then gently rubbed his fingers over Ms Norvill’s lower back from right to left.

239    The eighth allegation is that 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”.

240    Nationwide and Mr Moran claimed that Mr Rush’s actions as alleged were intentional and constituted scandalously inappropriate conduct in a workplace. They contended that Ms Norvill made a complaint to the STC in or about April 2016 and that, following the complaint, the STC decided that it would never work with Mr Rush again.

241    Nationwide and Mr Moran did not seek to amend those particulars. Late in the trial, they applied to amend their defence to include additional particulars which involved entirely new allegations by someone other than Ms Norvill about events that occurred at a different time and in a different context. That application was refused: Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851.

Uncontroversial background facts

242    Before considering the evidence that was adduced by the parties in relation to the alleged incidents or events that provide the basis of Nationwide and Mr Moran’s truth defence, it would be useful to set the scene, as it were, by identifying some mostly uncontentious or uncontroversial background facts and providing a broad chronology of the important events. Some of the events referred to in the chronology were the subject of contentious evidence which will be referred to in more detail later in the context of the alleged incidents.

Mr Rush

243    Mr Rush was born in 1951 in Toowoomba, Queensland and grew up in Brisbane. He completed Year 12 in 1968. He then attended the University of Queensland and completed a Bachelor of Arts degree in 1971. He started acting seriously while at university and took part in many productions. His wife, Ms Jane Menelaus, is a theatre and film actress. Mr Rush and Ms Menelaus were married in 1988 and they have two (now adult) children.

244    Mr Rush’s background in film, television and theatre is extensive. It hardly needs repeating here. He has 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 in The King’s Speech (2010). He has also won three British Academy Film Awards, two Golden Globe Awards, four Screen Actors Guild Awards, and three AFI 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 promoting of, the Australian Arts Industry. He was and is renowned worldwide as a talented actor and contributor to the arts.

Ms Norvill

245    Ms Norvill is an accomplished actor. At the time of the trial she was 34 years old. She graduated from the Victorian College of the Arts with a Bachelor of Fine Arts (Theatre) in 2006 and has since performed in various major theatre productions throughout Australia and won several awards. At the time she performed in King Lear, she was a highly regarded and respected theatre actor. Ms Norvill had also acted in some film and television productions.

Pre-King Lear contact between Mr Rush and Ms Norvill

246    Mr Rush did not recall precisely when he met Ms Norvill, though he recalled seeing her in about February 2008 when she was performing in a Chekhov play called Platonov: Recut in Melbourne. Mr Rush attended a performance of that play along with Mr Armfield.

247    After February 2008, Ms Norvill and Mr Rush saw each other from time to time and communicated with each other via various messaging services. Mr Rush saw Ms Norvill playing Ophelia in Hamlet at the Melbourne Theatre Company (MTC) in 2011 or 2012, and later playing Roxanne in Cyrano de Bergerac. Later still, Mr Rush saw Ms Norvill perform in a production of The Government Inspector. He subsequently discovered that, like him, Ms Norvill had studied with Mr Philippe Gaulier.

248    In about early June 2014, Ms Norvill asked Mr Rush to provide her with a reference. He had been asked by others to provide similar references many times in the past and happily did so for Ms Norvill. The reference he provided was extremely positive. Ms Norvill expressed gratitude for it.

249    Mr Rush recalled being invited to and attending Ms Norvill’s birthday party in 2014.

250    It would appear that Mr Rush and Ms Norvill got on well and were on familiar terms. That is reflected in the nature of the text messages they exchanged during 2014. Those texts are playful, humorous and somewhat cryptic in content. They employ homophones for their respective names. More will be said about those text messages later.

King Lear

251    Mr Rush and Mr Armfield discussed doing a production of King Lear as early as 2009. It was not until 2014, however, that concrete steps were taken in that regard. In 2014, Mr Rush was approached by the then artistic director of the STC, Mr Andrew Upton. Mr Upton told Mr Rush that he wanted the STC to do a production of King Lear with Mr Rush and Mr Armfield. Mr Rush and Mr Armfield then did a “read through” of the play at Mr Armfield’s house and started to approach others.

252    Promotional photographs for the production were taken in mid-2014 and a brochure for the STC’s 2015 season, which included King Lear, was released in the second half of 2014. In March 2015, Mr Rush signed a “deal memo” and, in October 2015, he signed a contract with the STC in relation to him playing the part of King Lear in the production.

253    Mr Rush began preparing for playing the role of King Lear in early 2015. That preparation included reading through the script with the key “creative team” and then learning the script. That took many months. During that period, Mr Rush was involved in the shooting of the film, Pirates of the Caribbean, in Queensland.

Cast and crew

254    The STC’s production of King Lear employed 14 actors. Those actors were cast during 2015.

255    As has already been noted, the play was directed by the well-known and celebrated Australian theatre director Mr Neil Armfield. Mr Armfield was a close colleague and friend of Mr Rush

256    Mr Rush played the lead role as King Lear.

257    The role of Cordelia, one of King Lear’s three daughters, was played by Ms Norvill. Ms Norvill was cast in that role by Mr Armfield in June 2015 after a number of other names had been discussed. Mr Armfield sought and obtained the views of a number of people before selecting Ms Norvill.

258    Ms Norvill was called as a witness by Nationwide and Mr Moran. It would be fair to say that she was the key witness in Nationwide and Mr Moran’s truth defence.

259    The role of Goneril, the eldest of King Lear’s daughters, was played by Ms Helen Buday. Ms Buday is a well-known Australian actor, having played, perhaps most notably, the role of Savannah Nix in the film, Mad Max Beyond Thunderdome. She has appeared in over 40 theatre productions, 15 of which were STC productions. Ms Buday was called as a witness by Mr Rush.

260    The role of Regan, another of King Lear’s daughters, was played by Ms Helen Thomson.

261    The role of the “Fool” was played by the celebrated Australian actor, Ms Robyn Nevin AM, who has had a career in the entertainment industry for almost 60 years. In that time she has appeared in a substantial number of theatre productions, as well as on television and in films. As has already been noted, Ms Nevin was called as a witness by Mr Rush.

262    The well-known Australian actor Mr Max Cullen played the role of the Earl of Gloucester. The Duke of Albany was played by Mr Alan Dukes, the Duke of Burgundy was played by Mr Nick Masters, the Duke of Cornwall was played by Mr Colin Moody and the Earl of Kent was played by Mr Jacek Koman. None of those actors was called to give evidence in this proceeding.

263    The role of Edgar, the Earl of Gloucester’s legitimate son, was played by Mr Mark Leonard Winter. Mr Winter was a called as a witness by Nationwide and Mr Moran.

264    The role of Edmund, the main antagonist in the play and illegitimate son of the Earl of Gloucester, was played by Mr Wyatt. It will be recalled that Mr Wyatt featured prominently in the Telegraph articles of 1 December 2017. The impression given by those articles was that, having been in the “show”, he was in some position to support the, at that time unnamed, actress who had made the complaint. He was not called as a witness.

265    The role of Oswald was played by Mr Wade Briggs. Mr Eugene Gilfedder played the Knight and messenger. There were two musicians in the cast. They were played by Mr Simon Barker and Mr Phillip Slater. None of those performers was called as a witness.

266    Aside from the cast there were, of course, a large number of other people involved in the production. As has already been noted, Mr Armfield was the director. It is worth mentioning some of the other key members of the production and technical teams, if only because it might reasonably be expected that some of them would or might have been witness to some of the alleged incidents which provided the basis for Nationwide and Mr Moran’s truth defence. The assistant director was Mr Lucas Jervies. The production manager was Mr Chris Mercer. The stage manager was Ms Georgia Gilbert. Ms Gilbert was assisted by a deputy and two assistant stage managers; Mr Todd Eichorn, Ms Roxzan Bowes and Ms Katie Hankin respectively. There were also set, lighting and costume and sound designers, composers, a voice and text coach, wardrobe, wig and make-up staff, mechanists, an electrician, and sound and microphone operators.

267    In all, about 45 people were directly involved in some way or another in the production. There may have been more, including administrative staff. No member of the production or technical team was called as witnesses in the proceeding.

Rehearsals

268    Rehearsals began on 12 October 2015. They concluded on 21 November 2015.

269    The final scene, Act V Scene III, was first rehearsed on 30 October 2015. The full cast was required to be present for the rehearsal of that scene. Mr Armfield, of course, was also present. It was likely that Ms Gilbert and her team were also present. There was also a technical rehearsal of that scene that was choreographed in order to allow Ms Norvill, as Cordelia, to be safely carried and then lowered onto the stage by Mr Rush, as King Lear.

Previews

270    There were four preview performances of the play. They were performed between 24 and 27 November 2015. There was a full audience for each preview. They were sold-out. The previews were considered to be a vital part of preparing for the play.

271    Mr Armfield produced notes in respect of the preview performances. Those notes were emailed to the cast by the stage manager. Mr Armfield then spoke to those notes at meetings he had with the cast, usually the following day. The stage manager, Ms Gilbert, and the deputy stage manager, Mr Eichorn, also produced performance reports which contained pertinent observations which she made of each performance.

Media and publicity

272    On 17 November 2015 Mr Rush attended an interview conducted by a journalist with The Sydney Morning Herald. He was accompanied by Ms Buday, Ms Thomson, and Ms Norvill. The obvious purpose of their attendance at the interview was to promote the play. It was conducted on the premises of the STC. The journalist wrote a story based on the interview which was published in The Sydney Morning Herald on 19 November 2015.

273    As has already been noted, Nationwide and Mr Moran’s particulars of their truth defence included a statement that Mr Rush was reported to have made during this interview. That statement was that he had a “stage door Johnny crush” on Ms Norvill. It is, however, necessary to consider that statement in the context of The Sydney Morning Herald article as a whole. The opening paragraphs of the article are 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?”

274    The article later deals with, amongst other things, the mood of the rehearsals, which by this time had almost concluded. It 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.”

275    This was one of a number of interviews that Mr Rush participated in so as to promote the play.

276    In late November or early December 2015, Ms Norvill was interviewed by a journalist at the Telegraph. The article which resulted from the interview was published in the Telegraph on 3 December 2015. By this time, the rehearsals of King Lear had ended and the previews had been performed.

277    The opening paragraph of the Telegraph article made it clear that one of the main themes of the story was what it was like for Ms Norvill to work with Mr Rush. The article began by saying that Ms Norvill had “open[ed] up about playing Shakespearean women and working opposite Oscar-winner Rush in the Sydney Theatre Company’s King Lear”. Later in the report, Ms Norvill is reported as having said:

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.

Performances

278    The opening night for the play, which was performed at the Roslyn Packer Theatre in Walsh Bay, Sydney, was 28 November 2015.

279    The performance time for the play was about three hours. There was an intermission at the end of Act III, Scene VII. Mr Rush, as King Lear, was on stage himself for about 2 hours of the performance time. Mr Rush and Ms Norvill were in four scenes together, including, relevantly, the final scene, Act V Scene III. It was, by all accounts, a demanding play for most of the actors involved.

280    There were generally eight shows per week. On some days, there was a matinee as well as an evening show. There was no performance on Christmas day. The audience for each show was about 960 people.

281    One of the performances was filmed by the STC. A recording of that performance was tendered. A portion of the recording of Act V Scene III was played in Court.

282    The final performance was on 9 January 2016.

283    There was an “after party attended by the cast and crew on the evening of 9 January 2016. Both Mr Rush and Ms Norvill attended that party.

284    In a media release dated 10 May 2016, the STC noted that one of the highlights of its 2015 season was “the return of Geoffrey Rush to the STC, tackling one of the great roles of the canon, Lear, in a bold production by director Neil Armfield”.

Complaint

285    Ms Norvill did not complain to anyone about Mr Rush’s behaviour at any time throughout the period of the rehearsals, preview performances and performances of the play. As will be seen, Ms Norvill’s evidence was that she did have some conversations during the production with Ms Nevin and Mr Armfield in which she referred to sexual harassment, or being upset. The evidence concerning those conversations is contentious and will be considered later. Suffice it to note at this stage that, even on Ms Norvill’s account of those conversations, she did not directly refer to Mr Rush during those conversations.

286    On 5 April 2016 Ms Norvill met with Ms Annelies Crowe at a pub in Annandale, Sydney. Ms Crowe was the Company Manager of the STC. The meeting was at Ms Norvill’s request. During the meeting Ms Norvill told Ms Crowe about Mr Rush’s behaviour towards her during King Lear. On 6 April 2016, Ms Crowe sent an email to Mr McIntyre and Ms Rachael Azzopardi about what had transpired during her discussions with Ms Norvill. Mr McIntyre was the Executive Director of the STC and Ms Azzopardi was the Director, Programming and Artistic Operations at the STC. Ms Crowe was not called to give evidence. Nor were Mr McIntyre or Ms Azzopardi. The contents of Ms Crowe’s email, and Ms Norvill’s evidence concerning her discussions with Ms Crowe at the meeting, will be considered later. It suffices at this stage to note that the significance of this evidence is that it bears on the consistency or inconsistency of the account that Ms Norvill has given about Mr Rush’s behaviour over time.

287    Shortly after the meeting on 5 April 2016, Ms Norvill and her agent, Ms Lisa Mann, met with Ms Azzopardi and Ms Serena Hill, the Casting Director at the STC, at another bar. Nobody who attended that meeting made a contemporaneous record or note of the discussions. An email Ms Hill sent to Mr McIntyre over eighteen months later noted that Ms Norvill had said that she did not want to make a “formal complaint” and that the meeting was “off the record”. Ms Mann and Ms Hill were not called to give evidence.

288    In about June 2016, Ms Norvill had a conversation with Ms Nevin. They were both performing in the play All My Sons at the time. There was a conflict between the evidence of Ms Norvill and Ms Nevin about the terms of this conversation. That evidence, and the potential significance of it, is discussed later.

Mr Rush’s knowledge of the complaint

289    The STC did not tell Mr Rush that any complaint, formal or otherwise, had been made about his conduct during the rehearsals and performances of King Lear. Nor was he ever told that the STC would never work with him again, if any such decision had in fact been made, or the reasons for any such decision.

290    Mr Rush was first notified that a complaint was said to have been made about his allegedly “inappropriate behaviour” when an email was sent to his agent, Ms Ann Churchill-Brown, by a journalist from The Australian newspaper on 10 November 2017. The journalist asked Mr Rush’s agent to provide answers to questions relating to three issues.

291    The first issue concerned an award that “AACTA” (the Australian Academy of Cinema and Television Arts) had conferred on Harvey Weinstein in 2013. The main question relating to that issue was why the award had not been withdrawn in spite of the scandal engulfing Mr Weinstein since early October 2017. Mr Rush was the President of AACTA.

292    The second issue related to posters for the MTC’s 2018 season. Those posters, which featured Mr Rush, had been defaced to suggest that Mr Rush was a sexual predator.

293    The third issue was said to concern “the STC’s confirmation to The Australian that a complaint of ‘inappropriate behaviour’ against [Mr Rush] was made to the company”. The questions posed in relation to that issue included when that inappropriate behaviour occurred, what it entailed, how the complaint was resolved, and whether Mr Rush regretted that the incident occurred.

294    After becoming aware that a complaint about him had apparently been made, Mr Rush telephoned Mr McIntyre. Mr Rush asked Mr McIntyre to give him the details of the complaint of inappropriate behaviour that had been made about him. Mr McIntyre refused on the basis that the complainant had requested anonymity and the STC was respecting her privacy.

295    In answer to the third issue and the questions posed by it, Mr Rush provided the following response to The Australian, through his agent:

I have been informed that a statement was made against me to a Company manager, about a play I was performing in, regarding alleged behaviour towards a fellow employee. The revelation has astonished me. For my part, there were never any conceivable grounds for this perplexing statement.

296    As for the Harvey Weinstein award issue, Mr Rush provided the following response:

With regard to the AACTAs: Many companies have, recently, rightfully condemned many examples of inappropriate behaviour and serious misconduct in the workplace. According to our constitution and by-laws AACTA is currently addressing this grave situation with concern.

297    Shortly after he was contacted by the journalist, Mr Rush had a telephone conversation with Mr Damian Trewhella, who was the Chief Executive Officer of the Australian Film Institute (AFI) and AACTA. As noted, Mr Rush was the President of AACTA. Some days after that conversation, Mr Trewhella sent an email to the AFI Board which contained the following note about his conversation with Mr Rush:

Early Friday evening GR rang me to give heads up that he’d been contacted by media for a response to the HW award situation outlined above. I said thanks and mentioned that we’d responded also. In some general chat that followed we both discussed our general frustration with the current state of media/society (not an unusual chat thread) where items such as the HW award issue is made into a “story” in this way. In passing and in circumstances of confidence he mentioned, by way of example, on his side he’d been baited on some issue involving him which in his view was bullshit and a symptom of current climate. The only issue he could think of was when he was LEAR at STC involving a scene (in front of 900 people) in which he carried his dead daughter. He said it was a difficult scene and whilst he thought the carry position was right for all, there was allegedly some discomfort.

298    Mr Rush was cross-examined about his conversation with Mr Trewhella. His evidence in that regard, and the significance of it, is considered in detail later. Mr Trewhella was not called as a witness.

Other contact or communications between Mr Rush and Ms Norvill

299    On 13 November 2015 Ms Norvill attended the opening night of the play, Orlando, with Mr Rush and his daughter. Mr Winter also attended. She had dinner with Mr Rush before the performance and shared an Uber ride with him. This was towards the end of the rehearsal period.

300    Mr Rush attended a Christmas party held at Ms Norvill’s parents home on Christmas day. The circumstances in which he came to attend that party, including whether Ms Norvill invited Mr Rush to attend or not, were to some extent contentious.

301    On 6 January 2016, Mr Rush received an email from a playwright which contained positive observations concerning the performances of Mr Rush and Ms Norvill and the depicted relationship between King Lear and Cordelia. Mr Rush forwarded that email to Ms Norvill early in the morning of 7 January 2016. Mr Rush addressed his email to “darling Eedge” and signed off “xo Daaad”. Ms Norvill replied:

That was wonderful.

Thanks for sending it through Dearest Daddy DeGush.

xoxo

302    This email was sent after virtually all of the incidents between Mr Rush and Ms Norvill that provided the basis for the truth defence put forward by Nationwide and Mr Moran had allegedly occurred. Ms Norvill’s evidence about her email is discussed in detail later. Suffice it to say at this stage that there was evidence that throughout the production, Ms Norvill jokingly referred to Mr Rush as “Dad” (elongated to “Daaad”) because he was playing her father in the play. Ms Norvill’s employment of the homophone “Daddy DeGush” for Mr Rush’s name appeared to be a continuation of the game or joke between Mr Rush and Ms Norvill which involved using homophones for their respective names. That game had been a particular feature of the text messages between Mr Rush and Ms Norvill throughout 2014.

303    As already noted, in mid-2016, both Ms Nevin and Ms Norvill performed in the play, All My Sons. The opening night was on or shortly before 10 June 2016. On 10 June 2016, Mr Rush sent a text message to Ms Norvill. A line from that text message comprises a particular of inappropriate behaviour advanced by Nationwide and Mr Moran in support of their truth defence. It is, however, appropriate for that line to be read in the context of the text message as a whole. The line relied on by Nationwide and Mr Moran is highlighted in the following reproduction of the text message:

…. 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 emoji1) - 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 …. dancing emojihand emoji

xo Gregarious Raunch head emojiair emoji

(Emphasis added.)

304    Ms Norvill did not reply to the text.

Some observations concerning witness demeanour and credibility

305    As has already been noted, Nationwide and Mr Moran called evidence from Ms Norvill and Mr Winter in support of their truth defence. Mr Winter’s evidence was of fairly narrow compass. Mr Rush’s evidence addressed the allegations which formed the basis of the truth defence. Mr Rush also called evidence from Mr Armfield, Ms Buday and Ms Nevin which addressed those allegations.

306    There were conflicts between the evidence of Ms Norvill and Mr Winter, on the one hand, and Mr Rush, Mr Armfield, Ms Buday and Ms Nevin on the other. Those conflicts, for the most part, have to be resolved.

307    Witness demeanour is one consideration which may assist a judge to resolve conflicting evidence. Sometimes the demeanour of a witness while giving evidence about contentious issues may provide insight into whether the evidence given by the witness is either honest and reliable, or dishonest or unreliable. Signs that may indicate dishonesty or unreliability include evasiveness, nervousness, an apparent unwillingness on the part of the witness to make appropriate or obvious concessions and even, in some circumstances, overconfidence.

308    Even where a witness displays such traits when giving evidence, however, some caution must generally be exercised. That is because a witness may, for example, appear nervous or evasive for reasons that have nothing whatsoever to do with the honesty or reliability of their evidence. Other witnesses may be able to give evidence in an appropriately confident and direct manner and yet their evidence may be found to have been unreliable or, worse still, dishonest. Witness reliability is not always a reliable signpost. Indeed, judges have often cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability based solely or mainly on the appearance of witnesses. Scientific research has also cast doubt on the ability of judges to tell truth from falsehood accurately on the basis of such appearances: see Fox v Percy (2003) 214 CLR 118 at [30]-[31] and the cases there cited.

309    Aside from demeanour, there are other factors or considerations which may assist a judge in determining the credibility of a witness and the reliability of his or her evidence. Those considerations include: whether the witness has previously given an account of the events in question and, if so, whether that previous account is consistent or inconsistent with the evidence given by the witness; the plausibility and apparent logic of the events described by the witness; and the consistency of the account of the events described as compared with other objectively established events. Such considerations often turn out to be a much surer guide to the reliability of the evidence given by a witness about disputed events. As Atkin LJ observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140 at 152; cited in Fox v Percy at [30]:

… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.

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.

311    Before addressing the evidence relating to the disputed events – the eight allegations particularised in Nationwide and Mr Moran’s truth defence it is helpful to make some general observations about the credibility of the witnesses who gave evidence concerning the allegations, and the reliability of the evidence given by them in relation to the disputed events. The issues touched on in this general discussion will be addressed in more detail in the context of the consideration of the evidence concerning each of the allegations.

Mr Rush

312    Mr Rush was, for the most part, an impressive witness. Nothing in his demeanour suggested that he was doing anything other than giving an accurate and honest account of the relevant events and circumstances. The only potential issue in relation to the reliability of his evidence was that, on occasion, he tended to give very long-winded and wordy answers which did not directly answer the question. On balance, however, I do not consider that this reflected adversely on his credibility or the reliability of his evidence. That is because he did not appear to be giving the long-winded answers to avoid answering the question. Rather, he presented as a highly articulate and analytical person who was, by his very nature, prone to giving such complex and wordy responses. Also, when closely analysed, most of his long-winded answers related to the theatre and the play in question, those being matters about which he was clearly passionate. His answer to questions directed to the disputed events were, for the most part, more concise and responsive.

313    Mr Rush was, not surprisingly, cross-examined at considerable length by senior counsel for Nationwide and Mr Moran, including in relation to his evidence about the allegations that formed the basis of Nationwide and Mr Moran’s truth defence. Ultimately, however, Nationwide and Mr Moran pointed to only two parts of Mr Rush’s evidence which, in their submission, indicated that his evidence was unreliable.

314    The first part of Mr Rush’s evidence highlighted by Nationwide and Mr Moran related to his evidence about the text message he sent to Ms Norvill on 10 June 2016. The substance of the submission advanced on behalf of Nationwide and Mr Moran was that part of Mr Rush’s explanation of what he was intending to convey in the text message bore no resemblance to the unambiguous terms of the text message. Mr Rush’s explanation for the text was that, in the context of having missed seeing the opening night of the play that Ms Norvill was then performing in, he was intending to convey that he had not forgotten about Ms Norvill.

315    The 10 June 2016 message, and Mr Rush’s evidence concerning it, is discussed in detail later. Suffice it to say at this point that I reject the contention that Mr Rush’s evidence concerning that text bore adversely on his credibility as a witness. Indeed, as will be seen, ultimately I accept Mr Rush’s evidence that the text message was in part an apology to Ms Norvill for not attending the opening night and in part a “catch-up” because he had not been in contact for some time. It was in that respect, or in that context, that Mr Rush explained that the text was his way of saying, albeit in playful and rather cryptic terms, that he had not forgotten about Ms Norvill. I should also note, in this context, that for the reasons given in detail later, I reject the rather sinister interpretation of the text that Nationwide and Mr Moran advance.

316    The second part of Mr Rush’s evidence that was criticised by Nationwide and Mr Moran concerned his evidence about his conversation with Mr Trewhella shortly before 14 November 2017. As noted earlier, an email that Mr Trewhella sent to the AFI Board on 14 November 2017 noted, amongst other things, that Mr Rush had told Mr Trewhella about being “baited” about an issue involving his conduct during King Lear. Mr Trewhella recorded in his email that Mr Rush had said, in that context, that the only thing that he could think of was that, during the difficult scene where he carried his dead daughter, there may have been “some discomfort”. Mr Rush’s evidence concerning his discussions with Mr Trewhella in that regard included that he said, or might have said, that Ms Norvill might have been fearful that he might have dropped her. Nationwide and Mr Moran submitted that Mr Rush’s evidence about that part of his discussion with Mr Trewhella was “ludicrous”.

317    Mr Rush’s evidence concerning his discussion with Mr Trewhella is discussed in detail later. It may be accepted that some of Mr Rush’s evidence on that topic was less than impressive. Indeed, as will be seen, I do not accept some of Mr Rush’s evidence about what he may have said to Mr Trewhella. On balance, however, I do not consider that Mr Rush’s evidence about this one issue was such that it cast doubt on the reliability of Mr Rush’s evidence as a whole, as was effectively submitted by Nationwide and Mr Moran.

318    The honesty and reliability of much of Mr Rush’s evidence was not directly challenged in cross-examination. The specific allegations that formed the basis of Nationwide and Mr Moran’s truth defence were put to Mr Rush, often in fairly forceful terms. As will be seen, Mr Rush denied them. It was not, however, directly put to him in cross-examination that he was lying, or that any particular aspect of his evidence concerning the events in question was false.

319    On the whole, I consider that Mr Rush was a credible witness who gave honest and reliable evidence about the critical events in question. His evidence about those events is addressed in detail later.

Mr Armfield

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.

Ms Buday

321    Ms Buday was, in some respects at least, a unique, if not, rather unusual witness. To give one example, on more than one occasion, she sang her answer to a question. She was also a difficult witness at times. She was occasionally needlessly disrespectful to senior counsel for Nationwide and Mr Moran. It was plain that she was contemptuous towards Nationwide and Mr Moran because they had published the articles in question. It was equally obvious that she was a long-standing friend and colleague of Mr Rush. As will be seen, she gave compelling evidence about Mr Rush’s reputation. It may be accepted that Buday’s evidence in relation to the disputed events must be approached in that context.

322    Despite the features of her evidence just referred to, however, Ms Buday gave clear, direct and forceful answers to the questions that were put to her in relation to the events and circumstances in question. 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.

Ms Nevin

323    Like Mr Armfield, Ms Nevin was an impressive witness. While Ms Nevin was cross-examined at some length about one particular issue, ultimately Ms Nevin’s credibility, and the reliability of her evidence generally, was not challenged by Nationwide and Mr Moran.

324    The issue which was the subject of much cross-examination concerned the circumstances in which Ms Nevin sent a text message to Ms Norvill on the afternoon of 1 December 2017, the day that the 1 December 2017 articles were published. The text message was undoubtedly kind and supportive. Ms Nevin was plainly concerned about Ms Norvill’s wellbeing in light of the publications. The issue which was the focus of the cross-examination was how Ms Nevin knew that Ms Norvill was the complainant given that she had not been named in the Telegraph articles. As will be seen, the suggestion appeared to be that Ms Nevin knew that Ms Norvill was the complainant as a result of a conversation she had had with Ms Norvill in mid-2016. Ms Nevin agreed that she had had a conversation with Ms Norvill in mid-2016 about her unhappiness during King Lear, but denied that Ms Norvill had told her that Mr Rush had sexually harassed her during King Lear.

325    The evidence of both Ms Norvill and Ms Nevin in relation to this disputed conversation will be considered in more detail later, as will Ms Nevin’s evidence about how she came to know that Ms Norvill was the complainant. Suffices it to note at this stage that I accept Ms Nevin’s evidence about the disputed conversation. As for Ms Nevin’s evidence as to how she became aware that Ms Norvill was the complainant, Ms Nevin frankly admitted that she could not recall how she became aware of that fact and that she had difficulty recalling the precise chronology of events. In all the circumstances I consider that Ms Nevin’s frankness and candour in relation to that issue was to her credit.

326    On the whole, I do not consider that Ms Nevin’s evidence about her text message, or her evidence about how she came to know that Ms Norvill was the complainant, reflected adversely on her credibility as a witness, or the reliability of her evidence generally. Nationwide and Mr Moran did not submit otherwise. My assessment was that Ms Nevin was a frank, forthright and honest witness, and that her evidence was reliable.

Ms Norvill

327    I should make it clear at the outset that, in assessing Ms Norvill’s credibility as a witness and the reliability of her evidence, I have had regard to the somewhat difficult and unusual position she was in when she gave her evidence. When she first raised her concerns about Mr Rush’s behaviour with Ms Crowe in April 2016, Ms Norvill made it clear that she did not want to make a formal complaint. It appears that she did not want to speak publicly about her experiences. Nor could she have expected that she might have to give evidence about her experiences one day. Even when the STC issued a statement in November 2017 as a result of Nationwide and Mr Moran’s inquiries, Ms Norvill requested that her identity be withheld. She was not a party to this proceeding and had no vested interest in its outcome. Nor was she a particularly willing participant in it. She was essentially dragged into the spotlight because of the actions of Nationwide and Mr Moran.

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.

329    Despite the somewhat 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. For the most part, she gave direct and responsive answers to questions, including during cross-examination. She did not appear to be either nervous, uncertain or evasive.

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.

331    For the most part it is preferable to deal with the specific issues with Ms Norvill’s evidence when dealing with her evidence concerning the specific incidents or events that provide the basis for Nationwide and Mr Moran’s truth defence. It is, however, useful to provide a short summary or overview of the issues. They include the following.

332    First, Ms Norvill’s evidence concerning Mr Rush’s conduct, particularly during the rehearsals, was generally inconsistent with the contemporaneous statements that Ms Norvill made to journalists about what it was like to work alongside Mr Rush in King Lear. Ms Norvill’s explanation for the statements she made to the journalists is considered in detail later. It need only be observed at this stage that the explanation was not particularly persuasive.

333    Second, Ms Norvill’s evidence about Mr Rush’s conduct was inconsistent in important respects with the account which she appears to have given to Ms Crowe on 5 April 2016, only a few months after the conclusion of the performances of King Lear. This particular issue is discussed in detail later. In short, Ms Norvill disputed that she told Ms Crowe some of the things which are recorded in Ms Crowe’s email dated 6 April 2016 concerning their meeting. For their part, Nationwide and Mr Moran submitted that, for various reasons which will be referred to later, Ms Crowe’s email could not be said to be an accurate or reliable account of what Ms Norvill said during the meeting. As will be seen, that submission is rejected, though it is accepted that Ms Crowe’s email provided only an outline or summary of what Ms Norvill had told her. The difficulty for Ms Norvill is that the version of events that she appears to have given Ms Crowe in April 2016 was different in important respects to the version she gave in her evidence.

334    Third, on 13 August 2018, Ms Norvill signed a statement for the purpose of providing an outline of the evidence which she would give in this proceeding. Ms Norvill’s evidence was that she wrote that statement, that it went through several drafts over the weeks before she signed it, that she wanted it to be accurate and complete, that she read it carefully before she signed it, and that it was true. It is also apparent that, at the time the statement was written and signed, Ms Norvill was represented by a solicitor who had assisted her in the preparation of the statement.

335    Significantly, however, Ms Norvill’s evidence included descriptions of Mr Rush’s conduct which went beyond the outline which was included in her statement. There were also some inconsistencies apparent between Ms Norvill’s statement and her evidence. Most of the differences and inconsistencies are discussed later in the context of the specific allegations. In summary, the differences or inconsistencies include: whether Mr Rush used the words “scrumptious and “yummy”; whether Mr Rush’s behaviour included making hourglass shapes with his hands, licking his lips, bulging his eyes, growling and sticking his tongue out during rehearsals; whether Mr Rush made lewd gestures and comments to Ms Buday and Ms Thomson; whether the entire rehearsal room was, or that she believed that it was, somehow complicit in, or enabled the behaviour of Mr Rush as described by her; whether she had a conversation with Ms Nevin in Ms Nevin’s dressing room during the production of All My Sons, in which she told Ms Nevin that she had been sexually harassed by Mr Rush during King Lear; and whether Mr Rush stood very close to her during the bows at the end of King Lear, such that another actor took it upon himself to stand between them. For the most part, these were incidents or circumstances which were not outlined in Ms Norvill’s statement, but which featured, in some instances prominently, in her evidence.

336    Ms Norvill sought to explain why her statement did not include some of the incidents or circumstances which she had referred to during her evidence. 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”. 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.

337    Fourth, it is difficult to reconcile Ms Norvill’s evidence concerning Mr Rush’s behaviour during the rehearsals and performances with three relatively contemporaneous events or incidents. The first was that one night after rehearsals Ms Norvill attended the performance of another play, Orlando, along with Mr Winter, Mr Rush and Mr Rush’s daughter. She also went out to dinner with Mr Rush and Mr Winter before the play and shared an Uber with him. This occurred towards the end of the rehearsals. It is difficult to imagine why she would do that if Mr Rush had acted as reprehensibly during the rehearsals as she described in her evidence. Second, while Ms Norvill initially denied doing so, she ultimately conceded that she invited Mr Rush to a Christmas party at her parents’ house in 2015. She claimd that she did so somewhat reluctantly and only because she did not want to make him uncomfortanble. Nevertheless, by that time the rehearsals had concluded and the performances were well under way. Third, only two days before the very last performance, Ms Norvill addressed her reply to Mr Rush’s email to “Dearest Daddy DeGush” and signed off “xoxo”, denoting hugs and kisses. It is again difficult to imagine why she would have written to Mr Rush in those terms if he had behaved as she described in her evidence.

338    In her evidence, Ms Norvill sought to explain those events or incidents and reconcile them with her descriptions of Mr Rush’s behaviour and the way she said it made her feel towards him. Her explanations were not particularly persuasive.

339    Each of those issues or features of Ms Norvill’s evidence gives cause for doubting or questioning the reliability and credibility of her evidence. Ultimately, however, the 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.

340    I should finally note, in relation to the credibility and reliability of Ms Norvill’s evidence, that Nationwide and Mr Moran submitted that her evidence should be accepted because it had not been shown that she had any motive to lie. She was, it was submitted, not a party to the proceeding and need not have come forward to give evidence in Nationwide and Mr Moran’s defence. Nationwide and Mr Moran relied heavily on the fact that it was not put to Ms Norvill in the course of her cross-examination that she had a motive to lie.

341    It may readily be accepted that a motive to lie is a very relevant factor in judging a witness’s credit: R v Uhrig (unreported, New South Wales Court of Criminal Appeal, 24 October 1996) at 16-17; referred to in Palmer v The Queen (1998) 193 CLR 1 at [6]. It does not necessarily follow, however, that the fact that Mr Rush was unable to suggest a reason why Ms Norvill might lie is a relevant consideration in assessing her credibility as a witness: Palmer at [7]. Mr Rush was not necessarily in a position to see into Ms Norvill’s mind: cf. R v SAB (2008) 20 VR 55 at [27].

342    In any event, the issue concerning Ms Norvill’s credibility as a witness, and the reliability of her evidence, is not simply a matter of determining whether or not she has told lies, or has a motive to lie. An otherwise honest witness may give unreliable evidence for all manner of reasons. The witness’s memory of the event may be poor or defective. The witness’s memory of an event may also become distorted or polluted over time because of other intervening events or circumstances. The witness might, in such circumstances, convince himself or herself that something occurred, and genuinely believe that it did, even though it did not.

343    In all the circumstances I do not think that it is possible to reduce the factual issues and inconsistent evidence in this case to the simple question of whether or not Ms Norvill is a liar, or has told lies. The issue is not as black and white as that. Life is not that simple.

344    Moreover, as has already been noted, many of the disputed allegations do not simply involve Ms Norvill’s word against Mr Rush’s word. Many of the allegations were, on Ms Norvill’s version of events, witnessed by others, including Mr Armfield, Ms Nevin and Ms Buday. Yet, as will be seen, her version of events was not supported by, and in most respects was disputed by, those witnesses.

Mr Winter

345    Mr Winter’s evidence was fairly limited. It related to only two of the relevant allegations: first, the allegation that Mr Rush performed a lewd act on one occasion during one of the rehearsals of Act V Scene III of the play; and second, the allegation that Mr Rush touched Ms Norvill’s breast during the performance of that scene in one of the early performances of the play.

346    Mr Winter’s evidence in relation to those alleged events is addressed in detail below. In summary, the following features of that 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.

Ms Norvill’s meeting with Ms Crowe in April 2016

347    It is convenient at this point to consider the evidence relating to Ms Norvill’s meeting with Ms Crowe on 5 April 2016. As discussed earlier, this issue is relevant to the assessment of Ms Norvill’s credibility as a witness and the reliability of her evidence generally.

348    There is no dispute that Ms Norvill met with Ms Crowe at a bar in Annandale on 5 April 2016. The meeting was called at Ms Norvill’s request. During the meeting, Ms Norvill told Ms Crowe about Mr Rush’s conduct towards her during the production of King Lear. The following day, at 2.48 pm, Ms Crowe sent an email to Mr McIntyre and Ms Azzopardi which reported on the meeting and provided an “outline” of what, according to Ms Crowe, Ms Norvill had told her about Mr Rush’s behaviour. This is plainly an important document because it 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. The contents of the email should accordingly be set out in full:

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 worse, 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.

349    A number of important points should be made in relation to this email and its contents.

350    First, Ms Crowe, as STC’s Company Manager, was in a senior and responsible position.

351    Second, the subject matter of this email was plainly a very serious matter. Ms Crowe was providing a report of serious allegations of sexual harassment being made against a very senior and well-known actor during the rehearsals and performance of an STC play. Ms Crowe referred to this as a “very sensitive matter” and noted, in concluding, that she thought it was important that Mr McIntyre and Ms Azzopardi had the information as soon as possible. It was a matter which Ms Crowe plainly considered to be significant enough to report to the Executive Director and the Director, Programming and Artistic Operations of the STC and significant enough to warrant arranging a meeting with those senior officers.

352    Third, in all the circumstances, it might reasonably be inferred that Ms Crowe would have ensured that her account of what she was told by Ms Norvill was as accurate as possible. Nothing in the email itself indicated anything to the contrary.

353    Fourth, it would appear that the meeting between Ms Norvill and Ms Crowe was instigated by Ms Norvill. Ms Crowe recorded that “EJ [Ms Norvill] asked me to meet her yesterday”. There is no suggestion in the email itself that the meeting was a purely social occasion. It may reasonably be inferred that Ms Norvill arranged the meeting for the very purpose of reporting her allegations of sexual harassment concerning Mr Rush to Ms Crowe. It may also be inferred that, in those circumstances, Ms Norvill would have taken some care to ensure that she gave Ms Crowe an accurate account of what she said had occurred in that regard. Perhaps more significantly, it may be inferred that Ms Crowe would have taken some care to listen to and understand what Ms Norvill told her.

354    Fifth, despite purporting to be only an outline of what Ms Norvill told Ms Crowe, the email contains a fairly detailed account of what Ms Norvill told Ms Crowe. Importantly, it would appear that, Ms Norvill gave Ms Crowe not only an account of what she said Mr Rush had done during the rehearsals and performances, but also an account of what other members of the cast and crew would have seen, and an account of what some members of the cast did when she approached them about Mr Rush’s actions.

355    Sixth, and most critically, the version of events that Ms Norvill gave Ms Crowe, at least as recorded in the email, is inconsistent in many material respects with the evidence that Ms Norvill gave in these proceedings. Before summarising those inconsistencies, however, it is important to say something about the admissibility of the email and Ms Norvill’s evidence concerning the contents of the email and her discussions with Ms Crowe.

356    Nationwide and Mr Moran initially foreshadowed that they might call Ms Crowe as a witness in their case. They served a document purporting to be an outline of her evidence. They also sought and obtained leave to issue a subpoena to Ms Crowe. When senior counsel for Nationwide and Mr Moran opened their case, he indicated that they might call Ms Crowe, but that depended on how the evidence unfolded. Ms Crowe’s email was also included in the Court Book prepared by the parties which included the documents which the parties intended to tender. Somewhat ironically, as events transpired, an outline of objections prepared by one of the parties indicated that Nationwide and Mr Moran intended to tender Ms Crowe’s email and that Mr Rush objected to it on the basis that it was hearsay and its admission was contrary to the “credibility rule” in s 102 of the Evidence Act.

357    Ms Norvill did not refer to her meeting with Ms Crowe in her evidence-in-chief. In cross-examination, she agreed that she met Ms Crowe on 5 April 2016 and that the meeting was held at her request. She said that the meeting took place at a pub in Annandale. She said that what she told Ms Crowe during that meeting was the truth. When cross-examined about what she told Ms Crowe, however, Ms Norvill denied telling Ms Crowe much of what is recorded in the email, at least in the terms in which it is recorded.

358    At that point, senior counsel for Mr Rush endeavoured to cross-examine Ms Norvill about the contents of the email in accordance with the procedure in s 44 of the Evidence Act. That endeavour was not entirely successful or fruitful. Senior counsel for Mr Rush then tendered the email. Senior counsel for Nationwide and Mr Moran objected on the basis that it was hearsay evidence and also, albeit somewhat belatedly, contended that the Court should exclude the email in the exercise of its general discretion under s 135 of the Evidence Act on the basis that its probative value was substantially outweighed by the danger that it might be unfairly prejudicial. He submitted, in that regard, that the evidence could not be tested. He did not develop that submission. It was, in any event, a curious submission given that it was entirely open to Nationwide and Mr Moran to call Ms Crowe if there was, indeed, any need to test the evidence. They need only have called on the subpoena.

359    As for the hearsay objection, there was two fundamental difficulties with that objection. The first was that it did not appear that Mr Rush was tendering the document to prove the truth of any statement made in it. On the contrary, he was tendering it to simply prove that Ms Norvill made the statements recorded in it. Second, in any event it was open to infer from the content and nature of the document itself that it was a business record for the purposes of s 69 of the Evidence Act. There was no dispute that the STC was a business for the purposes of that section. As already noted, the email itself was from one senior officer or employee of the STC to two other senior officers which contained a record of allegations of sexual harassment which were said to have occurred in the course of one of the STC’s productions. In those circumstances there could be little doubt that it formed part of the records of the STC and contained “previous representations” made or recorded in the course of, or for the purposes of, that business. The previous representations were that Ms Norvill had told Ms Crowe various things about what had occurred during the STC production. It could also be inferred that the previous representations were made by a person, Ms Crowe, who might reasonably be supposed to have had personal knowledge of the “asserted fact”, or on the basis of information supplied by a person, Ms Norvill, who might reasonably be supposed to have had personal knowledge of the asserted fact.

360    Ms Crowe’s email was accordingly admitted into evidence. Ms Norvill was then cross-examined about whether or not she told Ms Crowe what the email recorded that she had told Ms Crowe. The effect of Ms Norvill’s evidence was that she did not say many of the things in the email, or at least that what Ms Crowe recorded in the email was not an accurate record of what she believed she had told her.

361    In re-examination, Ms Norvill said that she and Ms Crowe “drank a lot” that night and that Ms Crowe did not take any notes. In final submissions, it was submitted by Nationwide and Mr Moran that the email “does not reliably establish any statement actually made by Ms Norvill” during the meeting on 5 April 2016.

362    That submission is rejected.

363    It may, of course, be accepted that the email was not, and does not purport to be, a transcript or verbatim and complete record of everything that Ms Norvill said that evening. It purports only to be an “outline” of what was said in relation to the allegations of sexual harassment. Aside from Ms Norvill’s evidence, however, there is no sound basis to find that the outline was inaccurate in material respects, or was otherwise an unreliable record of what was said.

364    It was never expressly submitted that Ms Crowe was so inebriated that her recollection, the following day, of what Ms Norvill had said was unreliable. That, did however, appear to be the implication in the submission made by Nationwide and Mr Moran based on the slim piece of evidence elicited from Ms Norvill in re-examination. If that was the basis of the submission, it is rejected. I am not prepared to infer, simply from Ms Norvill’s somewhat belated evidence that she and Ms Crowe “drank a lot” and that Ms Crowe was so inebriated that her email contained an inaccurate or unreliable account of what Ms Norvill told her. That is so particularly in the absence of any evidence from Ms Crowe. Nor am I prepared to infer that the email was inaccurate or unreliable because Ms Crowe did not take notes.

365    As has already been noted, the subject matter of the discussion between Ms Norvill and Ms Crowe on the evening of 5 April 2016 was self-evidently important and serious. I infer that, given Ms Crowe’s position and responsibilities, and the nature of the information that was being conveyed to her, Ms Crowe would have paid careful attention to what Ms Norvill was saying and made a mental note. That is so even if Ms Crowe was not making written notes and even if she and Ms Norvill were drinking.

366    Ms Crowe prepared her email within 24 hours of the meeting. It was self-evidently an important email. It was sent to senior officers of the STC in relation to serious allegations. I infer, in all the circumstances, that Ms Crowe would have been careful to ensure that it was as accurate as possible and that, if she had any doubts whatsoever as to the accuracy or reliability of her “outline”, whether by reason of her having been drinking, or because she did not have written notes, she would have advised her colleagues accordingly.

367    As for Ms Norvill’s evidence about what she in fact said to Ms Crowe, I am not satisfied that she gave a credible, accurate or reliable account of that conversation.

368    The contents of Ms Crowe’s email raised a number of significant issues about the reliability and credibility of Ms Norvill’s evidence. That is because, even accepting that Ms Crowe’s “outline” was not, and did not purport to be, a verbatim account of exactly what Ms Norvill said, the general account that Ms Norvill appeared to have given Ms Crowe, within a few months of the close of the production, was inconsistent in important respects with the account Ms Norvill gave in her evidence. Those inconsistencies may be summarised as follows.

369    First, the account that Ms Norvill gave of Mr Rush’s behaviour towards her during the rehearsals is not nearly as serious as the account given by her in her evidence. The account given to Ms Crowe was that Mr Rush’s sexual harassment began in the rehearsals, but that the conduct in the rehearsals involved “mild commentary of her in the room, suggestive comments and flirting”. As will be seen, Ms Norvill’s evidence was that Mr Rush’s behaviour during the rehearsals was far more serious than that description would suggest. It included repeated lewd groping and fondling gestures and sexual innuendo.

370    Second, the account Ms Norvill gave Ms Crowe included that Ms Norvill had initially tried to dissuade Mr Rush and that, once she felt uncomfortable, as a result of his behaviour, she “directly said to him [Mr Rush] that his behaviour and comments were making her feel uncomfortable and she would like him to stop, which he didn’t”. As will be seen, Ms Norvill’s evidence was that she did not, directly or otherwise, tell Mr Rush that his behaviour and comments were making her feel uncomfortable and that she would like him to stop. Her evidence was that she did, during one incident towards the very end of the performances, say “[p]lease stop that” to Mr Rush when he touched her back. On that occasion, Mr Rush did stop touching her back. That was, however, on Ms Norvill’s own account, the only occasion she ever said anything to Mr Rush about his behaviour.

371    Third, Ms Norvill told Ms Crowe that, once the performances began, other members of the cast would have seen Mr Rush touching her backstage, but did not do anything. As will be seen, the only instances of touching backstage that Ms Norvill referred to in her evidence involved Mr Rush touching her hands and back immediately before he carried her onto the stage in the final scene. She did not suggest that anyone else saw, or would have seen, those particular incidents of touching.

372    Fourth, Ms Norvill told Ms Crowe that Mr Rush “grope[d]” her when he picked her up to carry her onto the stage in the final scene. As has just been noted, Ms Norvill’s evidence was that Mr Rush touched her hand and back just before he picked her up. That is somewhat inconsistent with the allegation that he groped her when he picked her up.

373    Fifth, the version of events that Ms Norvill described to Ms Crowe included an incident at the closing night party. That incident involved Mr Rush following her into the bathroom, prompting her to break down, fall to the floor and telling Mr Rush to leave. Ms Norvill apparently told Ms Crowe that this was the first time that she saw some recognition in Mr Rush’s face that he realised he had “crossed a line”. Ms Norvill’s evidence did not include any evidence about any such incident. When cross-examined about this apparent inconsistency, Ms Norvill said that she did not believe that Mr Rush followed her into the bathroom or that she told him to leave. She said that she did not believe that she told Ms Crowe that he had. It should be noted in this context, however, that Mr Winter’s evidence was that Ms Norvill told him that Mr Rush had followed her into the bathroom.

374    Sixth, Ms Norvill told Ms Crowe that she “directly approached each of the 3 other females in the cast to get their advice, and they each brushed it off”. The three female cast members were Ms Nevin, Ms Buday and Ms Thomson. In her evidence, Ms Norvill said that she approached Ms Nevin. That evidence is discussed in detail later. It suffices at this point to note that, even on Ms Norvill’s account, the conversation she had with Ms Nevin could hardly be said to be a direct approach. Nor could Ms Nevin’s response be said to be a brush-off. As for Ms Buday, in her evidence, Ms Norvill did not say that she approached Ms Buday in relation to Mr Rush’s behaviour. Finally, Ms Norvill did say in her evidence that she had a conversation with Ms Thomson about Mr Rush’s behaviour, though even on Ms Norvill’s account, what she said to Ms Thomson was, at best, equivocal or ambiguous. She did not say that Mr Rush had sexually harassed her. Ms Thomson was not called to give evidence.

375    Seventh, Ms Norvill told Ms Crowe that she “approached a few of the younger males in the cast but they said they didn’t know what she should do”. Ms Norvill’s evidence was that she approached Mr Masters and Mr Winter, but they did not know what to do. Mr Masters did not give evidence. Mr Winter, in his evidence, did not refer to being approached by Ms Norvill about Mr Rush’s behaviour or telling Ms Norvill that he did not know what she should do about it.

376    Eighth, Ms Norvill told Ms Crowe that she approached Mr Armfield and told him that she was having difficulties with Mr Rush and that Mr Armfield said that he would talk to him. Ms Norvill gave evidence in relation to a discussion that she said she had had with Mr Armfield, however her evidence of that conversation differed from the one she apparently described to Ms Crowe. This is discussed in more detail later.

377    I accept that Ms Crowe’s email account of what Ms Norvill told her was not, and does not purport to be, a verbatim transcript or record of precisely what Ms Norvill said to Ms Crowe. In those circumstances, a few fairly minor inconsistencies could perhaps be disregarded or given little weight. However, the inconsistencies between the version of events Ms Norvill gave Ms Crowe, as recounted in the email, and the version of events Ms Norvill gave in her evidence are numerous and cannot be described as minor or insignificant. At the very least, they cast some doubt on the reliability and credibility of Ms Norvill’s evidence.

378    A final point should be made concerning Ms Crowe’s email. Despite objecting to the tender of the email and submitting that it contained an unreliable account of what Ms Norvill told Ms Crowe, and despite refraining from calling Ms Crowe while having subpoenaed her to give evidence, Nationwide and Mr Moran sought to make mileage of something said by Ms Crowe in the email. That was Ms Crowe’s statement that, “[k]nowing Geoffrey’s reputation”, she had assumed that Mr Rush was the cause of Ms Norvill’s apparent distress at the party on closing night.

379    The difficulty for Nationwide and Mr Moran is that they did not call Ms Crowe to give evidence about what, if anything, she knew about Mr Rush’s reputation, or what she meant by that comment in her email. It should equally be noted that Mr Rush called fairly extensive evidence of his good reputation. That evidence went essentially unchallenged. Nationwide and Mr Moran did not call any evidence to suggest that Mr Rush had a bad reputation in any relevant respect. In those circumstances, Ms Crowe’s aside about Mr Rush’s reputation should be given little, if any, weight in determining any of the facts in issue in this proceeding.

Allegation one: Groping and fondling gestures during a rehearsal

380    The essence of this allegation was that, on one occasion when Mr Rush and Ms Norvill were rehearsing the final scene of the play, in which Cordelia is dead and King Lear is grieving over her dead body, Mr Rush hovered his hands over Ms Norvill’s torso and pretended to caress or stroke her upper torso. Mr Rush also made groping gestures in the air with two cupped hands which simulated him groping and fondling Ms Norvill’s breasts. This incident was said to have occurred in front of other members of the cast and perhaps crew.

Ms Norvill’s evidence

381    Ms Norvill’s evidence-in-chief concerning this alleged incident was as follows:

Yes. Now, do you recall to mind during that rehearsal period – and I’m suggesting to you about the third week of rehearsals – do you recall to mind something that happened that was different from what had gone before in the course of that scene?---Yes.

All right. Could you tell the court what happened?---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.

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

What did he say?---I heard Neil say “Geoffrey, stop that.

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 - - -?---It was reprimanding and angry. He – he sounded angry.

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

After Mr Armfield said what he said, what did Mr Rush do?---He stopped.

382    This incident was said to have occurred during one of the rehearsals of the last scene of the play. The rehearsal schedule shows that the full cast was required to be present during the rehearsals of the last scene. That meant that it was likely that all 14 members of the cast would have witnessed this alleged incident. On Ms Norvill’s own account, Mr Armfield was also present and witnessed the incident. Indeed, according to Ms Norvill, Mr Armfield reacted angrily to it and sternly reprimanded Mr Rush. It is also likely that the stage manager, Ms Gilbert, and her deputy and assistants would have been present.

383    On Ms Norvill’s account, Mr Rush’s actions were obviously inappropriate. They involved groping or cupping gestures above Ms Norvill’s breasts coupled with lewd facial gestures. It is difficult to imagine that any member of the cast or crew could have seen this conduct as humorous, let alone acceptable behaviour on the part of Mr Rush. It is difficult to see how any of the cast or crew who witnessed it could readily forget it, or disregard it as simply Mr Rush clowning about.

384    Ms Norvill’s evidence was that she did not speak with Ms Gilbert, the stage manager, about Mr Rush’s behaviour. That was because she believed that Ms Gilbert was “sick” and “overloaded” because she was working on two shows. Nor did Ms Norvill speak with Ms Crowe at the time, because she (Ms Norvill) “didn’t know how to access the pathways … of support”. Ms Norvill said that she did not speak with Ms Azzopardi because she did not find Ms Azzopardi very approachable.

Mr Winter’s evidence

385    Mr Winter was the only witness whose evidence was capable of corroborating Ms Norvill’s account of this incident. His evidence was as follows:

Do you remember an incident happening in the rehearsal period involving that scene?

……

THE WITNESS: Do I remember an incident - - -

MR BLACKBURN: Yes?--- - - - in the rehearsal of that scene?

Yes?---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 - -

Well - - -?---Making, like, a – a – a jokey gesture at the end.

Right. What was the gesture?---Well, that was the gesture, I guess, a – a boob-squeezing gesture.

Where was Mr Rush standing when he did it?---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 - - -

Have you given all your recollection about the incident that you just described?---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.

386    A number of points can be made about Mr Winter’s evidence concerning this incident.

387    First, Mr Winter himself described his recollection as the “vaguest of [his] recollections”.

388    Second, Mr Winter said nothing about this incident in his written outline of evidence which was prepared and served prior to the trial. He gave no satisfactory or persuasive explanation for how his recollection of this alleged incident came to be omitted from his statement.

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. Mr Winter’s evidence in that regard was as follows:

I see, and you had a conversation with them on Sunday night, that is, 28 October?---I don’t even know what day it is at the minute. Is it – was that last Sunday?

That was last Sunday?---Yes. As I was due to appear on the Monday. So I travelled up on the Sunday night.

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

390    Fourth, the incident as described by Mr Winter was not entirely consistent with, and was certainly not nearly as serious as, the event as described by Ms Norvill. The event described by Mr Winter was more a “Three Stooges” style “skit” or joke. It did not involve Mr Rush “bulging his eyes” or “licking his lips”. And, while Mr Winter described a single “jokey” gesture which mimicked “boob-squeezing”, that description was inconsistent with, and considerably less serious than, Ms Norvill’s version, which involved Mr Rush “gesturing, stroking up and down [Ms Norvill’s] torso” and “groping or cupping above [her] breasts”.

391    Fifth, Mr Winter apparently did not think much of the incident at the time. His evidence in that regard was:

And, of course, you thought nothing of it at the time, did you?---Well, no. It didn’t happen to me. It was just something happening.

392    That is perhaps consistent with his characterisation of the incident as being like a “Three Stooges” style “skit”. If the incident that he recalled witnessing was indeed the one described by Ms Norvill, it would be surprising that he would not have thought more of it at the time.

393    Sixth, if Mr Winter had in fact witnessed the event as described by Ms Norvill, it is difficult to see how he could not have thought that it was an entirely inappropriate way for a senior actor to behave. Yet his evidence was that he believed that Mr Rush was an “exemplary company leader” who had “led the company well” and had taken on the role of company leader “with great enthusiasm”. He apparently thought so highly of Mr Rush that after the performances of King Lear had ended, he asked Mr Rush for a reference. It is difficult to see how Mr Winter could have held those views about Mr Rush if he had witnessed the incident as described by Ms Norvill.

Mr Rush’s evidence

394    Mr Rush emphatically denied engaging in any of the conduct during rehearsals as described by Ms Norvill. He went so far as to say that the proposition that he engaged in such conduct was “preposterous”. His evidence, in that regard, was that the relationship between King Lear and Cordelia in the play contributed an “enormous spine” to the play and was “vital to the emotional landscape” of the play. The effect of his evidence was that the proposition that he had engaged in the conduct described by Ms Norvill was preposterous because it would have destroyed his relationship with Ms Norvill and therefore destroyed the dramatic relationship between King Lear and Cordelia.

395    Mr Rush’s evidence was also that, not only did Ms Norvill never complain or express any concerns to him about his behaviour during rehearsals or during the play, but that he had no inkling that their relationship was other than congenial, or that he was in any way making Ms Norvill feel uncomfortable. His evidence in that regard was as follows:

Right. Now, at this point had Ms Norvill raised any concerns with you concerning anything you had done in relation to her?---I had no inkling I – my antennae is pretty good. I’m probably – I was probably, through rehearsals and performance – I lived Lear on a daily basis of that’s the goal of my day. But I’m pretty aware of moodscapes within a group of people, and I never detected that I was making her, as I hear now – was making her feel uncomfortable or that I was ruffling feathers or no one came up and said, “I think you’re getting on Eryn Jean’s nerves or something – nothing remotely at all. It felt – congenial and colligation are the only words I can express that with.

396    Nothing said by Mr Rush in cross-examination cast any doubt on his denial that he engaged in any behaviour during rehearsals of the sort described by Ms Norvill.

Mr Armfield’s evidence

397    Mr Armfield was present during the entirety of the rehearsals. It is difficult to imagine that, as the director of the play, he would have done anything other than closely scrutinise and oversee the rehearsals. He denied seeing any of the conduct described by Ms Norvill. His evidence was that he did not see Mr Rush hovering his hands above Ms Norvill’s torso and pretending to caress or stroke her upper torso, making groping gestures in the air with two cupped hands as if to simulate groping or fondling her breasts, sticking his tongue out and licking his lips, or using his hands to grope the air like he was fondling Ms Norvill’s hips or breasts. His evidence was that, if he had witnessed any such conduct, he would have said “[w]hat are you doing? Stop”, but that he never had cause to do that. Mr Armfield also gave evidence that he did not ever hear Mr Rush make jokes, comments or sexual innuendo about Ms Norvill’s body.

398    Nothing that arose in the cross-examination cast any doubt on the reliability of Mr Armfield’s evidence that he saw none of the conduct described by Ms Norvill occur.

Ms Buday’s evidence

399    Ms Buday was present during the rehearsals of the final scene. The clear effect of Ms Buday’s evidence, both in chief and during cross-examination, was that she did not recall Mr Rush ever make a joke about Ms Norvill’s body, or make lewd gestures in her direction, or stick his tongue out and lick his lips and use his hands to grope the air like he was fondling Ms Norvill’s hips or breasts. Her evidence was that, if she had seen any of those things occur, she would have done something because she was an “elder” in the theatre and knew “what it is [like] to be a young actress, a younger player, and especially at [the] Sydney Theatre Company, especially with high-status older actors”. Ms Buday also denied hearing nervous and restrained laughter from those standing around during any such incident during rehearsals, and denied that she ever heard Mr Armfield say “Geoffrey, stop that”.

400    There is no reason to doubt Ms Buday’s evidence about those matters. None was suggested by Nationwide and Mr Moran.

Ms Nevin’s evidence

401    Ms Nevin’s evidence was that, as she perceived it, Mr Rush got on with all the cast and crew, including Ms Norvill, and that she never noticed anything out of the ordinary in relation to Mr Rush’s relationship with Ms Norvill. Her evidence in that regard was as follows:

And did you observe at all how Mr Rush got along with the other cast and crew members?---He got on as he – as I’ve perceived him, or was getting on with people. He’s generally – Geoffrey’s demeanour in the rehearsal room is always very positive, cheerful, uplifting unlike my own. And in that way he is a very successful leader of a company because I’ve – I’ve now experienced that in Figaro, Drowsy Chaperone and Leer. He was really leading the company in those three productions. And his – his buoyancy and sense of optimism and just general cheerfulness and enthusiasm for the work because he’s so steeply – deeply steeped in – in – in being an actor. That’s who he is, and he brings all of that enthusiasm. But it’s not just that; he also brings research. He’s obsessed with his work and, so, every project that he embarks on he researches very thoroughly with extraordinary enthusiasm, and he brings that all to the rehearsal room. So his demeanour is always in my experience cheerful and positive and funny. He’s a very cheerful kind of jolly person.

To your observation - - -?---He’s witty.

Sorry. To your observation did you see him interacting with Ms Norvill?---I would have done because he was interacting with everybody in the room, so yes.

And do you recall how he was getting along with her during the rehearsals?---Well, I would have – I would have observed his relationship with Ms Norvill as the same – similar to his relationship with me and everybody else; jovial, friendly, enthusiastic, cheerful.

So did you notice anything out of the ordinary in relation to his relationship with Ms Norvill?---I didn’t. No.

402    That aspect of Ms Nevin’s evidence was not challenged in cross-examination.

403    Ms Nevin was sure that she was present during the rehearsals of the final scene. She did not recall seeing Mr Rush do any of the things described by Ms Norvill in her evidence, including hovering his hands over Ms Norvill’s torso as she was lying on the floor, or pretending to caress or stroke her upper torso, or making groping gestures in the air with two cupped hands as if to simulate groping or fondling Ms Norvill’s breasts or hips. Ms Nevin made it clear that, if she had witnessed any such conduct, she would have done something. Her evidence as to what she would have done was as follows:

What would you have done?---I would have spoken to – to Neil directly, and I would think also to Georgia Gilbert who’s the stage manager who’s was highly regarded, very efficient, and I would trust her, and I – I would also talk to Neil. I wouldn’t probably have gone to management of Sydney Theatre Company at that time. I think it could have been dealt with in the room.

404    This evidence was not challenged in cross-examination. It was not put to Ms Nevin that she had witnessed any of the events described by Ms Norvill in her evidence, but did nothing about it. It certainly was not put to her that her evidence that she recalled none of those events was untruthful.

Other aspects of Ms Norvill’s evidence about the rehearsals

405    It is, in this context, necessary to consider three other parts or aspects of Ms Norvill’s evidence that bear on the first allegation. The first concerns an allegation made by Ms Norvill to the effect that, everyone in the rehearsal room was “complicit” in, or even “enabled”, Mr Rush’s conduct. The second concerns Ms Norvill’s evidence that Mr Rush made sexual comments and gestures towards other female members of the cast, including Ms Buday, Ms Thomson, the stage manager, Ms Gilbert, and the assistant stage managers, Ms Bowes and Ms Hankin. The third concerns Ms Norvill’s evidence that she had conversations with Ms Nevin, Ms Thomson and Mr Armfield during which she referred, directly or indirectly, to Mr Rush’s behaviour.

Ms Norvill’s evidence that everyone in the rehearsal room was “complicit”

406    Ms Norvill’s evidence was to the effect that she did not complain or speak to Mr Rush about his behaviour in the rehearsal room. In the course of explaining why that was so, Ms Norvill gave the following evidence:

Well, could you tell the [C]ourt what the reasons were, please, and take your time?---I was at the bottom of the rung in terms of the hierarchy and Geoffrey was definitely at the top. That was in play. I have to be honest and say that his power was intimidating and his person. I wanted to be a part of his world and we were also playing father and daughter. I felt that if I was to speak or reprimand the behaviour I might jeopardise – I would jeopardise that relationship, the tenderness, the closeness, the love that is needed in those two roles. 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. And, again, Geoffrey was – I wanted him to be my mentor. But I – I was able to try to make a joke out of it, I’d say, “Dad. Oh Dad, don’t. Dad”, reminding him that I was playing his daughter and it really wasn’t appropriate to be belittling me like that and it wasn’t funny.

(Emphasis added.)

407    Ms Norvill also claimed that Mr Rush’s behaviour in the rehearsal room was “normalised”.

408    In cross-examination, Ms Norvill confirmed that the criticism implicit in the allegation that the cast and crew were “complicit” specifically included Ms Nevin. Indeed, she went so far as to say that Ms Nevin “enabled” Mr Rush’s conduct, “as did everyone in that room”. That, presumably, included, amongst others, Ms Buday and Mr Armfield. Her evidence in that regard included the following:

What do you mean by “enabled that behaviour”?---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.

Do you mean everyone in the room was bullying and harassing?---No, I don’t mean that, but - - -

Well, what specifically do you mean, then?---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.

But – and that included Ms Nevin, did it?---Yes, it did.

You don’t suggest she was frightened, do you? She’s a very senior, accomplished actor?---No, I imagine she wouldn’t have been frightened.

409    On one view of it, this evidence was tantamount to an allegation that Ms Nevin, Ms Buday and Mr Armfield, who by the time Ms Norvill gave this evidence had given their evidence and been cross-examined, had lied when they gave their evidence under oath or affirmation. At the very least, Ms Norvill appeared to be saying that she believed that Ms Nevin, Ms Buday and Mr Armfield knew about the behaviour of Mr Rush during rehearsals that she had described in her evidence, but chose to do nothing about it. That appeared to be one of the bases of her belief that they were complicit.

410    As has already been noted, both Ms Buday and Mr Armfield denied that they saw or heard Mr Rush do any of the things in the rehearsal room that Ms Norvill claimed he did. Ms Nevin’s evidence was that she did not recall any of those things occurring. All three witnesses also all said that, if they had seen Mr Rush do anything of that nature, they would have taken some action, or done something about it. It was not put to them in cross-examination that their evidence in that regard was false, or that they were being untruthful when they said that they did not see or hear Mr Rush engage in any of the alleged conduct. Nor was it put to them that, having seen Mr Rush engage in the alleged conduct, they did nothing about it because they did not know what to say, or were frightened of Mr Rush, or frightened of taking any action against him. It was not put to them that they were subject to, or perhaps were part of, a level of hierarchy that kept that fear and silence in place”. It was certainly not put to them that they, in any way, or in any sense, enabled or were complicit in any untoward behaviour of Mr Rush during the rehearsals.

411    To the extent that Ms Norvill’s evidence suggested that Ms Nevin, Ms Buday or Mr Armfield enabled, or were complicit in, or remained silent and did nothing about any inappropriate behaviour of a sexual kind by Mr Rush, or any conduct that could be characterised as sexual harassment, I should make it clear that I reject that evidence and suggestion. Equally, if Ms Norvill was saying, or intending to say, no more than that she believed that Ms Nevin, Ms Buday or Mr Armfield enabled, or were complicit in, any such conduct by Mr Rush, I find, on the evidence as a whole, that there was and is no reasonable basis for any such belief. That is so for a number of reasons.

412    First, for the detailed reasons given elsewhere in this judgment, I do not accept that Mr Rush engaged in the conduct alleged by Ms Norvill. I am not satisfied, on the balance of probabilities, that Mr Rush engaged in any such conduct.

413    Second, I accept the evidence of Ms Nevin, Ms Buday and Mr Armfield that they did not witness any such behaviour by Mr Rush, or in Ms Nevin’s case, that she did not recall witnessing any such behaviour. The alleged conduct was such that, if it had occurred, it is unlikely that Ms Nevin, Ms Buday or Mr Armfield were likely to have missed seeing it, or forgotten about it. I also accept their evidence that, had they seen or heard Mr Rush engage in any such conduct, they would have taken some action in relation to it. Not only was their evidence in that regard not challenged in any way in cross-examination, but no persuasive submission was advanced which suggested any reason or basis for disbelieving the evidence of these witnesses.

414    The only submission that was made by Nationwide and Mr Moran in relation to the evidence of Ms Nevin, Ms Buday and Mr Armfield in this regard was that it is necessary to consider their evidence in context. The context was said to include Ms Norvill’s evidence, in respect of Ms Nevin, that “[w]e’re from different generations; maybe we have different ideas about what is culturally appropriate in a workplace”. The suggestion appeared to be that Ms Nevin, Ms Buday and Mr Armfield witnessed the alleged behaviour of Mr Rush, but did not appreciate that it was culturally inappropriate because of their age.

415    That submission is rejected. There is simply no basis for it. No such suggestion was put to Ms Nevin, Ms Buday or Mr Armfield in cross-examination. Even putting that to one side, each of them was a highly-qualified, experienced, accomplished and well-respected, if not revered, figure in theatre circles. No question was raised about their character or integrity. Nor could it have been. When regard is had to the nature of the conduct that Ms Norvill alleged that Mr Rush had engaged in during rehearsals, the suggestion that, by reason of their age or otherwise, any of them may not have considered the conduct to be culturally inappropriate is untenable. It appears to have amounted to little more than speculation.

416    Third, the apparent suggestion by Ms Norvill that Ms Nevin, Ms Buday and Mr Armfield would not have known what to do in the face of the alleged behaviour, or were for some reason frightened to do anything about it, is equally difficult to accept. In the case of Ms Nevin and Ms Buday, even putting their impeccable character and integrity to one side, both of them gave every impression of being an independent, strong-willed woman who was not be to reckoned with. It may be noted that, when pressed, Ms Norvill almost immediately resiled from the suggestion that Ms Nevin would have been frighted by Mr Rush, or frightened to do anything about any inappropriate conduct by him. As for Mr Armfield, he had worked with Mr Rush for many years. Mr Rush described him as his “artistic brother”. They were obviously close. The suggestion that Mr Armfield might have been frightened of Mr Rush, or otherwise unable or unwilling to confront him if he had engaged in the sort of behaviour described by Ms Norvill, is fanciful.

417    It was not put to Ms Nevin, Ms Buday or Mr Armfield in cross-examination that any aspect of their evidence was not entirely frank or honest because of their long-standing association or friendship with Mr Rush. Nor was any such submission advanced.

418    Fourth, no other witness supported Ms Norvill’s evidence that everyone in the rehearsal room was complicit in Mr Rush’s alleged conduct, or that Mr Rush’s conduct was in any way normalised, or enabled by the silence, unwillingness, or inability of those in the rehearsal room to do anything. Mr Winter, did not give any evidence that could be said to have corroborated Ms Norvill’s evidence in that regard. He was in the rehearsal room. He did not suggest that he was frightened of Mr Rush, or frightened to do anything about his conduct. Nor did Mr Winter say that he did not know, or would not have known, what to do in the face of such conduct. It could not be suggested that he was from a different generation and therefore may have had a different idea of what was, and what was not, “culturally appropriate in a workplace”. He is only a year older than Ms Norvill. Mr Winter’s evidence was that he considered that Mr Rush was an “exemplary company leader” who had “led the company well”.

419    Ms Norvill’s apparent willingness to cast such aspersions on Ms Nevin, Ms Buday and Mr Armfield, even if she did not intend to do so, did not reflect well on her credibility and reliability as a witness. It displayed a propensity to exaggerate and embellish.

Ms Norvill’s evidence that Mr Rush directed sexual remarks and gestures to other female members of the cast and crew

420    The same can be said in relation to Ms Norvill’s evidence to the effect that Mr Rush directed sexual or sexist remarks and gestures to other female members of the cast and crew.

421    In her evidence, Ms Norvill said that Mr Rush made sexual or sexist remarks to Ms Gilbert and directed sexual or sexist gestures “at some of the younger ASMs [assistant stage managers] and … Helen Thomson and Helen Buday”. She alleged that such behaviour was “regular and became normalised in our rehearsal room”. Such conduct was, according to Ms Norvill, met with a “chorus of, Geoffrey, stop that”.

422    Ms Norvill gave the following evidence in relation to Ms Buday:

Can I just ask you, Ms Buday – Ms Norvill – I do apologise – as you sit there now, what do you remember seeing Mr Rush do to Ms Buday when you’re talking about gestures. What exactly do you recall him doing, firstly?---Geoffrey would often do the eye – eye bulging and the lip – the lips – the licking of the lips, and the hand gestures.

Similar to the ones that you described that he did to you earlier in the day- - -?---Yes, that’s right.

- - - in your evidence today. And what do you recall of Ms Buday’s response when you saw that happen? What did she do?---“Geoffrey, that’s disgusting.” “Geoffrey, don’t do that.” “Oh, Geoffrey, stop it.”

423    Ms Norvill agreed that she did not include any of those claims in the statement that she signed for the purposes of these proceedings.

424    Ms Buday’s evidence was that Mr Rush never made lewd gestures towards her body, and “[d]idn’t do it to anyone, that I saw, at all”. That evidence was not challenged in cross-examination. Likewise, Ms Nevin’s evidence was that Mr Rush never made comments to her about her body, and never made lewd gestures towards her throughout the rehearsals. That evidence was not challenged.

425    Ms Gilbert was not called to give evidence. Mr Armfield’s evidence was that he did not see Mr Rush make any such gestures towards Ms Gilbert and that he thought that “Georgia Gilbert would have slapped Geoffrey on the face had such a thing happened”.

426    Ms Norvill’s evidence was that Mr Rush made similar lewd gestures towards Ms Thomson. She also claimed that, presumably following such occurrences, Ms Thomson would hit Mr Rush and say “don’t” or “Geoffrey, stop that”. Indeed, she said that Mr Rush’s behaviour was such that there was frequently a chorus of “stop that” and “don’ts” directed at Mr Rush during the rehearsals. Ms Thomson was not called to give evidence. Ms Norvill did not include those claims in her witness statement. No other witness supported Ms Norvill’s version of events in relation to Ms Thomson or the chorus of “stop that” or “don’ts.

427    Mr Winter’s evidence provided no support for Ms Norvill’s evidence in relation to Mr Rush’s alleged gestures towards the other female members of the cast and crew. He was not asked a single question in his evidence-in-chief about his observations concerning Mr Rush’s behaviour towards female members of the cast or crew other than Ms Norvill.

428    In all the circumstances, I reject Ms Norvill’s evidence that Mr Rush made any sexual or sexist remarks to, or directed any lewd gestures at, either Ms Nevin, Ms Buday, Ms Thomson, Ms Gilbert or indeed any of the other female members of the cast and crew. Ms Norvill’s willingness to make such allegations in her evidence, apparently for the first time, did not reflect well on her credibility as a witness or the reliability of her evidence generally.

Ms Norvill’s evidence concerning conversations she had with Ms Thomson, Ms Nevin and Mr Armfield

429    In the course of her evidence, Ms Norvill suggested that she had conversations with Ms Thomson, Ms Nevin and Mr Armfield in relation to Mr Rush’s behaviour. Her version of events was disputed by, or was at least inconsistent with, the evidence of Ms Nevin and Mr Armfield. Ms Thomson was not called to give evidence.

Conversation with Ms Thomson

430    Ms Norvill’s evidence was that, during the technical production week, which commenced on about 16 November 2015, she had a conversation with Ms Thomson. During that conversation, Ms Norvill said to Ms Thomson: “how do you cope with Geoffrey’s behaviour?” According to Ms Norvill, Ms Thomson replied: “just ignore it and laugh it off”.

431    As has already been noted, Ms Thomson was not called to give evidence. The terms of the conversation, on Ms Norvill’s account, were also somewhat unclear. Ms Norvill did not specify to Ms Thomson what aspect of Mr Rush’s behaviour she was adverting to. Perhaps more significantly, this evidence must also be considered in light of the fact that no other witness supported or corroborated Ms Norvill’s evidence concerning Mr Rush’s alleged behaviour towards Ms Thomson. Indeed, the balance of the evidence was, for the most part, entirely inconsistent with it.

Conversations with Ms Nevin

432    Ms Norvill gave evidence that she had a conversation with Ms Nevin, during the course of the production of King Lear, during which she referred to sexual harassment. That conversation was said to have occurred at about the same time as Ms Norvill claimed she had the conversation with Ms Thomson which has just been referred to. Ms Norvill’s evidence was as follows:

And then do you remember having a conversation with Robyn Nevin about the same time?---Yes, I do.

And she played The Fool of course in the production?---Yes, she did.

This time, do you remember where that conversation was?---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 - - -

- - - at the stage where you were in Ms Nevin’s dressing room. She was wearing her tight, sparkly Marilyn Monroe dress - - -?--- Marilyn Monroe, yes.

Yes?---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”.

And, incidentally, was that before the show or after the show or do you remember when it was?---Well, it must have been before, because that’s her first outfit.

433    Ms Norvill did not refer to this conversation with Ms Nevin in her witness statement. Her evidence was that she did not include this in her statement because she did not refer to Mr Rush in her conversation with Ms Nevin.

434    Ms Nevin denied having any conversation with Ms Norvill during the course of the rehearsals or performances of King Lear in which Ms Norvill referred to sexual harassment.

435    It is perhaps unnecessary to make any finding in relation to this conversation. Even on Ms Norvill’s account, she did not refer to Mr Rush during the conversation. Nevertheless, given some of Ms Norvill’s other evidence concerning Ms Nevin, I should indicate that I am inclined to accept Ms Nevin’s evidence that no such conversation occurred. I am not, on balance, satisfied that it did. 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.

436    Ms Norvill also gave evidence about a conversation she said that she had with Ms Nevin when the two of them were acting together in another STC production, All My Sons, in about mid-2016. That play was performed in the same theatre in which King Lear had been performed. Ms Norvill’s evidence was that, before one of the performances, she was in Ms Nevin’s dressing room and they had a conversation about the atmosphere or experience of King Lear. Ms Norvill’s evidence of what was said was as follows:

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

MR BLACKBURN: Yes?---Okay. I told Robyn that I had been harassed by Geoffrey during the show and that I thought it was sexual harassment.

And what did Ms Nevin say to you?---Ms Nevin said to me, “I didn’t think Geoffrey was doing that anymore. Poor Jane”.

437    Ms Nevin denied, in a fairly emphatic manner, that a conversation in those terms occurred. Ms Nevin gave evidence of two conversations she had with Ms Norvill during the production of All My Sons. One of those conversations concerned Ms Norvill’s concerns about one of her colleagues or friends. Ms Nevin’s evidence in relation to that conversation was as follows:

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?---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 also produced by the Sydney Theatre Company, and she was very concerned about that. I asked if she wanted me to do anything about it. She said, “No”.

Well, the production that she was upset about was Lear, was it not?---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.

438    Ms Nevin also gave evidence about another conversation with Ms Norvill which concerned Ms Norvill’s general unhappiness during King Lear. She denied, however, that Ms Norvill referred to sexual harassment or inappropriate behaviour during that conversation. Her evidence about that conversation was as follows.

But you see, what I’m putting to you, Ms Nevin, is that in the course of the production of All My Sons, you had a conversation with Norvill on the subject of sexual harassment?---No.

All right?---There was no mention of sexual harassment.

Well, the evidence you’ve just given is that there was evidence of - - -?---Not – no – not. I beg your pardon. There was no – no suggestion of sexual harassment in the conversation with Ms Norvill when she was tearful. In the subsequent conversation when we were backstage waiting to go on the dark whispering, she told me about this unfortunate experience with her friend. That was sexual harassment.

All right. And so, let’s go to the first conversation when she was tearful?---Yes.

That was a conversation about sexual harassment; I put to you?---No. I just said that was not about sexual harassment. She was tearful. I said, “What’s the matter”. She said, and I’m paraphrasing, “Being back here reminds me of the stuff,” – trouble with Geoffrey or the problem or the something which I took to be the difficulties she was having with Cordelia, and she had great struggles. She was very unhappy in the role. And I also was reminded of my unhappiness during Lear, so I kind of understood what she meant as far as that’s all I understood. I didn’t leap to the conclusion it was sexual harassment.

But she said to you, didn’t she, that the problem was one of – she may not have used the word sexual harassment but - - -?---No. She certainly didn’t. There was no mention - - -

- - - inappropriate behaviour?---No. She didn’t say inappropriate behaviour.

But she indicated to you that it was a sexually inappropriate behaviour that---?---No. She didn’t indicate to me. There was no sense of sexual - - -

No. No. Can you please let me finish my question?---I beg your pardon.

Thank you. She indicated to you, didn’t she, that it was inappropriate behaviour of a sexual kind that she was upset about?---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 – illusion or reference made to sexual – anything sexual.

You said a moment ago that she made a reference to unwanted attention. Sorry. Was that what she indicated, unwanted attention?---No. Absolutely not.

So she was in tears; is that right?---Yes.

And she said she had had a bad time or was it something of that kind?---She didn’t say she had a bad time. She said, “This reminds me of the difficulty or the problems or – with Lear”.

And - - -?---It could have been anything.

And what, do you say you didn’t ask her about that, what she meant?---Well, I would have, but somebody came into the room who was unknown to both of us with a wig or something, and I didn’t continue the conversation because I assumed, perhaps, incorrectly, but I assumed she wouldn’t want to reveal her distress in front of a member of staff who we didn’t know.

Well - - -?---And I obviously didn’t – I just said, well, you know, “I will see you later”. So it wasn’t something that I felt that I needed to get to the bottom of.

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?---Absolutely not. She did not infer that at all in any way.

439    As can be seen from this extract from Ms Nevin’s evidence, her denial that a conversation of the sort described by Ms Norvill occurred was clear and emphatic. Ms Nevin also denied that she said, during that conversation, “I thought Geoffrey had stopped doing that. Poor Jane”.

440    It is difficult to resolve the conflict in the evidence of Ms Norvill and Ms Nevin concerning the terms of this conversation. The issue is complicated by the fact that Ms Norvill was not cross-examined specifically about her version of the conversation with Ms Nevin. Plainly Ms Norvill and Ms Nevin had a conversation during which Ms Norvill was upset and referred to her unhappy experience during King Lear. But did Ms Norvill refer to sexual harassment, inappropriate behaviour or unwanted attention on the part of Mr Rush?

441    Nationwide and Mr Moran submitted that Ms Norvill’s version of the conversation should be accepted. They contended that Ms Norvill’s evidence concerning the conversation was supported by the evidence concerning a text message that Ms Nevin sent to Ms Norvill at the time of the publication of the first of the Telegraph stories concerning Mr Rush. It will be recalled, of course, that the story did not name the complainant. Ms Nevin’s text message, which was sent at 4.31pm on 1 December 2017, was in the following terms:

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

442    It is readily apparent that, by the time of this text message, Ms Nevin knew that Ms Norvill was the complainant. It does not necessarily follow, however, that Ms Nevin’s awareness came about as a result of her conversation with Ms Norvill during the production of All My Sons, as Nationwide and Mr Moran’s submission effectively implied. Ms Nevin frankly admitted in her evidence that she was unable to recall or explain how she was aware that Ms Norvill was the complainant at that time. She denied, however, that her knowledge came about as a result of her conversation with Ms Norvill during All My Sons.

443    One possible explanation is that Ms Nevin learnt that Ms Norvill was the complainant from Ms Menelaus on the day prior to the first publication. It appears that Mr Rush and Ms Menelaus were aware that Ms Norvill was the complainant by the afternoon or evening before the first publication. That is because in an email sent at 5.06 pm on 29 November 2017, Mr Moran advised Mr Rush’s agent, Ms Ann Churchill-Brown, that it was his understanding that Ms Norvill “claims Mr Rush touched her inappropriately on a number of occasions”. Mr Rush’s evidence was that Ms Churchill-Brown told him about Mr Moran’s email within minutes of her receipt of it. Ms Menelaus’ evidence was that she was with Mr Rush at that time. They plainly discussed the contents of the email. Ms Menelaus’ evidence was that she knew the identity of the complainant on the day before the article “through the letter that was sent to Anne Churchill-Brown”. Ms Nevin’s evidence, although fairly vague, was that she thought that she and Ms Menelaus had been in contact via text or email before the first publication. If that was the case, it is likely that Ms Menelaus would have told Ms Nevin that Ms Norvill was the likely complainant.

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.

445    While the issue is not easy to resolve, on balance, and having regard to the evidence as a whole, I prefer Ms Nevin’s evidence to Ms Norvill’s evidence when it comes to the conversation they had during the production of All My Sons. On the one hand, I found Ms Nevin’s evidence concerning that conversation to be clear and emphatic. On the other hand, I found Ms Norvill’s evidence concerning her conversations with Ms Nevin to be somewhat unreliable for essentially two reasons.

446    First, and perhaps more significantly, Ms Norvill’s evidence concerning Ms Nevin was rather inconsistent. On the one hand, she appeared to assert, or expressed a belief, that Ms Nevin, enabled or was complicit in Mr Rush’s inappropriate behaviour because she was aware of it but did nothing about it. On the other hand, she maintained that Ms Nevin was always kind to her. It is difficult to see how those two propositions can sit comfortably together.

447    Second, Ms Norvill’s version of the conversation during All My Sons also appears to be somewhat improbable in light of Ms Nevin’s evidence generally. According to Ms Norvill, Ms Nevin said “I didn’t think Geoffrey was doing that anymore”. That implies that she somehow knew or believed that Mr Rush had sexually harassed other people in the past; that is, prior to the allegations made by Ms Norvill. It was, however, never put to Ms Nevin in cross-examination that she in fact knew or believed that Mr Rush had sexually harassed anyone in the past. Indeed, the evidence that Ms Nevin gave concerning Mr Rush’s reputation, which will be discussed in more detail later, suggested that she had no such knowledge or belief. It is difficult to accept that Ms Nevin could have given the evidence she gave about Mr Rush’s reputation if she had any such knowledge or belief. In those circumstances it is difficult to accept that Ms Nevin would have said the words attributed to her by Ms Norvill. It should also be added that there was no evidence to suggest that Mr Rush had in fact ever sexually harassed anyone in the past. Nor was that proposition put to Mr Rush in cross-examination.

448    I am conscious that Ms Norvill’s evidence concerning her conversation with Ms Nevin during All My Sons was not directly challenged in cross-examination. I do not suggest that she was being untruthful about her conversation with Ms Nevin. On balance, however, and having regard to the findings that I have made in relation to the reliability of the evidence given by Ms Norvill and Ms Nevin generally, I prefer the evidence of Ms Nevin concerning the terms of the conversation they had during All My Sons. I do not consider that Ms Norvill’s evidence concerning that conversation was reliable.

449    I should finally note that Ms Nevin was questioned in cross-examination about why, at the time she sent her text message to Ms Norvill, she was not angry with Ms Norvill for making allegations against her good friend, Mr Rush. Ms Nevin’s evidence was that her primary concern at the time was Ms Norvill’s welfare, because she knew that Ms Norvill would be in a terrible state as a result of the public revelation of her complaint. She was not angry with Ms Norvill, she was angry with the STC. She strenuously maintained that she had not seen anything that would justify Ms Norvill’s complaint. I accept Ms Nevin’s evidence in that regard.

Conversation with Mr Armfield

450    Mr Armfield’s evidence was that Ms Norvill had never reported anything to him concerning Mr Rush or his behaviour. He said that the only personal issue that Ms Norvill had reported to him concerned the fact that a friend of hers was visiting the show. His evidence was:

Did she ever report any personal issue to you?---I remember she had a friend coming in to – to see the show that she was very anxious about in – who had – a friend who was coming out from America she was – had invited to see the show and that she wasn’t sure if it was – when she came out if she wanted her to come and – and see it.

But nothing to do with Mr Rush?---Nothing to do with Mr Rush, no.

451    Ms Norvill did not have any recollection of having a conversation with Mr Armfield about her friend. Her evidence in that regard was:

MR McCLINTOCK: You had a friend visiting from the United States, didn’t you?---My girlfriend was visiting me, yes.

Yes. I don’t want to be intrusive or anything like that, but there were problems, weren’t there?---I beg your pardon?

There were problems in the relationship?---When my girlfriend came over, it was halfway through the run and I wasn’t in a very good place. I wasn’t available to her communicatively or emotionally and our relationship started to break down. Yes.

And – but you raised your concern about her coming to the play with Mr Armfield, didn’t you?---I don’t remember that conversation.

452    Ms Norvill’s evidence was, in effect, that she did not feel that she could raise the problems she was having with Mr Rush with Mr Armfield because Mr Armfield and Mr Rush had been friends for 30 years and she believed that Mr Armfield would always defend Mr Rush. She also said that she believed that Mr Armfield was aware of Mr Rush’s behaviour because of the “note” that Mr Armfield gave Mr Rush after one of the preview performances. The evidence in relation to that note is considered later. Suffice it to say at this stage that, Ms Norvill’s account of that note was not supported by the evidence of any other witness, including Mr Armfield.

453    In any event, Ms Norvill gave evidence about a conversation she said she had with Mr Armfield which she assumed concerned Mr Rush. Her evidence in that regard was:

HIS HONOUR: Can I just ask you, Ms Norvill – sorry for interrupting, Mr McClintock – you just said earlier that you weren’t in a very good place. Is that – do you recall giving that evidence?---Yes.

Now, that was something that could possibly have impeded you giving a proper performance in your role as Cordelia, wouldn’t it?---Absolutely not. I’m a professional and I deal in emotions.

I see?---So if I’m having a difficulty at home or in my life, I’m able to step into the theatre and put that aside. I’m focused. I’m present. I’m very driven and I love my job. That has always come first in life, so no, it wouldn’t have affected my ability to be present and a part of my – there.

The reason I ask you the question is whether that was something you thought – if you weren’t in a good place, it was something you thought that you would raise with Mr Armfield?---If I wasn’t in a good place?

Yes?---Yes, yes, I remember having – I remember Neil being in my dressing room and saying that I wasn’t in a good place. He asked; I said I wasn’t in a good place. My assumption was that he was speaking about Geoffrey because he had given the note to Geoffrey. That was what I thought the conversation was about.

454    The following points may be made about this evidence.

455    First, despite apparently assuming that this conversation concerned Mr Rush, Ms Norvill did not include an account of this conversation in her witness statement. Nor did she refer to it during her evidence-in-chief.

456    Second, and more significantly, Ms Norvill did not say what she said to Mr Armfield when he raised the issue of her not being in a “good place” with her. If this conversation occurred, and if Ms Norvill was not, in fact, in a good place as a result of any behaviour by Mr Rush, it appears rather strange that she apparently did not, at this point at least, open up to Mr Armfield, about the effect that Mr Rush’s behaviour was having on her, despite the fact that she knew that Mr Armfield and Mr Rush were good friends. Ms Norvill also knew that Mr Armfield was a well-respected director and a consummate professional. She might reasonably have expected that he would want to know if one of the actors in the play was not in a “good place” because she was being sexually harassed, if indeed that was the case.

Other evidence

457    As has already been noted, Ms Norvill’s evidence concerning the first allegation suggested that the alleged incident was witnessed by the entire cast and some members of the crew. Aside from Ms Norvill and Mr Winter, however, Nationwide and Mr Moran did not call any other members of the cast or crew to give evidence concerning the incident.

458    The only other evidence worth noting in the context of this alleged incident is the evidence of what Ms Norvill told Ms Crowe about Mr Rush’s behaviour during their meeting on 5 April 2016. Ms Norvill does not appear to have referred specifically to this allegation during her meeting with Ms Crowe. All she appears to have said to Ms Crowe about Mr Rush’s behaviour during the rehearsals was that, when rehearsals began, “it [Mr Rush’s behaviour] started out with mild commentary of her [Ms Norvill] in the room, suggestive comments and flirting”. That description is hardly consistent with Ms Norvill’s description of this particular incident in her evidence.

Findings

459    I am not satisfied, on the balance of probabilities, that this alleged incident occurred during rehearsals. I am not satisfied that the evidence of Ms Norvill and Mr Winter in respect of this incident was credible or reliable. I accept the evidence Mr Rush, Mr Armfield, Ms Nevin and Ms Buday that the incident as described by Ms Norvill did not occur.

460    My reasons for so finding are numerous.

461    First, the preponderance and weight of the evidence suggests that the incident did not occur. Mr Rush, Mr Armfield and Ms Buday, either directly or implicitly, denied seeing any such incident occur. Ms Nevin did not recall seeing any such incident and made it plain that if she had, she would have recalled it. Even putting Mr Rush’s denial to one side for the moment, there is absolutely no reason to doubt the evidence of Mr Armfield, Ms Nevin and Ms Buday. Their evidence in relation to this incident was scarcely challenged in cross-examination, if it was challenged at all. No persuasive submission was advanced for why their evidence should not be accepted.

462    Second, 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.

463    Third, and significantly, I have considerable doubts about the reliability of Ms Norvill’s evidence concerning this incident, and considerable doubts and concerns about the reliability of Ms Norvill’s evidence, and her credibility as a witness, generally. On the whole, she revealed herself to be a witness who was prone to exaggeration and embellishment. The clearest example of this was her evidence that the other members of the cast, and the crew generally, were complicit in, or enabled, Mr Rush’s behaviour as described by her. For the reasons already given, I reject that evidence. Another example is Ms Norvill’s evidence that Mr Rush engaged in similar lewd and inappropriate behaviour towards other female members of the cast, including Ms Buday, and female members of the crew, including Ms Gilbert. As I have already made plain, I also reject that evidence.

464    Fourth, Ms Norvill’s evidence concerning this incident was inconsistent with, or at least not supported by, the documentary evidence recording more contemporaneous statements made by her concerning Mr Rush and his behaviour, including during rehearsals. She told a journalist in mid-November 2015 that she appreciated Mr Rush’s playfulness and loved his ebullience. She told another journalist in late November or early December 2015 that working with Mr Rush was exciting, that he was generous and cheeky, which was “perfect” for her, and that she felt privileged to work with him.

465    The statements that Ms Norvill made to journalists at the time of the rehearsals in King Lear are discussed in more detail later. It is difficult to imagine that she could have said any of those things if the incident described by her had in fact occurred. Even the description of Mr Rush’s behaviour that she appears to have given to Ms Crowe in April 2016 is not consistent with the serious description of this incident which she gave in her evidence.

466    The evidence as a whole does suggest that Mr Rush was at times ebullient, enthusiastic and playful during the rehearsals. It appears that at times he joked around. He admitted as much when he told the journalist, in mid-November 2015, that rehearsal was a “playpen” for him to do “cheap jokes”. The evidence as a whole, however, suggests that Mr Rush’s playfulness and ebullience during rehearsals was appreciated and seen by the cast and crew as a positive thing. The evidence as a whole does not support the allegation, and Ms Norvill’s evidence, that Mr Rush’s jokes or playfulness was directed at Ms Norvill, or was of a lewd, sexual or sexist nature, or could be characterised as amounting to sexual harassment as Ms Norvill effectively asserted. Indeed, the evidence as a whole is quite to the contrary.

Allegations two and three: Sexual innuendo and lewd gestures during the rehearsals

467    It is convenient to deal with the second and third allegations together. Both involved general allegations of inappropriate behaviour of a sexual nature by Mr Rush towards Ms Norvill during the rehearsal period. As has already been noted, the rehearsal period ran from about 12 October to 21 or 23 November 2015.

468    The essence of the second allegation is that, during the rehearsal period, Mr Rush regularly made comments or jokes about Ms Norvill or her body which contained sexual innuendo. Those comments were said to have been made in the presence of at least some members of the cast and crew.

469    The essence of the third allegation is that every few days during the rehearsal period Mr Rush made lewd gestures in Ms Norvill’s direction. On 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.

Ms Norvill’s evidence

470    The rehearsal period ran from 12 October to 21 or 23 November 2015. The effect of Ms Norvill’s evidence was that Mr Rush made sexist remarks and lewd gestures to her virtually daily throughout the rehearsal period. Indeed, as discussed in the context of the first allegation, the effect of Ms Norvill’s evidence was that he made similar remarks and gestures to other members of the female cast and crew throughout that period.

471    Ms Norvill’s evidence concerning this conduct included the following:

All right. Now, in the rehearsal period I want to ask you some questions about some things that happened in the rehearsal period. If you could just turn your mind to that. First of all, do you recall did Mr Rush make some gestures in your direction, or towards you?---Yes, he did.

Could you tell the court what they were?---I started noticing that Geoffrey would make these sexual, kind of, gestures toward my body when I would come into work, or when – you know, when he would greet me in the start of the day he would, you know, kind of comment on my body with – he would, like, curve the shape of my hips and - -

Just pausing there, Ms Norvill. The witness is making hourglass shapes with her hand?---Mmm.

Is that - - -?---That’s right. And kind of groped the air.

Now, just pausing there. “Groped the air.” Could you just tell the court what you actually observed him doing when you’re talking about groping the air?---He would look at me and he would smile and cup his two hands like – and he would usually, you know, lick his lips and raise his eyebrows, bulge out his eyes. Sometimes he would, like, growl. I remember him calling me yummy.

All right. Do you remember some other words that he used apart from yummy?---Scrumptious.

Just going back to the moment where you said he would cup his hands. First of all, how – when he did that at what level were his hands?---His level was – his hands were level to his chest.

And what about what level to you?---Level to my chest.

All right. And when you say “cupped his hands”, were his hands facing outward, or inward, or – from your perspective I mean?---From my perspective - - -

Yes?--- - - - his hands were facing outward.

Towards you?---That’s right.

Right. Yes. And level with any particular part of your body?---They were level with my breasts.

472    Ms Norvill described how those comments and gestures made her feel as follows:

All right. Perhaps I should ask this question: the – what you described – the descriptions, the hand movements, the facial movements, the occasional growling – how did that make you feel?---Compromised. And pressured. And, again, I have to say, confused. Because I – I just didn’t really understand why Geoffrey would make fun of my body, or a comment on my body, if he was my friend and respected me as a colleague.

473    Ms Norvill claimed that the gestures or comments occurred on a daily basis. As was noted in the context of the first allegation, Ms Norvill also claimed that Mr Rush made similar gestures or comments to other female members of the cast and crew.

474    Ms Norvill claimed that some of the sexual innuendo related to the fact that she played the character of the daughter of Mr Rush’s character in the play. Her evidence in that regard was:

…. You, of course, played his daughter in the play?---Yes, I did.

Yes. Did – was that the subject of any remarks or – that you recall?---Yes, there was an ongoing kind of – yes, there was ongoing commentary around the fact that I was his daughter and, I guess, coupled with the sexual innuendo, it was strange.

HIS HONOUR: Well, what do you mean by “sexual innuendo”? Are you referring to what you had said earlier about the sorts of things you had seen him do and say? --- Yes, that’s right. The – the sexual kind of gesturing and - - -

Mr Winter’s evidence

475    Mr Winter’s evidence concerning the rehearsal period was strictly limited to the specific incident which was the subject of the first allegation. It was considered earlier in that context. His evidence otherwise provided no support for or corroboration of Ms Norvill’s broader account of Mr Rush’s conduct throughout the rehearsal period. Indeed, he was not asked any questions during his evidence-in-chief about Mr Rush’s general behaviour during rehearsals.

476    Mr Winter’s evidence was also, at least in some respects, inconsistent with Ms Norvill’s account. It is, in all the circumstances, almost impossible to see how Mr Winter could have considered that Mr Rush had been an “exemplary company leader” who had “led the company well” had he been witness to the sort of daily conduct described by Ms Norvill.

Mr Rush’s evidence

477    Mr Rush denied making comments about Ms Norvill’s body, or using sexual innuendo, or making lewd gestures, or any of the other specific behaviour or gestures that Ms Norvill referred to in her evidence.

478    Nationwide and Mr Moran placed heavy reliance on the fact that Mr Rush did not deny that he might have used the words “scrumptious” or “yummy” when speaking to Ms Norvill during the rehearsal period. His evidence in that regard was as follows:

And also at that time in the rehearsal period you made very frequent comments, didn’t you, about how Ms Norvill looked or what was she wearing?---Not to my knowledge, no.

You said things to her like, “You’re looking very scrumptious today”?---I don’t recall saying that, but I might have said that. I was in a – always in a very chirpy mood because I approached the rehearsals with a great deal of openness and energy. Sometimes you have icebreakers with people that you don’t know particularly well.

479    It is important to emphasise, however, that it was subsequently put to Mr Rush that he had used the words “scrumptious” and “yummy” contemporaneously with the lewd gestures that Ms Norvill had referred to in her evidence. Mr Rush denied making any such lewd gestures. He also specifically denied using the words “scrumptious” and “yummy” while making any such gestures.

480    That is significant. It may be accepted that in some contexts, and in some circumstances, it may be inappropriate for a man to refer to a woman’s appearance in a workplace setting as “scrumptious” or “yummy”. However context is everything. I do not accept that it is invariably or necessarily inappropriate, let alone “scandalously inappropriate” to use such words in a workplace setting when talking to a woman. Nor do I accept that it would necessarily constitute “inappropriate behaviour of a sexual nature”. Had Mr Rush used those words while making any of the gestures referred to by Ms Norvill in her evidence, it would undoubtedly have been “scandalously inappropriate” and would clearly have constituted “inappropriate behaviour of a sexual nature”. Mr Rush denied, however, using the words in that context.

481    Another contextual consideration is that, while Mr Rush was obviously older than Ms Norvill, and was a far more experienced actor, Ms Norvill was in her early thirties at the time of King Lear and had been a professional actor for about 10 years. Mr Rush and Ms Norvill had known each other for many years and had, for the most part, been on close and friendly terms. They had in the past communicated in quite personal and familiar terms. That can be seen in particular in their exchange of text messages throughout 2014. More will be said about those text messages later. It suffices at this stage to note that, in the course of those text messages, as part of a game involving the use of homophones for their respective names, Ms Norvill had referred to Mr Rush as, amongst other things, “Jet Lee Thrust”, “God of Generic Lust”, “GR BANG BANG”, “Giddy McHeadRush”, “Jersey Cream Filled Puff” and “Galapagos Lusty Thrust”. She referred to herself as “Meringue Jam Novelty” and “Ear and Jam Novelty”. Mr Rush, on the other hand, had referred to Ms Norvill as, amongst other things, “Ear and Jam Novelty”, “Erogenous Navel” and “Error Ginger Nutella”.

482    Ms Norvill did not suggest that there was anything inappropriate about the terms of those text messages. Indeed, quite the contrary. Her evidence in relation to those parts of the text messages was as follows:

As a matter of curiosity, you wouldn’t have found it offensive if he called you goddess of generic lust, would you?---I don’t think that these messages were sexual, if that’s what you’re implying.

You don’t think there’s something about – I’m not suggesting anything at this stage, Ms Norvill, but you don’t think there’s – you say there’s nothing sexual about “generic lust”?---It was a play on words between two friends.

HIS HONOUR: What about “Gently [Jet Lee] Thrust”?---A rocket ship.

MR McCLINTOCK: “Thrust” doesn’t occur to you to have a slight sexual overtone, Ms Norvill?---I don’t think the messages were inappropriate.

I’m not suggesting they’re inappropriate, Ms Norvill. I’m asking you whether you think “thrust” had – or a better – had a slight sexual overtone?---“Gently [Jet Lee] Thrust” was to do with a rocket ship. “God of generic lust”, sure, that could have been sexually flirtatious. Somebody could have - - -

They’re plainly sexually flirtatious, aren’t they, Ms Norvill?---There’s nothing wrong with that.

483    Ms Norvill eventually conceded that some of the references in the text messages – including her reference to Mr Rush as “Galapagos Lusty Thrust” could be perceived as “sexually – intellectually flirtatious”.

484    It should be emphasised that nobody suggested that the 2014 text messages between Ms Norvill and Mr Rush were in any way inappropriate or worthy of criticism. The point was, and is, that they provided important context, particularly in relation to the eighth allegation. They also provide some context in relation to the allegation that Mr Rush referred to Ms Norvill as “scrumptious” or “yummy”. If Mr Rush did in fact ever use the words when describing Ms Norvill, that must be considered in the context of the apparent nature of their relationship and the way they had spoken and referred to each other in the past. It would perhaps be fair to say that those words appear rather quaintly old-fashioned and harmless when compared with some of the language employed by Ms Norvill when communicating with Mr Rush, including “God of Generic Lust” and “Galapagos Lusty Thrust”, which would appear to employ an element of sexual innuendo, albeit in an apparently playful and humorous way.

485    Finally, it should be noted that Ms Norvill did not say anything in her witness statement about Mr Rush using the word “scrumptious” or “yummy”. Indeed, she said that she did not recall anything specific that Mr Rush said during the rehearsals. This appears to have been one of the things that Ms Norvill recalled after her statement was prepared. It nevertheless does tend to suggest that even Ms Norvill did not think that Mr Rush’s use of those word, if indeed he did use them, was particularly significant.

Mr Armfield’s evidence

486    As was noted in the context of the first allegation, Mr Armfield denied that he ever saw or heard Mr Rush engage during rehearsals in any of the behaviour described by Ms Norvill in her evidence. He denied ever seeing Mr Rush hover his hands over Ms Norvill’s torso and pretend to caress or stroke her upper torso, denied ever seeing Mr Rush make groping gestures in the air with two cupped hands as if to simulate groping or fondling Ms Norvill’s breasts, and denied ever hearing Mr Rush make jokes or comments about Ms Norvill’s body, or make comments using sexual innuendo in relation to Ms Norvill.

487    As for the use of the words “scrumptious” or “yummy”, or commenting on the way Ms Norvill looked, Mr Armfield’s evidence was:

What you did observe, though, didn’t you, Mr Armfield, was Mr Rush commenting on the way Ms Norvill looked?---Never.

He said – on a number of occasions, he used the word “scrumptious” to describe the way Ms Norvill looked, and I meant that to her face, in front of her?---I never witnessed that.

And he said that she looked yummy on a number of occasions?---I have heard the word “yummy” used in a rehearsal room by Patrick White about John Gaden. I I didn’t hear Geoffrey describe Eryn Jean as yummy.

488    Nationwide and Mr Moran did not advance any reason for why Mr Armfield’s evidence about this issue should not be accepted.

Ms Buday’s evidence

489    As discussed earlier in the context of the first allegation, Ms Buday denied witnessing Mr Rush do any of the things during rehearsals that Ms Norvill described in her evidence, including making lewd gestures in her direction or towards Ms Norvill’s body, or make jokes about Ms Norvill’s body, or comment about the way she was dressed. She also said that she did not hear Mr Rush describe Ms Norvill, in her presence, as looking “scrumptious”, or hear Mr Rush describe Ms Norvill as looking “yummy”.

490    Again, Nationwide and Mr Moran did not advance any, or any persuasive, reason why Ms Buday’s evidence should not be accepted.

Ms Nevin’s evidence

491    Aspects of Ms Nevin’s evidence concerning Mr Rush’s conduct or behaviour during the rehearsals have already been discussed in the context of the first allegation. Her evidence also included the following:

Now, do you recall at any time in the rehearsals seeing Mr Rush – or first of all hearing Mr Rush make comments about Ms Norvill’s body?---No.

Do you recall Mr Rush calling her scrumptious?---No.

Or yummy?---No.

And do you recall him ever sticking his tongue out at her?---No.

Do you recall him growling at her?---No.

Do you recall him using his hands towards Ms Norvill and making an hourglass - - -?---No.

- - - gesture towards her figure?---No.

Do you ever recall other members of the cast or crew telling Mr Rush to stop it?---Stop what? No. No.

Now, during the rehearsal period did Mr Rush ever make comments to you about your body?---No. Mr Rush has never made any comments to me about my body.

Did he ever make lewd gestures towards you throughout rehearsals?---No.

Or gestures you would consider to be lewd?---No.

Now, just thinking back about the things I’ve just asked you about the - - -?---I’m sure, though,

Mr Rush has told me in the past that I looked attractive or pleasing or something, I’m sure, because he’s – he’s very generous in his enthusiasm towards people.

And did you find that offensive at the time?---No. I’ve never found him offensive.

492    Ms Nevin’s evidence about those matters was not challenged at all in cross-examination. Ms Nevin’s evidence concerning these allegations was couched in terms of whether she recollected any of the alleged events occurring. It is, however, difficult to imagine that Ms Nevin would have forgotten any about such behaviour on the part of Mr Rush if she had in fact witnessed it.

493    Nothing that was raised in Ms Nevin’s cross-examination cast any doubt on the reliability of her evidence concerning Mr Rush’s behaviour during rehearsals.

Other evidenceMedia interviews and statements

494    It is relevant, in the context of these allegations, to consider some of the statements made by Ms Norvill during the media interviews shortly prior to the commencement of the performances. More will be said about those interviews in the context of the fourth allegation concerning Mr Rush’s statement that he had a “stage-door Johnny crush” on Ms Norvill. In the present context, however, it may be noted that in The Sydney Morning Herald article published on 19 November 2015, Ms Norvill was quoted as having said amongst other things, that she appreciated Mr Rush’s “playfulness” during rehearsals and:

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 are all on the same journey together.

495    It was also reported that Ms Thomson had said, no doubt in Ms Norvill’s presence, that the atmosphere in the rehearsal room had been “very light”.

496    By the time of that interview, the rehearsals were well underway. The statements made by Ms Norvill appear to be entirely inconsistent with her evidence about what went on in the rehearsal room. Ms Norvill gave some explanation for this inconsistency in her evidence. She claimed that the statements that she made to the interviewer about Mr Rush and the rehearsals were untrue and gave the following explanation for why she made them:

You said that to the journalist, didn’t you?---Yes, I’m reported to have said that.

Yes. No one put a gun to your head and made you say that, did they?---The reporter was there to – to get people into the show. I wasn’t going to criticise Geoffrey, I wasn’t going to criticise the rehearsal room, and you know what, I was probably hoping that that was true. I – I wanted Geoffrey to – sorry.

….

Was that true?---Neil and Geoffrey would work from moment to moment; I guess that’s true. We were on the same journey together – I guess that’s not true.

Why did you tell those untruths to the Herald, Ms Norvill?---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?

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.

498    That was also not the only occasion where Ms Norvill was reported to have said positive things about her experiences working with and alongside Mr Rush in King Lear. As was noted earlier, Ms Norvill also gave an interview to a Telegraph journalist on or shortly before 3 December 2015. By that time, the rehearsals had concluded and the performances of the play had begun. Ms Norvill was reported as having said, during that interview, that working with Mr Rush was “exciting” and:

“Geoffrey is just forever playful. Hes 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.

499    Ms Norvill agreed that she would have said what she was quoted as having said. She gave the following evidence about the apparent inconsistency between what she told the journalist about working with Mr Rush and what she claimed in her evidence to be her actual experiences:

You see, there’s no suggestion there of any fear or discomfort on your part about working with Mr Rush, is there, Ms Norvill?---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.

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.

Findings

502    I am not satisfied, on the balance of probabilities, that Mr Rush behaved during rehearsals in the way Ms Norvill described in her evidence. I am not satisfied that Ms Norvill’s evidence concerning Mr Rush’s behaviour towards her and others during the rehearsal period was credible or reliable. I am not satisfied that Mr Rush used sexual innuendo or sexist language, or made lewd or otherwise inappropriate gestures to Ms Norvill or any female members of the cast or crew during rehearsals. I accept the evidence of Mr Rush, Mr Armfield, Ms Nevin and Ms Buday that the behaviour as described by Ms Norvill did not occur.

503    My reasons for so-finding are essentially the same as the reasons given earlier in relation to the first allegation about the specific lewd conduct that Mr Rush was alleged to have engaged in during the rehearsal period. The following points bear repeating.

504    First, Ms Norvill’s evidence concerning Mr Rush’s allegedly sexist and inappropriate behaviour during the rehearsal period was entirely uncorroborated. Not even Mr Winter supported Ms Norvill’s broader evidence concerning Mr Rush’s behaviour during rehearsals. His evidence was directed at the single alleged incident which was the subject of the first allegation. As discussed earlier, he did not even appear to think that that incident was particularly significant.

505    As has already been noted, Mr Winter was not asked a single question about Mr Rush’s behaviour generally during the rehearsals when he gave his evidence-in-chief. It can, in those circumstances, be inferred that Mr Winter’s evidence would not have assisted Nationwide and Mr Moran in relation to those allegations. Indeed, it may be inferred that Nationwide and Mr Moran did not ask Mr Winter any questions about those allegations because they feared that it would have exposed facts unfavourable to their case: Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418; Mastronardo v Commonwealth Bank of Australia Ltd [2018] NSWCA 136 at [49]; Puels v Exelerate Funding Pty Ltd (2005) 214 ALR 616 at [38].

506    Second, the preponderance and weight of the evidence as a whole was firmly against acceptance of these allegations. It may be accepted that Ms Norvill did not suggest that all of the Mr Rush’s behaviour that she described was witnessed by others. Nevertheless, the general effect of her evidence was that Mr Rush’s lewd, sexist and inappropriate language and gestures were seen by at least some other members of the cast and crew. It was largely on that basis that she asserted that the other members of the cast and crew were complicit in or enabled Mr Rush’s behaviour, or that his conduct became normalised. Ms Norvill also specifically asserted that Mr Rush directed lewd comments and gestures towards other female members of the cast and crew. Not a single witness gave any evidence which corroborated Ms Norvill’s evidence in that regard.

507    Ms Norvill’s evidence concerning Mr Rush’s behaviour towards her and other female members of the cast and crew was not only uncorroborated; it was also directly and emphatically contradicted by the evidence of not only Mr Rush, but also Ms Nevin, Ms Buday and Mr Armfield. Ms Buday and Mr Armfield denied ever seeing Mr Rush engage in any such conduct and Ms Nevin did not recall ever seeing such conduct in circumstances where she plainly would have so recalled seeing it if it had in fact occurred. The credibility of Ms Nevin, Ms Buday and Mr Armfield and the reliability of their evidence about these allegations went effectively unchallenged in cross-examination. No persuasive reasons were given for why they should not be believed, or their evidence about these allegations should not be accepted. It was suggested that they might simply not have seen, or might have missed, some of the conduct described by Ms Norvill. Given the nature, character and frequency of the behaviour described by Ms Norvill, that possibility was highly unlikely.

508    Third, Ms Norvill’s evidence about Mr Rush’s behaviour during the rehearsals was inconsistent with, or at least not supported by, the evidence concerning her more contemporaneous statements about working with Mr Rush and Mr Rush’s behaviour during rehearsals. I do not accept Ms Norvill’s explanations for her prior inconsistent statements about Mr Rush to the journalists. It may be accepted that she was obliged to give promotional interviews. It might also be accepted that it would not be reasonable to expect her to make negative statements to the journalists, or to use the interviews as a forum to advance allegations against Mr Rush. It does not follow, however, that she was obliged to make positive statements about working with Mr Rush, let alone the highly complimentary ones that she did in fact make.

509    Fourth, for the reasons already given, the impression I gained about Ms Norvill was that she was a witness who was prone to exaggeration and embellishment. I do not accept that she was an entirely credible witness, or that the evidence she gave about Mr Rush’s conduct was reliable. I consider that the evidence Ms Norvill gave concerning Mr Rush’s behaviour during the rehearsals was exaggerated and unreliable. I also consider that her evidence about other members of the cast and crew being complicit in, or enabling, Mr Rush’s allegedly inappropriate conduct towards her and other female members of the cast or crew was unreliable and must be rejected.

510    Finally, I should perhaps add that I accept Ms Norvill’s evidence that Mr Rush used the word “scrumptious” at some stage during the rehearsals, particularly in light of the fact that Mr Rush agreed that he “might have” said something like “you’re looking scrumptious today” to Ms Norvill. I reject, however, that Mr Rush used that word in a lewd or offensive way. I also reject the suggestion that Mr Rush used that word while making lewd or offensive gestures towards Ms Norvill. If that was the import of Ms Norvill’s evidence, it is rejected for the reasons I have already given for rejecting her evidence that Mr Rush engaged in any such lewd, offensive or sexist behaviour during rehearsals.

511    I accept Mr Rush’s evidence that, if he did use the word “scrumptious” when speaking with Ms Norvill, he did so because he generally approaches rehearsals in a “chirpy” and energetic way. The effect of his evidence was that if he said the word “scrumptious” he would have intended the comment to be a positive affirmation during the rehearsal period, not in any way offensive or negative. While in some circumstances the use of the word “scrumptious” to describe someone’s appearance may be considered to be sexist or offensive, much depends on the context, including the nature of the relationship between the people involved and the particular circumstances in which the word was used. I have rejected that Mr Rush used the word “scrumptious” in the context or circumstances alleged by Nationwide and Mr Moran, or in the circumstances and context described by Ms Norvill in her evidence.

512    If Mr Rush did use the word “scrumptious” in the context and circumstances he described in his evidence, I do not consider that it constituted “scandalously inappropriate behaviour”, let alone “scandalously inappropriate behaviour of a sexual nature”. Furthermore, if Mr Rush did use the word “scrumptious” in the context and circumstances he described, it would not make him a pervert or “sexual predator”, or justify any of the other imputations conveyed by Nationwide and Mr Moran’s publications.

Allegation four: “stage-door Johnny crush”

513    There was no dispute that, during the interview with The Sydney Morning Herald journalist in November 2015, Mr Rush said that he had a “stage-door Johnny crush” on Ms Norvill. That comment was quoted in the resulting newspaper article.

514    There are three issues that arise in relation to this allegation.

515    The first concerns Mr Rush’s state of mind when he made that remark. Nationwide and Mr Moran contend that in making this remark, Mr Rush intended to depict Ms Norvill as a “sexual object rather than as a serious actress” and that Mr Rush knew that his comment would make Ms Norvill “feel uncomfortable, embarrassed and compromised”.

516    The second issue concerns the nature of the statement and the effect that the statement had on Ms Norvill. Nationwide and Mr Moran contend that the statement in fact depicted Ms Norvill as a “sexual object” rather than a serious actress, and made Ms Norvill feel uncomfortable, embarrassed and compromised.

517    The third issue is whether, in light of the findings concerning Mr Rush’s state of mind and the effect that the statements had on Ms Norvill, it could and should be concluded that Mr Rush’s conduct in that regard constituted “scandalously inappropriate behaviour”, or “scandalously inappropriate behaviour of a sexual nature”, or made him a pervert or a sexual predator.

Ms Norvill’s evidence

518    Ms Norvill’s evidence concerning the interview included the following:

And do you recall something in particular that Mr Rush said in the course of that interview?---Yes. I remember that he said that he “hand-picked us”, and I remember thinking that was a really strange thing to say considering that he was – we were being – it would definitely be reported on, we were being interviewed and that there were three incredibly talented and able actress, you know.

Was there something else that he said?---Yes. He – Geoffrey said that he had a stage-door Johnny crush on me.

And what did you think when he said that? I mean, how did you feel when he said that?---Humiliated, put on the spot, considering that we were, again, being interviewed in a professional context. It made me feel uncomfortable and disrespected.

Did you say anything about it in the course of that interview? Did you respond to that remark?---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.

519    Ms Norvill’s evidence about this comment in cross-examination was as follows:

Go, if you would, to tab 116. You read that article yesterday, didn’t you, in the witness box?---Yes.

And I won’t ask you to read it again, but you would agree with me that Mr Rush says a series of complimentary things about you, Ms Buday and Ms Thomson as actors, doesn’t he?---Yes.

One of the complimentary things about you – I withdraw that. He also used, as we know, the – or made the statement, he had a “stage-door Johnny crush” on you, didn’t he?---Yes. He did.

You knew that that was nothing more than a light-hearted quip, didn’t you?---No. It made me feel uncomfortable.

I see. A discomfort that you did not express at the time, you say?---We were being interviewed by a journalist.

Nor, indeed, at any time, if your evidence yesterday is correct, Ms Norvill, during the course of the play that is, of course; that’s right, isn’t it?---I didn’t speak to Geoffrey during the course of the play, except to say, “Please stop that.”

Mr Rush’s evidence

520    Mr Rush gave the following evidence concerning the interview and the expression “stage-door Johnny crush”:

What do you say about that? It says:

“I developed an immediate stage-door Johnny crush”, he confesses, “but you won’t print that, will you?” –

Yes?---I knew I was using a very outmoded expression. It’s because I had talked about the number of things which aren’t mentioned in this article. But I wasn’t stalking her. I just happened to see her in a number of productions. It’s very hard to get irony into print, hence the tag:

…but you won’t print that, will you?

“because I’m kind of pulling your leg, Alissa”. It was not laugh-out-loud funny, but it was intended to be whimsical.

521    He gave the following more detailed explanation in the course of cross-examination:

There’s just one more question I need to ask you, Mr Rush, and that is your – the use of the expression “stage-door Johnny” in the interview that you gave prior to the commencement - - -?---Yes.

- - - of Lear. Now, a stage-door Johnny is a kind of starstruck person with a crush on one of the performers in the show, isn’t it? That’s the meaning of the term?---I think it dates back to early 20th century – World War I era – something like that.

Yes?---That is, it’s – that it’s derivation.

Yes. The word you use in the interview was – or the phrase you used was “stage- door Johnny crush”, wasn’t it?---Yes. In an ironic delivery. That may not come across in print.

Well - - -?---But I did add the tag to the journalist to go, “But you won’t print that, will you?” because I’m saying it – the frequency of the number of times I’ve mentioned in the interview, which she didn’t complete – I had seen this young actress a number of times. “It almost feels like I’ve got a stage-door Johnny crush but don’t print that, will you, because I haven’t. It’s just coincidence.”

Yes. But you see, Mr Rush, you didn’t say, “It almost feels like I had a stage-door Johnny crush on the actress,” did you? You said, “I immediately developed a stage- door Johnny crush,” when you saw her in A Midsummer Night’s Dream, wasn’t it?---Yes. It was in comparison to the virtues I had extolled about Ms Buday and Ms Thomson – its intention to make Ms Norvill feel good about being part of this company – of this triumvirate of interesting women that this play demands. It was flip.

What you said was:

I saw EJ play Ophelia in Hamlet for the MTC and I developed an immediate stage-door Johnny crush –

and then you followed that up with:

But you won’t print that - - -

?---I was a fan.

Yes. Well, what you said was “an immediate stage-door Johnny crush”?---I did. That’s what - - -

Yes?---That’s what’s in print. Yes.

Yes. And that’s what you - - -?---The implication being I liked her work. I thought she was good in the classical repertoire.

You also thought she was very attractive, didn’t you, I take it?---No. That wasn’t the implication.

522    The effect of Mr Rush’s evidence was that, consistent with the general tone and tenor of the interview as a whole, he intended the comment to be humorous and complimentary of Ms Norvill. He did not intend to offend her, or convey in any way that he was in fact “star struck”, let alone sexually attracted to Ms Norvill.

Other evidence

523    Mr Armfield’s evidence was that he recalled that Mr Rush, Ms Buday, Ms Thomson and Ms Norvill returned from the interview in “high spirits”. Ms Buday’s evidence was that she did not observe Ms Norvill to be in any discomfort either during or after the interview. It is readily apparent that Ms Buday did not consider that anything said by Mr Rush during the interview was in any way offensive or inappropriate. Neither Ms Buday nor Mr Armfield were cross-examined about the interview.

Findings

524    Nationwide and Mr Moran made virtually no submissions concerning this allegation. It can be dealt with shortly.

525    It is readily apparent from the nature and content of the article itself that the statement made by Mr Rush during the interview with The Sydney Morning Herald journalist in November 2015 about having a “stage-door Johnny crush” on Ms Norvill was intended by him to be a light-hearted and humorous way of praising Ms Norvill. The tone and tenor of most of the article, and most of the statements attributed to Mr Rush, was one of humour. Could it seriously be suggested that Mr Rush was being serious when he referred to having a “regal stud-muffin quality”, or when he said that he “hand-picked” the three actors who played his daughters? It should be noted that the journalist observed that Mr Rush cackled when he made the latter statement.

526    I accept Mr Rush’s evidence that he used that “outmoded” expression “stage-door Johnny crush” with a sense of irony, that when he made that remark he was or was intending to be “flip” or humorous, and that he was intending to compliment Ms Norvill and to convey that he liked her work. It may perhaps have been a poorly selected and regrettable expression to use to praise Ms Norvill, however I reject the contention that Mr Rush was intending to depict Ms Norvill as a “sexual object rather than as a serious skilled actress” or that he intended to make Ms Norvill feel uncomfortable, embarrassed and compromised.

527    I also reject Ms Norvill’s evidence that she felt humiliated, uncomfortable and disrespected when Mr Rush made this statement. Her evidence in that regard was essentially uncorroborated by and inconsistent with the evidence as a whole. As noted earlier, Mr Armfield observed that everyone returned from the interview in high spirits. Ms Buday did not see or consider any discomfort on Ms Norvill’s part during or after the interview. In the very same interview Ms Norvill described working with Mr Rush in positive terms; that she appreciated his playfulness and loved his ebullience. Would she have said those things if she was feeling humiliated, uncomfortable or disrespected as a result of what Mr Rush had said? It would appear from the article that Mr Rush’s “stage-door Johnny crush” remark was made towards the beginning of the interview. Ms Norvill also never subsequently complained to anyone about the interview or anything Mr Rush said during it. Indeed, she gave a later interview to a different journalist in which she made equally positive remarks about what it was like working with Mr Rush.

528    It should also perhaps be added that the expression “stage-door Johnny crush” appears positively quaint and tame when compared with some of the language used by Mr Rush and Ms Norvill during their email text message exchanges during 2014. During those exchanges Ms Norvill referred to Mr Rush as “Jet Lee Thrust”, “God of Generic Lust”, GR BANG BANG” and “Giddy McHeadRush” and referred to herself as “Meringue Jam Novelty” and “Ear and Jam Novelty”. Perhaps more significantly Mr Rush referred to Ms Norvill as “nourishing delicious Ovaltine Oval”, “Erogenous Navel (ooh!)” and “Aero Ginger Nutella”. As for the last-mentioned name, Mr Rush said in the text that it was “more your [Ms Norvill’s] exotic blend of textures, taste and tang … I really look fwd [forward] to another serving of curious charm tonite”. Ms Norvill did not suggest that she felt humiliated, uncomfortable or disrespected by any of those exchanges. Indeed, she said that she saw nothing wrong with them. Some might think, however, that having regard to the previous exchanges between the pair, it was somewhat disingenuous of Ms Norvill to suggest that she felt humiliated, uncomfortable or disrespected by the “stage-door Johnny crush” joke made by Mr Rush, even though, unlike the earlier exchanges, that joke was made in a more professional or work-related setting.

529    There is no merit in Nationwide and Mr Moran’s contention that, in making this statement to the journalist, Mr Rush engaged in “scandalously inappropriate behaviour”, or “scandalously inappropriate behaviour of a sexual nature”. That contention is rejected. It almost self-evidently follows that I reject any contention that Mr Rush was a pervert or a sexual predator because he made this statement to the journalist, or that the statement was capable of proving the substantial truth of any of the imputations conveyed by the relevant publications.

Allegation five: Stroking or brushing Ms Norvill’s breast

530    The essence of this allegation was that, during the final scene, Act V Scene III, in one of the preview performances of the play, while Ms Norvill was lying on the stage, Mr Rush moved his hand so that it traced down Ms Norvill’s torso and across the side of her right breast.

531    This was perhaps the most serious allegation against Mr Rush.

Ms Norvill’s evidence

532    Ms Norvill’s evidence concerning this incident was as follows:

Yes. Now, up until the preview week I want you to think back and think about act 5, scene 3, the point where you’ve been brought onto the stage and your dead body has been placed down on the floor of the stage?---Okay.

And Mr Rush is beside you at that point?---Yes.

Yes. Up until preview week, I want you to tell the court – and take your time – what motions Mr Rush made with his hands with regard to you up until preview week, and take your time describing it?---I remember the – the choreography, I guess, or the gestures, the touching that Geoffrey would do in rehearsal was he would use his left hand to touch the right side of my face. Sometimes he top – he touched the top of my head and – and my shoulder but it was mainly my face, and then he would use his right hand to go down touch – touch stroke down my arm, sometimes grab, and then he would hold my hand, and sometimes he would lift me up and – and, like, hug me, I guess, cradle me. That was what the touch was.

All right. And when you say sometimes he would lift you up, was that something that started happening at a particular point?---Yes, it started happened in – in front of audiences. I don’t believe – it may have happened once or twice in rehearsal, but I mainly remember the touch being on the face and on the right side of my arm and on my hand.

Thank you. And when you say lift you up, which part of your body are you referring to?---My – my upper torso, my – he would pick me up and kind of hug me.

All right. And when he picked you up, what did he – how did he do that? Put his hands behind your back or something? How did he do it?---Yes, his hands would be on my back.

Right. Now, the hand motions that you’ve described were the – I think it was the left hand on the face and the right hand stroking down your arm and then holding your hand?---That’s right.

Yes, those motions you’ve just described a few minutes ago?---Yes.

Did that change in some way one night during the preview period?---Yes, it did.

All right. Now, could you tell the court what happened?---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.

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

Yes. Exactly where was his hand in relation to your right breast?---He had maybe three or four fingers and it was halfway up my breast.

All right?---Didn’t touch my nipple, I don’t think, but I remember - - -

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 Neville [Norvill]. The witness indicated the palm of her hand on the side of her breast and her fingers at least over part of the top breast?---That’s right.

533    According to Ms Norvill, this occurred while Mr Rush was delivering a monologue. The motion lasted for about “eight or ten seconds” and Mr Rush’s hand was on her breast for “[t]wo, three, four seconds”. The touch was “slow and light and pressured”. Her evidence was that the action was such that she thought it was deliberate: “it didn’t feel like an accident”.

534    Ms Norvill agreed that Mr Rush’s touch of her breast may have been seen by the audience, but not necessarily. Her evidence in that regard was:

Second, if he had done that, at least four and probably more members of the cast must have seen it?---They may have seen it, yes.

I’m sorry?---They may have seen it, yes.

Indeed, the audience would have seen it if it lasted for as long as you said, which I think was 10 seconds, something like that. I’m sorry, two, three, four seconds, you actually said.

MR BLACKBURN: No - - -

MR McCLINTOCK: - - - the audience would have seen it, wouldn’t they?

MR BLACKBURN: - - - she said eight seconds.

MR McCLINTOCK: Or eight seconds. If it had lasted eight seconds, as Mr Blackburn suggests you said, the audience would have seen it, wouldn’t they?---No, not necessarily. I was laying on the ground. I said it was on the right side of my torso, which was upstage. The audience probably wasn’t even watching me. I’m a dead body on the ground. They’re looking at the man delivering a speech, him emoting on stage.

And he’s emoting over your body, isn’t he, and he’s touching it?---Yes, he is.

They must have seen you. This is a scene, Ms Norvill, of a father grieving over his daughter?---Exactly.

535    Ms Norvill’s evidence was that, at the time Mr Rush touched her, she was lying on her back a few metres from the front of the stage. The front row of the audience would have been a metre back from the “lip” of the stage. Ms Norvill also agreed that Mr Koman, playing the Earl of Kent, and Mr Winter, as Edgar, were standing close to where she was lying on the stage. Mr Koman was about a metre from her looking down at her. Ms Norvill agreed that if they were looking directly at “the action” they would have been able to see Mr Rush’s touch.

536    It is clear that Ms Norvill’s evidence was that Mr Armfield saw Mr Rush touch her breast. Mr Armfield was sitting in the body of the theatre with the audience during the preview performances. As for why Mr Armfield saw the touch, but other people in the audience would not necessarily have seen it, Ms Norvill gave the following evidence:

You said also that Mr Armfield saw it, didn’t you?---I believe that he did, yes, because he gave me the note.

You see, Mr Armfield was in the audience during the previews, wasn’t he?---I believe that he was.

If he saw it, the audience must have seen it, Ms Norvill; that’s correct, isn’t it?---No, not necessarily. Neil is looking at every actor on the stage. He would be scanning, looking for things, looking for body movements. The audience, I imagine, will be staring straight at Geoffrey Rush delivering the speech of his life. So, no – no.

537    In any event, as for the oral “note” Mr Armfield gave to Mr Rush at the meeting following this performance, Ms Norvill’s evidence was that Mr Armfield told Mr Rush that his touch in the final scene had “become unclear and creepy and that he should make it more paternal and – and just go back to touching me [Ms Norvill] on the face and the arm”.

538    Ms Norvill did not recollect whether Mr Rush responded in any way.

Mr Winter’s evidence

539    Mr Winter’s evidence was that, one night “towards the beginning” of the performances of the play, he saw something different occur during Act V Scene III. His evidence was:

And what did you see on this occasion?---On that occasion I saw Geoffrey’s hand cupping around the bottom of EJs breast, which was something that I hadn’t seen before on stage and it – I – I definitely - - -

….

HIS HONOUR: Is there anything else that you saw that you – in terms of what you actually saw, as opposed to what you were thinking at the time?---No, that was the action.

Yes?---His hand on her breast.

Yes.

MR BLACKBURN: Could you describe with a bit more precision whereabouts on the breast the hand was?---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.

….

Will you?---I would say the gesture was – so the – the nipple was not covered and it was sort of around the – the bottom of the breast, side and bottom of the breast.

And you had your hand – you had your right hand against - - -?---Left.

It was the left?---That’s – that’s my recollection of it.

So Mr Rush’s left hand; is that - - -?---No, my – the picture in my mind - - -

Yes?--- - - - is that it was his right hand on her left breast; that’s my memory of it.

540    Mr Winter was initially unable to give an estimate of how long Mr Rush’s hand was in the position he described, though he subsequently gave an estimate based on the number of “thoughts” he had at the time. His evidence in that regard was as follows:

HIS HONOUR: Well, just confine yourself to describing how long an estimate of time in seconds presumably?---Well, I guess I had about four or five thoughts, so that must – I would equate, you know, a thought, a second, second and a-half. So I would say around – I can’t be specific, but I would say above five.

Seconds?---Seconds.

Yes?---And that’s equating that with thoughts.

So - - -?---Yes.

- - - four or five thoughts, a second per thought, that’s the - - -?---I’m just saying that – I mean, you have to - - -

I’m not making fun of it, I’m just understanding your - - -?---No, no, it’s just I was on – on stage at the time obviously.

Yes?---I was not watching the clock.

541    Mr Winter made it clear in his evidence that his recollection was that he saw Mr Rush’s right hand in a “cuppedposition on Ms Norvill’s left breast. In cross-examination, Mr Winter agreed that this touch on Ms Norvill’s breast lasted for two, three or five seconds. At the time this occurred, Ms Norvill was lying on the stage with her left side facing the audience. It may be recalled that the performances, including the preview performances, were essentially sold out, so there would have been an audience of about 960 people on the night in question. Nevertheless, Mr Winter appeared to be unwilling to accept that Mr Rush’s actions would most likely have been seen by at least some members of the audience. His evidence in that regard was as follows:

Yes. You would expect, wouldn’t you, if Mr Rush had done what you describe, that at least some of that audience would see it, wouldn’t you?---I’m not sure that they would have, no.

I see.

HIS HONOUR: Well, Mr Winter, if Mr Rush had done what you’ve described, his right arm must have come right across Ms Norvill’s body?---Yes. It was in the laying down sort of process there and it – it – it – you know, the lip of the stage. I think it is possible that they would not have caught that.

Sorry, just so I understand that answer, your recollection is this occurred in the course of laying Ms Norvill down on the stage?---After that.

After it?---After she has been laid down.

I see?---Yes.

….

Now, just to be absolutely clear about it, it would have been something that the audience, or at least some members of the audience, must have seen, Mr Winter? --- Well, his hands were going up her whole side of her body.

Mr Rush’s evidence

542    Before referring to Mr Rush’s evidence concerning this allegation, it is relevant, so as to provide some context, to refer to Mr Rush’s evidence concerning Act V Scene III generally.

543    Mr Rush’s evidence was that the “death entry” for Act V Scene III was the “biggest challenge of the whole production” and could “make or break a performance any night” and that “there was no way of coming in under par on that level of raw primal grief”. Prior to performing it, Mr Rush would go to his dressing room and “sit very quietly and begin a process of going into as neutral a mental space as [he] could, working from that, the profundity of the depth of that empty world”. His walk to the back of the theatre, before his entrance onto stage, became a “kind of walking meditation”, during which he was “shedding [his] mind” because he wanted the “howl” when he entered the stage “to burst out of [him] without any expectation”.

544    In his evidence, Mr Rush explained in some detail the technical process of lifting Ms Norvill and carrying her on stage and then laying her on the stage floor. He described how there might be slight variations between each performance in relation to exactly how Ms Norvill was placed on the floor:

And Ms Norvill was extremely good at playing a very credible dead. But there would be slight variations some nights as to whether her head lolled a little to the left or a little to the right or whether, particularly here, we would lay her on her back, but sometimes her left arm might be away from the body or might be closer to the body. But, generally, you could overlap an image from each production and you fairly close without it looking robot-like.

545    Mr Rush described his mental preparation for the scene where he gives the monologue looking grief-stricken over the body of his daughter, Cordelia, in the following terms:

When you’re playing that grieving father, Mr Rush, on stage at those points, what were you thinking about?---Despite Ms Norvill being a very good dead person, I had worked with Neil on two other productions – one was Diary of a Madman and one was Hamlet – that contained similar end moments to the play of complete shattering, overwhelming grief. In Diary of a Madman it was the Madman was incarcerated in an asylum thinking he was King Ferdinand VIII, but couldn’t work out why he was being tortured with cold water. And the last scene flashes up and he’s screaming in agony and then makes his way forward to his upturned table. It’s a remnant of where he used to write his diary. And Gogol takes him on a mental journey across Russian to find his mother to help him from when he was a child and Neil said, “You need to make that personal journey to your own mother in Toowoomba.” Similarly with the death of Hamlet, when Hamlet died, “now cracks a noble heart”, it was Horatio absolutely imploding emotionally. Eight times a week that’s a very big ask and it’s not a scene that you want to fake.

What about Lear?---For this scene I always imagined that it was my own real-life daughter.

Take your time, Mr Rush?---And that she had been hit by a bus and on the street near where we live in Camberwell and I knew she was gone. I carried her to the footpath and every night I would reinvent that scene in my mind because she’s in her early to and she was my daughter and I needed that – I needed that trigger.

546    Mr Rush denied ever deliberately tracing two or three of his fingers across the side of Ms Norvill’s right breast in an eight-second motion. It is important to set out the entirety of the detailed evidence he gave in answer to the proposition that he did just that:

In one of those days during the previews, your hand didn’t touch her arm and face as you had done before, but I want to suggest, first of all, you touched the right side of her face with your left hand holding it still there for a couple of seconds?---Yes.

And then with your right hand you traced down the side of her torso with two or three fingers and across the side of her right breast?---That’s not specifically an accurate description. I always touched her face because the – the – the use of her hair for the – the feather was pretty much there from the get-go because we had to discuss do you want it to be an a – an a – a delusional feather, and I look at the idea of her hair being – that it is delusion that he’s thinking I have a feather. He’s in a pretty mentally shattered state at this point. Neil and I had had a discussion at some point based on the notion of my own daughter. He said, “What – what do you think would happen. And I said, “Well, I don’t know how to do this,” but there’s a point somewhere in the script she will come no more that I wanted to feel the silhouette or the halo of her torso from her face to her shoulders down her arms that this is no longer alive. And we’re not even at the end of the scene where it goes deeper, and he goes, “Never – all of these people are never, never, never, never, never going to be coming – be alive”. And it – it’s his own fault. He has brought on the hubris that he is responsible for the way he led his life, his kinship and let things get run out of control. So in that moment, depending on whether Ms Norvill’s arm fell away from the body, I caressed down, but it wasn’t at breast level. It was down torso level with the image of a silhouette, a halo around an empty, lifeless vessel.

Thank you. Now, let me be very specific, though, about what I’m putting to you. The touch with your right hand began at just below shoulder level – I’m just talking about the height or level here, if you like. I’m putting to you that the touch began just below shoulder level and in a continuous motion – and I will say in a moment where the fingers went, but in a continuous motion, the motion ended about eight seconds later a bit below the breast, and that’s the first proposition I’m putting to you. The second proposition I’m putting to you is that the fingers of your right hand in that eight-second motion from below the shoulder to a bit below the breast deliberately traced across the side of Ms Norvill’s right breast, not, as you’ve said, on the side of the body but deliberately across the side of the right breast?---No. That was – if – did a thumb accidentally touch the lower part of her chest? Possibly. I wasn’t monitoring this with detachment. The image was – it – it – it was the arm on this side that often, being lowered – when you’re dead, you don’t readjust because that means you’re alive. Sometimes her arm would fall out that way, but mostly she fell with her arms pretty much next to her body like a catafalque, and that was the – the – the silhouette – the very outline if I was drawing her with a pencil. It was not a – it was not a deliberate attempt to run my hands across her breasts at any moment.

….

Mr Rush, the proposition I put to you that you moved your two or three fingers of your hand down slowly in an eight-second motion down the side of her right breast, are you saying in the very detailed answer that you’ve given that that could have happened?---By the way you’re describing it, Mr Blackburn, you’re – you are actually going down across your own male areole. That is not the area and not the image that I was working towards. It was the – it was the outline – the extremity of corpse.

Well, I certainly didn’t - - -?---So I’m saying, no, there was – there was no touching of breast.

I’m certainly not suggesting - - -?---Did a finger graze the lower part? Possibly.

Yes. I’m certainly not suggesting, Mr Rush, that you put your hand or moved your fingers over the top of Ms Norvill’s right breast. What I’m suggesting to you is that you moved your fingers down the side of her right breast?---It was the interior of my palms wanting to feel the loss of her soul.

Well, thank you, but my question is: could that have happened? Could you have moved two or three of your fingers down the side of her right breast?---No. That couldn’t have happened. There would have been no deliberation in such a movement at that point – in that moment of the play.

547    In summary, Mr Rush appeared to accept that there was a possibility that while performing this scene, one of his fingers may have touched or grazed the lower part of Ms Norvill’s chest, but he denied moving two or three of his fingers down the side of Ms Norvill’s right breast. His evidence was that that could not possibly have happened. He denied deliberately touching Ms Norvill on the breast.

548    As for the suggestion that Mr Armfield gave him an oral note after one of the preview performances to the effect that Mr Rush’s performance of the scene had become unclear and creepy and that he should make it more paternal”, Mr Rush gave the following evidence:

You mentioned Mr Armfield’s direction there. Did he ever say – give you a direction that you should be more paternal because that scene was becoming creepy and unclear?---I don’t recall the words creepy. They seem unfamiliar in Mr Armfield’s mouth in front of a company that he would address a principal actor with a slightly pejorative word. Paternal, if he did say it, I don’t recall that specifically. But he knew from what I said earlier about making that journey to my mother when I was 8 in Diary of a Madman. He said, “You know what to do. This is all about Angelica.” That would possibly be the inference of his subtext.

Did Mr Armfield ever complain that you did anything inappropriate in relation to Ms Norvill on stage either during rehearsal or performance or any time?---No, not at all. But he was very pick or pernickety about don’t do incidental – don’t ever, like, pat her with grief because it – on that – in that void it doesn’t look strong. It looks petty. You know, he would say, “I would much rather have movements between tableaus of touching her shoulder and her shin. But to keep minimalizing it and keep an undercurrent of strength broken only by the rhythm of her dead body being embraced.

Mr Rush’s evidence concerning Mr Trewhella’s email

549    It is relevant, in the context of this allegation, to consider Mr Rush’s evidence concerning his conversation with Mr Trewhella shortly before 14 November 2017. As was noted earlier, Nationwide and Mr Moran submitted that parts of Mr Rush’s evidence concerning his conversation with Mr Trewhella cast doubt on Mr Rush’s credibility and the reliability of his evidence as a whole.

550    The relevant part of Mr Trewhella’s email was extracted earlier. In summary, Mr Trewhella stated that he had been telephoned by Mr Rush “early Friday evening”, which, by reference to the date of the email, would have been Friday, 10 November 2017. Mr Trewhella recorded in his email that Mr Rush had said that he had telephoned to give Mr Trewhella a “heads up” that he had been contacted by the media for a response to the “HW award situation”. That was a reference to the fact that AACTA had decided to give Harvey Weinstein an award in 2013 and that, despite the fact that Mr Weinstein never travelled to Australia to accept the award, the media were querying why, in light of the then recent scandal involving Mr Weinstein, the award had not been revoked or rescinded.

551    Mr Trewhella also recorded that, “in passing”, Mr Rush had also told him that he, Mr Rush, had been “baited” on an “issue involving him which in his view was bullshit”. Mr Trewhella stated that, in that context, Mr Rush had said that the only “issue” he could think of was the scene in King Lear where he carried his “dead daughter”. Mr Trewhella recorded that Mr Rush said that that was a difficult scene and “whilst he thought the carry position was right for all, there was allegedly some discomfort”.

552    Mr Rush was cross-examined at some length about Mr Trewhella’s email and the terms of his discussion with Mr Trewhella. He ultimately agreed that he had a telephone conversation with Mr Trewhella on or around Friday, 10 November 2017, though he was not sure exactly when that conversation occurred. He said that the conversation occurred “at the end of a very frantic day”. There could be little doubt that Mr Rush’s telephone call to Mr Trewhella was prompted by the email his agent had received from the journalist from The Australian earlier on 10 November 2017. Mr Rush did not dispute that.

553    As for the terms of his conversation with Mr Trewhella, Mr Rush agreed that, in the context of his discussion with Mr Trewhella concerning the media’s treatment of the Harvey Weinstein award issue, he had said something to the effect that, “by way of example”, he had been “baited” in relation to an issue involving him. He gave the following evidence in relation to this part of the conversation.

You did say that to Mr Trewhella, didn’t you?---Well, the only issue – this is his reporting – the only issue I could think of in talking to Damian, “The only thing I can think of, Damian, is possibly this event that’s likely to be in the paper tomorrow.” And I wanted him to know, should it be published and talked about that the board would have to make a response or they would be phoned or they would have press at their door or whatever. I was honourably in my ambassadorial role as president alerting him to what the media were up to.

554    Mr Rush was pressed about the statement in the email which suggested that he had told Mr Trewhella that the only thing that he could think of, in terms of the “issue” that had been raised about his conduct, was that there was “allegedly some discomfort” in the scene in King Lear where he carried his dead daughter. His evidence in relation to that statement included the following:

Well, someone had made an allegation to you, I take it, that there had been some discomfort suffered by Ms Norvill in the course of this scene?---No, that is not true. I think that is Damien in this rather administrative kind of speak relaying the broader gist of my conversation. I look at that – I would never had said it was a difficult scene. I might have said, I don’t know, Damien, whether you know the play very well, but it’s a scene of great emotional complexity. It’s the Everest that everyone not saying it was an awkward scene or it was a troublesome scene.

…..

I was speculating, again, that the only person I made contact with in the whole play – I’m assuming this could be – I can’t define it yet, because that only really happened with any definition when Mr Moran’s articles – emails came through to me on Wednesday 29 November. Up until then, we were thinking, well, this could be – it was very conditional tense.

Well ---?---

There was allegedly some discomfort.

Maybe I said – I don’t know what it is, it could be a question of she felt unsafe because I’m old and I might drop her, or – I’ve got ---

(Emphasis added.)

555    As for whether he in fact said that “there was allegedly some discomfort”, Mr Rush gave the following evidence:

That’s his version. My version was, probably – exactly what I said. “You know how old” – Damien and I have a very cosy, and easy and – he’s a big country boy, but he’s a very smart administrator. I could easily say to him, “You know how old I am, Damien. My back is not so good. But I knew I would never drop her. Maybe – maybe holding someone here, makes them feel very vulnerable that they could dropped”. And it’s another speculation that that could have led to a complaint. I don’t know.

Did you say a minute ago that you wouldn’t have said or you didn’t say it was a difficult scene? Was that the effect of your evidence? I may have got you wrong?---No, that – this is Damien reporting to a - - -

Yes?--- - - - group of board members.

Yes?---My connection with him would have been, “I don’t know how well you know Lear, Damien, but it was one of the big scenes. It was, you know, emotional. It was, for me, one of deep engagement, but it seems as though there was something to warrant a complaint about carrying her onstage” which, ultimately, and that – even long after The Daily Telegraph printed that, I was always astonished that the fact checkers never found out, they always referenced inappropriate behaviour went on while carrying her onstage.

Now, Mr Rush, just to be clear about what I’m putting to you so that there’s no mistake about it, I have asked you questions about those words:

…there was, allegedly, some discomfort –

The proposition I’m putting to you is that you did say words to that effect to Mr Trewhella:

…there was, allegedly, some discomfort - - -

?---I – I wouldn’t have said it as – as business-like as that. I would say, perhaps, it was an issue of discomfort, or an issue of fear or – or something not being right for the actor, without fully knowing yet - - -

And the second – I’m sorry?--- - - - what those alleged accusations turned out to be.

556    While Mr Rush’s answers were long-winded and not easy to follow, ultimately, he appeared to be taking issue with the proposition that he would have used the words allegedly some discomfort”. He was saying that those were Mr Trewhella’s words, not his. The basis of that evidence appeared to be that Mr Rush did not speak in such a “business-like” way.

557    Perhaps more significantly, Mr Rush denied that he said those words to Mr Trewhella because he was conscious that he had caused some kind of discomfort to Ms Norvill. His evidence in that regard was:

The second proposition I am putting to you is that you said words to that effect because you were conscious that you had caused some kind of discomfort - - -?---No.

- - - to Ms Norvill?---No.

And those words indicated a consciousness, on your part, that you had, in some way, disturbed her?---But this was – these were all speculative analyses by me and my wife about where is all this coming from. We were trying to narrow it down, and hitting brick walls.

558    Nationwide and Mr Moran submitted that Mr Rush’s evidence concerning his conversation with Mr Trewhella indicated that Mr Rush’s evidence was generally unreliable. They contended that Mr Rush’s attempt to suggest (in the passage highlighted in the extract above) that he may have told Mr Trewhella that Ms Norvill experienced discomfort because she felt unsafe because he was old and may drop her was ludicrous. In Nationwide and Mr Moran’s submission, by the time he was having this discussion with Mr Trewhella, he knew that the allegation that had been made about him concerned some sort of sexual impropriety. That was why he raised this issue in the context of the Harvey Weinstein award issue. Nationwide and Mr Moran submitted that, in those circumstances, Mr Rush’s apparent suggestion that he might have told Mr Trewhella that the allegation may have related to Ms Norvill fearing that he was going to drop her was disingenuous.

559    There is some force in Nationwide and Mr Moran’s criticism of this part of Mr Rush’s evidence. It was not impressive. He appeared to be taking issue with Mr Trewhella’s summary of their conversation and speculating about what he may have said to Mr Trewhella and what he may have intended to convey. He did not appear to have any actual recollection of the words he said to Mr Trewhella.

560    I accept that Mr Trewhella’s account of what Mr Rush told him was likely to be an accurate summary. In that regard, Mr Trewhella’s email was in many respects similar to Ms Crowe’s email. Mr Trewhella was reporting a serious issue to the AACTA board. While it may be accepted that Mr Trewhella’s summary of his conversation was not intended to be a transcript or verbatim account of exactly what Mr Rush had said, there is no reason to suppose that it was not an accurate summary. Had Mr Rush in fact said that the alleged discomfort related to a fear on the part of Ms Norvill that Mr Rush might drop her, that is something that Mr Trewhella would most likely have recorded. I accordingly do not accept Mr Rush’s evidence in relation to what he said to Mr Trewhella in that regard.

561    What, however, flows from that finding? The first and most important point is that I do not accept that Mr Rush’s unimpressive evidence about parts of his conversation with Mr Trewhella casts down on the reliability of his evidence as a whole.

562    The terms of Mr Rush’s conversation with Mr Trewhella was undoubtedly a potentially important issue. It is tolerably clear that, by the time of that conversation, Mr Rush had, at the very least, surmised that Ms Norvill was the complainant. He also appeared to have formed a view about the possible nature of the complaint. The conversation which Mr Rush had with Mr Trewhella accordingly raised legitimate questions as to how Mr Rush had arrived at that position. The precise terms of the conversation itself, however, was somewhat of a side-issue. The more important issue was exactly how and why Mr Rush had surmised that the complaint related to the scene in which he carried Ms Norvill onto the stage and whether, as Nationwide and Mr Moran contended, that revealed some sort of consciousness by Mr Rush that he had in fact caused discomfort to Ms Norvill.

563    In his evidence, Mr Rush made it fairly clear that after he become aware, through his agent, that the STC had said that it had received a complaint that he had engaged in “inappropriate behaviour”, he and Ms Menelaus attempted to work out exactly what the complaint may have involved, beyond the general description of “inappropriate behaviour”, and who may have made it. It should be noted that, at this point in time, the STC had not given Mr Rush, or anyone else for that matter, any details of the complaint or the complainant. Mr Rush’s evidence was that he was essentially speculating about the nature of the complaint and the identity of the complainant because he had been provided with no information about those matters. Ultimately, that speculation led him to believe that the “most likely scenario” was that the complaint related to the scene where he carried Ms Norvill onto the stage because Ms Norvill was the only person with whom he made physical contact in the entire play.

564    On the whole, I do not consider that Mr Rush’s evidence about how he came to surmise that the most likely scenario was that the complaint related to the carrying scene was implausible, improbable or otherwise unreliable. Perhaps more importantly, I do not accept that his evidence in that regard revealed a consciousness on his part that he had in fact caused some kind of discomfort to Ms Norvill in the process of carrying her onto the stage. Mr Rush denied that proposition when it was put to him.

565    What is rather curious about this aspect of the case advanced by Nationwide and Mr Moran is that, as events transpired, Ms Norvill’s complaint did not in fact relate to anything that occurred while Mr Rush carried her onto the stage, at least on the account given by Ms Norvill in her evidence. Rather, it related to the touching of her back before she was picked up and carried onto the stage, and the touching of her breast while she was on the stage. Thus, Mr Rush’s speculation as to the nature of the complaint turned out to be incorrect.

566    In all the circumstances, I am not persuaded that Mr Rush’s evidence concerning Mr Trewhella’s email, considered as a whole, undermined his credibility or the reliability of his evidence generally. Nor did it reveal any consciousness of guilt, as it were, in relation to the actual allegations made by Ms Norvill.

Mr Armfield’s evidence

567    Mr Armfield’s evidence in relation to this allegation was as follows:

Could I ask you this: did you ever see Mr Rush brush Ms – brush the side of Ms Norvill’s breast with a hand?---Not as a – yes, like, to ask someone to pick up someone’s torso and – and hold it against – against his head, as – as I asked Geoffrey to do, I would have thought might easily mean – like, I suspect it would be impossible to – to do it without – without your hand – without his hand touching her breast. I certainly never saw any gratuitous action outside the – the action of what was necessary for – for – for – for his manipulation of her body in that scene.

568    It would appear that what Mr Armfield was saying was that the dramatic nature of the scene, and the inevitable contact between Mr Rush and Ms Norvill that it required, meant that Mr Rush’s hand might have inadvertently touched Ms Norvill’s breast, but that he never saw any “gratuitous” action by Mr Rush outside of what was necessary to perform the scene. Mr Armfield also said in evidence that he had watched the previews “like a hawk”.

569    Mr Armfield said that he had no memory of saying to Mr Rush that his touching of Ms Norvill was becoming creepy or unclear, and did not remember saying that Mr Rush should make the touch more paternal. When pressed in cross-examination that it was likely that he used the word “paternal” during one of the oral notes given during the preview period, Mr Armfield gave the following evidence:

What I’m suggesting to you is, first of all – we will take this by stages – at some point, it’s likely, isn’t it, because of the lifting the torso of a two year old it’s probable that you suggested to him or gave him a note that he should be more paternal in that – at that moment?---Had I – had I been making a criticism I would not have – I – I would not have made that suggestion in a – in – in the – the public notes forum. But I – we were always seeking for – we were always seeking for the most paternal image, the most – the most telling image of paternal love.

570    Ultimately, Mr Armfield disagreed with the proposition that he used the word “paternal” at any time during the preview period.

571    He gave similar evidence when pressed about whether he had ever given a note to Mr Rush about his performance of the scene becoming unclear and creepy”:

Just coming back to the preview period, you were concerned, weren’t you, that there was something – during that period, you were concerned that there was something developing in the way that Mr Rush made contact with Ms Norvill in that final scene when she was lying on the stage. You were concerned during the preview period, weren’t you, that something had developed and the – the motions that he was – that he was using with his hands were becoming unclear in some way?---No – no, not at all.

And, indeed, creepy?---Not at all.

And you gave Mr Rush a note to that effect, didn’t you, that the motions that he was using were becoming creepy and – unclear and creepy?---I’ve already said that I have no memory of such a note.

Well, you have no memory of it, but can I suggest to you that that doesn’t mean that you didn’t – you might have given it?---I would have thought it would – I – such a significant thing, I believe I would remember, had I said it.

….

I want to ask you this question: if you thought that Mr Rush’s movements in that scene were in fact becoming creepy, you would have said it, wouldn’t you?---Yes. I would have said it to him, yes.

And by that you mean – I take it you’re saying, what, not in front of the cast?---Yes. That’s right. I would imagine so, yes.

572    Ultimately, Mr Armfield denied saying to Mr Rush that his movements were becoming “unclear and creepy because he could not imagine using the word “creepy”.

Ms Buday’s evidence

573    Ms Buday’s evidence was that she did not hear Mr Armfield use the words “creepy and unclear” at any time when speaking with Mr Rush about Act V Scene III and did not recall Mr Armfield saying, during one of the “note sessions”, that Mr Rush should “make it more paternal”, or that Mr Rush was being “creepy and unclear”, or anything like that. Ms Buday was not cross-examined about her evidence in that regard.

Ms Nevin’s evidence

574    Ms Nevin’s evidence was that she did not ever hear Mr Armfield give Mr Rush a note to the effect that he was being creepy and unclear in the final scene, or a note that he needed to be more paternal. Ms Nevin was not cross-examined in relation to her evidence on that topic.

Other evidence

575    The written notes made by Mr Armfield during the preview performances were in evidence. None of them referred to Mr Rush’s performance of Act V Scene III being creepy or unclear. None of them included any suggestion that Mr Rush’s performance should be more paternal.

Findings

576    I am not satisfied, on the balance of probabilities, that Mr Rush intentionally touched Ms Norvill’s breast, in the manner described by either Ms Norvill or Mr Winter in their evidence, during a preview performance of Act V Scene III. I am not satisfied that the evidence of Ms Norvill and Mr Winter in respect of this incident was credible or reliable. I accept the evidence given by Mr Rush that he never intentionally touched Ms Norvill’s breast. I also accept the evidence of Mr Armfield, Ms Nevin and Ms Buday that they did not see any such incident occur. I accept Mr Armfield’s evidence that he did not give Mr Rush an oral “note” in which he described Mr Rush’s performance of Act V Scene III in one of the preview performances as “creepy and unclear”.

577    There are numerous reasons why I have arrived at these findings.

578    First, I consider the allegation and Ms Novill’s evidence concerning it to be somewhat implausible and improbable. Mr Rush was a dedicated actor and consummate professional. The STC’s production of King Lear, under the direction of Mr Rush’s long-term friend and artistic colleague, Mr Armfield, was a serious and significant artistic endeavour for Mr Rush. It was a challenging play, and Mr Rush spent many months preparing for it. He saw Act V Scene III as proving the biggest challenge in the play. It was a scene which could “make or break” the performance. He gave compelling evidence about how he would mentally prepare himself for that scene. He and Ms Norvill, as the grieving Lear and the dead Cordelia respectively, were the focus and centre of attention for the audience during the scene. Aside from Mr Rush, several members of the cast were standing nearby on stage and were apparently observing Mr Rush’s actions during the scene. The preview performance in which the alleged breast-touching was said to have occurred was attended by over 900 patrons in a theatre in which many patrons would undoubtedly have had a “birds-eye view” of the stage.

579    The suggestion that Mr Rush would intentionally stroke or cup Ms Norvill’s breast during this scene in a preview performance is highly implausible. It is inconsistent with Mr Rush’s dedication and professionalism as an actor. It is entirely at odds with the unchallenged evidence he gave about how he mentally prepared himself for the scene, which included meditating and emptying his mind and then imagining that Cordelia was his real life daughter who had been hit by a bus. How could Mr Rush maintain the focus and state of mind which he considered necessary to properly perform this difficult scene, and yet engage in such a base and crude action as intentionally stroking Ms Norvill’s breast? How is the act of intentionally stroking Ms Norvill’s breast compatible with the obvious need for Mr Rush to maintain a close professional rapport and relationship with Ms Norvill throughout the play? How could Mr Rush maintain the necessary dramatic relationship between Lear and Cordelia if he engaged in such behaviour? As Mr Rush himself asked rhetorically during his evidence, when describing the allegations as “preposterous”: “what would that achieve in my relationship with, not only the actress, but my daughter Cordelia, in the play?”

580    And what would the audience think? Contrary to the evidence of both Ms Norvill and Mr Winter, it is abundantly clear that if Mr Rush did what Ms Norvill and Mr Winter claimed he did, it most likely would have been seen by many members of the audience. That is readily apparent from the evidence concerning the position that Mr Rush and Ms Norvill occupied on the stage during the relevant part of the scene and the positioning of their respective bodies at the point when the touching was alleged to have occurred. They were only a few metres away from the closest patrons. Many others would undoubtedly had an even better view from above. Mr Rush and Ms Norvill were the focus and centre of attention in this extremely dramatic scene. All eyes were on them. Mr Armfield, who was in the audience was, on Ms Norvill’s account at least, able to see what had supposedly happened.

581    In any event, it would have been obvious to anyone who gave it even a moment’s thought that there would have been an inherent risk that some members of the audience would have seen Mr Rush stroking or cupping Ms Norvill’s breast, if in fact he had done so. The effect, one might imagine, would be wholly destructive of the scene. Was it even remotely plausible that Mr Rush, as the consummate professional, would have taken such a risk for such a fleeting moment of supposed sexual gratification?

582    Second, despite the very public occasion during which this incident was said to have occurred, aside from Mr Winter and Ms Norvill herself, there was no evidence that anyone else saw it occur. More will be said about the evidence of Ms Norvill and Mr Winter in a moment. The point, for present purposes, is that there was no evidence that any other member of the cast or crew, or any member of the audience, saw this incident occur.

583    Third, and critically, there could be little doubt that if this incident occurred, as described by either Ms Norvill or Mr Winter, it would almost certainly have been seen by Mr Armfield. He watched the preview performances “like a hawk”. He prepared notes during the performances so he could discuss and provide feedback and comments to the cast and crew the following day. A review of his notes, which were in evidence, reveals many extremely precise and minute observations about aspects of the various performances, together with Mr Armfield’s comments and suggestions concerning them. One of the notes in relation to Act V Scene III records, in relation to Mr Rush: “pull at collar of shirt”. Another records “I still think you [Mr Rush] should try pressing your face against EJ’s [Ms Norvill’s] looking towards prison” and that Mr Rush was “too far downstage lowering Cordelia to floor”. There could be little doubt that if Mr Armfield had seen Mr Rush do anything untoward, he would have recorded it in his notes and raised it with Mr Rush. Like Mr Rush, Mr Armfield was the consummate professional.

584    None of Mr Armfield’s notes refer to Mr Rush touching Ms Norvill’s breast, or touching it in a way which was “creepy and unclear”. None of them record that Mr Rush’s touch during the critical scene should be more “paternal”. Mr Armfield denied ever giving Mr Rush any such note and denied seeing “any gratuitous action outside the – the action of what was necessary for … his manipulation of her body in that scene”. Ms Buday and Ms Nevin did not hear Mr Armfield ever give a note or direction to Mr Rush to the effect that his actions during the scene were creepy and unclear, or that he needed to be more paternal, as claimed by Ms Norvill.

585    There was also evidence which indicated that the stage manager, Ms Gilbert, also carefully watched the preview performances. She prepared performance reports which included notes about the performances. The reports were not limited to technical matters, but included audience reaction, actors missing lines and the intensity of the acting in certain parts of the performances. None of the reports refer to any untoward actions by Mr Rush during Act V Scene III in the preview performances, or anything “creepy and unclear”. Ms Gilbert was not called as a witness.

586    Fourth, Mr Winter’s evidence provided no real corroboration of Ms Norvill’s evidence in relation to the alleged breast-touching. That is because his description of the incident differed from Ms Norvill’s in many important respects. In her evidence, Ms Norvill described Mr Rush’s hand stroking down the right side of her right breast. She said that three or four of Mr Rush’s fingers were halfway up her breast for about two to four seconds. The touch was “slow and light and pressured”. In contrast, Mr Winter’s description included Mr Rush “cupping” his hand around the “side and bottom” of Ms Norvill’s left breast for about four or five seconds. He did not initially describe any stroking action similar to that described by Ms Norvill, though when pressed about whether Mr Rush’s actions would have been seen by the audience, Mr Winter somewhat inconsistently said: “[w]ell his hands were going up her whole side of her body”.

587    The main issue with Mr Winter’s version, however, is that on Ms Norvill’s account, the stroking occurred on her right side, not her left side. The fact that Ms Norvill described the stroking of her right breast, whereas Mr Winter described the action as involving the cupping Ms Norvill’s left breast, is by no means trivial or insignificant difference. Having regard to the position of Ms Norvill’s body when this was supposed to have occurred, the action described by Mr Winter would have required Mr Rush to effectively reach over Ms Norvill’s body and touch her left breast, which was downstage or closest to the audience. It would have involved a fundamentally different action which would have been even more obvious to the audience.

588    Fifth, even putting the inconsistencies between Mr Winter’s and Ms Norvill’s accounts to one side, 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”.

589    Sixth, for the reasons already given, I have considerable doubts about the reliability and credibility of Ms Norvill and her evidence. That includes her evidence about this incident. That is particularly the case in relation to her evidence concerning Mr Armfield’s oral note to Mr Rush and her claim that Mr Armfield told Mr Rush that the way he performed the scene during the relevant preview performance was creepy and unclear. As has already been noted, that evidence was unsupported by any other witness, including Mr Winter, and was for all intents and purposes denied and contradicted by Mr Armfield. I accept Mr Armfield’s evidence that he was unlikely to, and did not, give any such note to Mr Rush at one of the meetings attended by all the cast as Ms Norvill said he did. Furthermore, if Ms Norvill’s account of Mr Armfield’s note was to be believed, it is difficult to understand why Ms Norvill would not then have been emboldened to speak with Mr Armfield, or Ms Gilbert, or Ms Nevin or even Mr Rush about Mr Rush’s behaviour.

590    Seventh, Ms Norvill’s evidence about this incident seems completely at odds with the tone of the email she sent to Mr Rush on 7 January 2016. The contents of that email were detailed earlier in these reasons. Ms Norvill addressed the email to “Dearest Daddy deGush” and signed off with “xoxo”, clearly denoting hugs and kisses. Ms Norvill’s evidence was that she replied to Mr Rush’s email in these terms because she was “just trying to keep it normal” so as not to cause any upset that might impinge on the final performances of the play. I reject that evidence. Ms Norvill could have kept it normal without referring to Mr Rush in the playful and fond terms that she had employed in the past. She could have kept it normal without signing-off with hugs and kisses. I am unable to reconcile the tone and tenor of this email with the events that Ms Norvill claims had occurred by this time.

591    Eighth, the critical consideration in relation to this allegation is whether Mr Rush’s actions were deliberate. It appeared to be accepted by Mr Armfield, and indeed even Mr Rush, that given the dramatic nature of Act V Scene III, and the physical contact between Mr Rush, as Lear, and Ms Norvill, as Cordelia, that was necessarily involved, it was distinctly possible that Mr Rush might have inadvertently brushed or touched Ms Norvill’s breast. It is difficult to see how an inadvertent and unintentional touch during this difficult and complex scene could possibly be characterised as scandalously inappropriate, let alone scandalously inappropriate behaviour of a sexual nature. Nor could any inadvertent touching possibly justify an imputation that Mr Rush was a pervert, or a sexual predator, or someone who had committed sexual assault.

592    There was no direct evidence that Mr Rush touched Ms Norvill’s breast intentionally or deliberately. In the absence of an admission, proof that a person acted intentionally is more often than not a matter of inference from circumstantial evidence. Mr Rush certainly did not admit that he intentionally touched Ms Norvill’s breast. In those circumstances Nationwide and Mr Moran’s case that the touch was intentional was necessarily circumstantial or inferential. The only circumstantial evidence was the nature of the touching and how it occurred. Ms Norvill was in no real position to assert that the touching was intentional, though she did say, in her evidence, that she believed that the touching was deliberate because “it didn’t feel like an accident”.

593    For the reasons essentially already given, I do not accept that the evidence given by Ms Norvill and Mr Winter concerning Mr Rush’s actions was reliable or credible. I accept that it cannot be excluded that Mr Rush might have brushed or touched Ms Norvill’s breast during Act V Scene III in one of the preview performances of the play. I am not, however, satisfied that if that did occur, it was intentional or deliberate on the part of Mr Rush. I do not consider that any such inference is available from the evidence considered as a whole. I accept Mr Rush’s evidence that he never intentionally or deliberately touched Ms Norvill’s breast during any of the performances.

Allegation six: Touching and brushing Ms Norvill’s lower back

594    This incident was alleged to have occurred during the final scene in a performance which occurred in the period between 14 and 26 December 2015. The essence of the allegation was that immediately before Ms Norvill was carried by Mr Rush onto the stage, and while she was standing on a chair offstage waiting to be picked up, Mr Rush placed his hand on Ms Norvill’s lower back over her shirt. He then moved his hand under her shirt and along the waistline of Ms Norvill’s jeans, brushing across the skin of her lower back. The movement is alleged to have been light in pressure, slow and deliberate, and to have lasted for about 20 to 30 seconds.

Ms Norvill’s evidence

595    Ms Norvill’s evidence in relation to this allegation was as follows:

All right. And what happened on that occasion?---I remember Geoffrey arrived at the chair and he placed his left hand on my lower back above my shirt and he moved his hand from right to left, as in rubbing or stroking my back. His hand then moved from above my shirt to below my shirt and I remember feeling his fingers touch my skin and he - - -

Well, just pausing you there, you said below your shirt, where did his hand go when it moved below your shirt?---It went to – up to the line of my jeans where my jeans and my skin meet.

Yes, underneath your shirt?---Underneath, yes.

Yes, yes. Sorry. Please go on. And then you said you remember him – his hand on your back?---His fingers.

His fingers, yes, yes?---His fingers kind of traced – traced the line where my jeans and my skin – lower – my lower back, I guess, across from – from left to right very softly and lightly.

So you said fingers traced across from left to right, how many fingers, do you recall?---I think it was three – two/three.

And you said it was at the point where the jeans met your, what, the skin – the bare skin of your back?---Yes.

Yes?---My jeans were, I think they were low risers, so it was my sacrum I guess.

Yes. And how long did the movement of his fingers on the waistline of – on the – “waistline” is probably not the right word, but I will call it that – how long did it take for his fingers to move from left to right along the waistline of your jeans and on your skin?---About – about 10 seconds.

Was the touch on your skin light in pressure or heavy in pressure or what?---It was – it was light. It was soft, light, light in touch.

Was it a steady movement across the waistline of your jeans or - - -?---Yes, it was.

Now, just going back slightly, the first thing you described was the hand on your back above the shirt?---Yes.

And you described, I think, a – was it a circular motion or a stroking motion or what at that point?---No, it – it was an – like a back and forth rubbing - - -

Yes?--- - - - from right to left like a – I don’t know, like, “I’m here”. A comforting kind of touch.

And how long did that part of it last – I mean, doing the best you can?---10 seconds, I – about 10 seconds.

And then you said that the hand moved down and under the flap of the shirt; is that right?---Yes, that’s right.

And the fingers moved up to your bare skin?---Yes, that’s right.

Yes. Okay. And was that meant to be one continuous motion that the hand went down and then under the shirt and then up to your skin?---Yes, I imagine it was.

When you received the cue what happened?---He – Geoffrey squeezed my hand. He took his hand out of my shirt and he squeezed my hand, and we went into the mechanic of the – of the lift. And I remember that because it was in juxtaposition to what had just happened; this “I’m with you” squeeze, and I – I remember the squeeze very vividly.

596    It is important to note that the effect of Ms Norvill’s evidence appeared to be that Mr Rush’s initial touching of her back was, as far as she perceived it, intended to be a “comforting” gesture; a gesture to let Ms Norvill know that he was there and ready to take her into his arms and carry her onstage. The implication appeared to be that she did not consider that part of the touch to be inappropriate. Rather, the action only became inappropriate when Mr Rush’s hand moved under her shirt. While Ms Norvill did not say so in terms, the clear implication from her evidence was that, at least so far as she perceived it, Mr Rush’s actions in moving his hand under her shirt was not only intentional, but was done for his sexual gratification.

597    Ms Norvill did not say anything to Mr Rush about this incident. While this incident occurred before Christmas and the performances still had some time to run, one of the reasons given by Ms Norvill for not saying anything about this incident was that the “run” had almost finished. Ms Norvill’s evidence was that she decided to “preference the show, and its health and wellbeing” before her own health and wellbeing and decided to “just buck up and get through”.

Mr Rush’s evidence

598    As already noted, Mr Rush gave detailed evidence about his mental preparation in the moments before he performed Act V Scene III. He considered that scene to be the biggest challenge of the whole production and could make or break a performance. There was, in his evidence, “no way of coming in under par on that level of raw primal grief”. To put the particular allegation of back-touching in context and perspective, it is important to consider Mr Rush’s evidence in this regard in more detail. While Mr Rush’s evidence concerning his preparation for and state of mind immediately preceding this scene was very lengthy, it is important to consider it in full so as to appreciate its force and impact.

And how did you – I’m going to ask you two questions, essentially. How did you physically – how did you mentally prepare yourself for that entrance? What did you do and what did you think about to get yourself in the frame of mind that you’ve described, that you’ve just mentioned?---It could vary slightly. I would always check whether it was first or not, but I always checked what was happening on the big plasma screen and normally it was around the time of Regan’s vomiting or exiting leading up to where Goneril is going – this is a page and a half where the sisters and their relationship with Edmund completely disintegrate and come into the foreground. I would then go to my room, sit very quietly and begin a process of going into as neutral a mental space as I could, working from that, the profundity of the depth of that empty world. And when the queue came, which was normally a queue for standby full company for the entrance of the dead, I would make my way out into the corridor, but avoid heading towards the side of the stage. I went through the carpark or the dock door at the rear of the theatre so that I could enter through the door that led to the stage, upstage, behind the white wall and just take my own private solo path, pretty much in the semigloom, and I would arrive down on the prompt side approximately – this settled, I mean, probably in the first previews. I might have been there much earlier than I needed to be and I didn’t want to be treading water, but it really refined itself down to I wasn’t working from a stopwatch, but I had familiarity that when Nick Masters, playing The Gentleman, comes on with the announcement that Goneril has stabbed herself at the chest, when Mark Leonard Winter is talking about the death of his father. I knew by the soundscape how to measure the rhythm of my walk around towards where I would meet and be there to just see Robyn Nevin go on who wiped across the foreground of the stage as The Fool and everyone is placed in a position of the dead.

So to be clear about it, what you’re saying is you got to the point at which you came on?---Yes.

At the time, Ms Nevin was walking across the stage - - -?---Yes.

- - - as The Fool?---Yes.

As a dead Fool, in fact?---Yes.

Yes. Yes. How long before you – if you can give me an estimate, I know it’s probably difficult, but how many seconds before you actually went on, carrying Cordelia - - -?---From arrival at that point?

…..

I just want to know how long you think you were – I know it’s a little bit - - -?---Yes. Right. Okay. I would say 30/40 seconds.

…..

All right. Well, now, you indicated that Ms Norvill stood on a structure of some sort and then – so you didn’t actually physically have to lift her. Now, I want to ask you this: in the moments when you were waiting offstage ready to take Ms Norvill in your arms to carry her on, out of the – up till the moment you made the first howl, what were you thinking about, Mr Rush? What was in your mind?---There was a graph – George Ogilvie, who I had mentioned yesterday, when I had worked with him many, many years ago – he was a very spiritual man. And he would, even with actors, take warm-ups where he would say, “Well, let’s do a walking meditation just to get the temperature of the room into focus”. And this was back in ’81. From the moment I left the dressing room and went through the terribly unattractive landscape of the dock-door area of the back of the Roslyn Packer Theatre into the gloom of the white wall behind, that, for me, became a kind of walking meditation that I hoped would reach a focus and put me into, I can only describe it as an alert state of neutrality, because there was a technical moment, but that had been so carefully choreographed in rehearsal that it became second nature - - -

What was the technical moment?---The actual placing of Ms Norvill or her stepping into my embrace with her locking her arm around my shoulder. Because that moment of pure inner-stillness, I knew I had ramp it up, instantly, into the first howl and be ready for that.

But tell us what you were thinking about. How did you get yourself in the mood to do that?

What went through your mind?---It was more shedding, rather than trying to place things in my mind. It was shedding my mind, because I wanted that howl to burst out of myself without any expectation. It’s the game actors play with themselves: you go on and do a play eight times a week, and you pretend every night that you’ve never done or said it before, and yet the audiences that come think that they’re seeing the only production, and we’re hoping that we’ve always held onto that liveliness and freshness.

599    Mr Rush’s evidence in this regard was not challenged at all in cross-examination. In summary, in the moments before the scene, Mr Rush would work on emptying or shedding his mind so as to get into the “zone” – an “alert state of neutrality” and “moment of pure inner-stillness” – and prepare himself not only for the difficult technical act of carrying Ms Norvill onto the stage, but also to prepare for ramping himself up so that the first “howl” would burst out of him. The allegation is that, in these very moments, the 30 or 40 seconds that Mr Rush stood in the place from where he was to pick up and carry Ms Norvill onto stage, he rubbed Ms Norvill’s back under her shirt, apparently for his own sexual gratification.

600    Mr Rush denied that allegation. He denied that, while waiting offstage immediately before Act V Scene III, he ever touched or stroked Ms Norvill’s lower back, or moved his hand under her shirt and brushed his fingers across her lower back. His evidence was:

Now, I want to ask you about something else, Mr Rush. At any time when you were waiting offstage to go on with Ms Norvill did you ever place your hand on her lower back, above her – on the outside of her – the shirt she was wearing?---No.

Did you ever move your hand from above the shirt to under her shift?---No, I did not do that.

Did you brush your fingers across the skin of her lower back?---No, I did not.

Did you – was there any other – well, did you ever touch her on the lower back, outside her shirt, gently – or rubbing your fingers over her lower back?---No, I did not.

601    In cross-examination, it was put to Mr Rush that he had, amongst other things, moved his hand inside Ms Norvill’s shirt and, in a motion which lasted 20 seconds or so, moved his fingers along the waistline of Ms Norvill’s jeans from right to left. Mr Rush denied that he had done that. It was then put to Mr Rush that, had he had engaged in that conduct, there would have been no “innocent explanation” for it. While the expression “innocent explanation” was not expanded on, the question appeared to be directed at whether Mr Rush could have touched Ms Norvill’s back in this manner accidentally, or for reasons strictly associated with the lifting action which was to follow. Mr Rush’s evidence in that regard included as follows:

Now, Mr Rush, if you had done that, can I suggest to you there would be no innocent explanation for it, would there?---If.

Yes. If?---There would be no innocent explanation for it unless it was a rapport between actors who had decided, if this contact of feeling the – not the coldness – because by what Shakespeare tells us, the hanging and the death of Cordelia and Lear killing whoever the thug was that Edmund had sent to make that happen - - -

But - - -?---She would be freshly dead but that was not the case of what I needed for that moment in the play.

….

Yes. You sort of, I think, suggested that, unless it was consensual, there would be no innocent explanation for it. I think that was the effect of the answer you gave?---Yes. It’s not an area of spontaneity that I would have remotely entered into unless it had been established as a shared motivation for preparation for that scene.

602    The general gist or effect of Mr Rush’s evidence appeared to be that he had not discussed or agreed with Ms Norvill that he could or should touch her back in the manner described for any purposes related to the performance. He would not have touched Ms Norvill’s back in the manner described spontaneously; that is, without having discussed it with Ms Norvill first. He may also be taken to have agreed with the proposition that he could not have accidently touched Ms Norvill’s back in the particular manner that had been put to him, and that therefore there could be no innocent explanation for any such action. It does not, however, follow that he agreed that he could not have touched Ms Norvill’s back in any way at all immediately before, or in the course of, lifting and carrying her onto the stage.

Other evidence

603    The particulars of this alleged incident which were provided by Nationwide and Mr Moran referred only to Mr Rush touching Ms Norvill’s back. In the course of giving her evidence, however, Ms Norvill also referred to Mr Rush touching her fingers while they were waiting offstage immediately before Act V Scene III. Her evidence in that regard was as follows:

And in the rehearsal period, did he – before the – before the actual cue when he held out his arms and – for you to sit into his arms, in the rehearsal period, did he ever touch you while he was – while you were standing on the chair?---No.

Did that change in the rehearsal period? Sorry, in the – I’m so sorry, I withdraw that.

Did that change in the previews?---Yes, it did.

All right. In what way did it change?---Geoffrey would arrive and he would sometimes place his left hand on my lower back. I thought it was a way for him to signal that he was there or ready.

Because you had your eyes closed?---Yes.

Okay. Did something else change? Did he start to do – we’re still in the preview period – did he start to do something else – make some – another motion?---Yes.

And what was that?---Geoffrey started to take his left hand and lightly, like, brush his fingers across my fingers and he started – he would trace on my palm with his fingers.

When you say trace on his palm with your fingers, how many fingers are we talking about, do you recall?---All of them – three, four.

And on your palm, what sort of motion was it? Was it circular? Was it back and forth?---It was circular.

Right. Thank you.

HIS HONOUR: Sorry, you said this changed – did this happen once or more than once?---More than once.

Yes, how many times?---During the whole run?

Yes. I think at the – sorry, I should have said at the moment you’ve just spoken about it changing in the previews, but it continued after the previews, did it?---Yes, it did.

And roughly how many times do you think this occurred?---Eight.

Yes?---Eight times roughly, to the best of my memory.

MR BLACKBURN: Thank you. And apart from the circular motion on the palm of your hand, you said before that he would touch the fingers of your hand as well?---Yes,

like - - -

Yes, could you describe what he actually did?---It would be like a – like a brushing, like a – like lightly brushing or part – his fingers over the tops of my fingers like a fondling, a - - -

Fondling what, your fingers?---Yes.

So I think you said brushing his fingers lightly over the tops of your fingers; was that one of the things that happened?---Yes.

And then fondling your fingers?---Yes.

And those gestures, how long – the touch on your fingers, how long did they last, seconds I mean?---10 seconds, you know, 10 maybe 20 seconds.

And how often did that happen?---During previews?

Yes, altogether?---Yes, I – you know, I – I think about eight, 10 times maybe, but, you know, more than a few.

All right. And were these gestures that you’ve described always together, that is, the circling the palm and playing with the fingers, did that all happen at the same time – I’m sorry, I will withdraw that. Did the two gestures always happen together?---Yes, as I remember it they – they did. Yes.

All right. On your palm was the touch heavy or was it light?---It was light.

And on your fingers was the touch heavy or light?---It was light.

Was it part of a handhold or not?---No.

604    As already noted, Nationwide and Mr Moran did not include any allegation that Mr Rush touched Ms Norvill’s hands or fingers in its particulars of truth. While no objection was taken to Ms Norvill’s evidence concerning these alleged incidents, it should in fairness be noted that senior counsel for Mr Rush did object to Mr Rush being questioned about them in cross-examination on the basis that it was outside the particulars and Ms Norvill’s witness statement did not refer to the incidents in question. The cross-examination was nonetheless permitted.

605    Mr Rush denied engaging in this conduct.

606    Nationwide and Mr Moran did not apply to amend their pleading or particulars of truth to include these incidents, though in their final submissions they appeared to contend that if found to have occurred, they constituted inappropriate behaviour.

607    It is, however, by no means apparent that Ms Norvill herself considered that Mr Rush’s actions in touching her hands or fingers was inappropriate behaviour. As already noted, she did not include this allegation in her witness statement. As to whether she had ever said anything about this allegation before, she gave the following evidence:

You see, Ms Norvill, you knew that – I withdraw it – I withdraw that. You see, Ms Norvill, you never said before yesterday that during the previews Mr Rush rubbed your palm, touched your fingers, fondled your hands. I think you actually said it happened eight to 10 times on one occasion. You had never said that before yesterday, had you?---I had.

I see?---I didn’t know whether it should be included, because it’s difficult to define whether that action is crossing boundaries. But, actually, I thought it was important to say, because I realised that that touch wasn’t professional and it allowed for the touch that was in appropriate to happen. That’s why I included it. I thought it was – the context was important.

Not sufficiently important to put it in the statement that you signed and told us yesterday was complete?---Well, I had it in the statement in an earlier draft.

608    What Ms Norvill appeared to be saying was that she did not really consider that Mr Rush’s actions in touching her hands or fingers was necessarily inappropriate or had necessarily crossed the “boundaries”. Rather, she thought that it was “unprofessional” because it “allowed for the touch that was in appropriate [sic] to happen”. The inappropriate touch that Ms Norvill appeared to be referring to there was Mr Rush’s touching of her back as she had described. That was why, at least according to Ms Norvill, this allegation was removed from her statement.

Findings

609    This incident or allegation is different in an important respect from most of the other incidents or allegations. The difference is that, subject to one qualification to which reference will be made later, this incident was unlikely to have been seen or witnessed by anyone else. On that basis, on one view of it at least, it largely comes down to a question of Ms Norvill’s word against Mr Rush’s word. That is not to say, however, that broader questions of credit and reliability may not play a significant part in resolving the conflict between the evidence of Ms Norvill and Mr Rush.

610    On balance, I am not persuaded that Mr Rush intentionally touched and rubbed Ms Norvill’s back in the manner described by her. I do not accept that Ms Norvill’s evidence about this incident was entirely reliable or credible. I accept that it is possible and plausible that Mr Rush might have touched Ms Norvill’s back immediately before he picked her up to carry her on stage for the scene. If that happened, however, I am not persuaded, on the evidence as a whole, that Mr Rush put his hand under Ms Norvill’s shirt. Nor am I persuaded that Mr Rush intended to touch Ms Norvill’s back for his sexual or personal gratification.

611    The following considerations have led me to these conclusions.

612    The first consideration concerns the plausibility of Ms Norvill’s evidence about this incident. As has already been noted, Mr Rush was a man dedicated to his craft. He was the consummate professional. Mr Rush’s lengthy evidence concerning his preparation for Act V Scene III, and his mental state in the 30 or 40 seconds before carrying Ms Norvill on stage, was extracted earlier. The point, in short, is whether it is plausible that, having worked to get himself into the “zone” before this critical scene, Mr Rush would engage in a gratuitous act of rubbing Ms Norvill’s back under her shirt, apparently for his sexual gratification. How is that compatible with Mr Rush’s recognition of the critical nature of the scene and the fact that “there was no way of coming in under par on that level of raw primal grief” which he had to convey? How is it compatible with Mr Rush’s unchallenged evidence that he went through a process of emptying his mind so as to put himself into a “neutral but alert state of mind so the first “howl” would burst out of him as he carried Ms Norvill onto the stage?

613    It would appear that Ms Norvill appreciated the state of mind that Mr Rush was in during the moments before he picked her up and carried her onto the stage. When asked why she did not “swat” Mr Rush’s hand away when he was, on her version of events, touching her hand or fingers, Ms Norvill gave the following evidence:

Is there a reason for that?---We were on stage. I hadn’t – the audience was right there. I was worried about making noise. I also didn’t want to disturb Geoffrey as he was about to go on stage and deliver one of the iconic speeches in the play. It was a huge task for him. It - - -

614    In all the circumstances, I consider this allegation against Mr Rush implausible.

615    It was submitted on behalf of Mr Rush that there was another peculiarity about this alleged incident. The submission was that it was effectively a one-off. Ms Norvill did not suggest that Mr Rush’s action in touching her back under her shirt before carrying her onto stage was a regular occurrence. On her version of events, Mr Rush touched her on the back again in a performance some weeks later, but she told him to “stop it” and he did so. Even if that evidence is accepted, and it is inferred that Mr Rush might have intended, on that second occasion, to again touch Ms Norvill’s back under her shirt, that would mean that Mr Rush engaged in such conduct in two performances out of somewhere in the order of 50, and in circumstances where those two incidents were, rather inexplicably, separated by weeks. It will be recalled also that Ms Norvill did not say that she spoke to Mr Rush or anyone else about Mr Rush’s actions on the first occasion. If her version of events is accepted, why then did he stop doing it, at least until the second occasion some weeks later.

616    I accept that it might seem a bit unusual that the two incidents which involved Mr Rush touching Ms Norvill’s back occurred some weeks apart. I do not, however, accept that it is accurate to describe this incident as a “one-off”, particularly when it is considered in the context of Ms Norvill’s evidence as a whole. Nor do I think that this provides any particularly compelling reason to find that this incident did not occur.

617    The second consideration which led me to arrive at the conclusions I have reached in relation to this incident concerns the reliability and credibility of Ms Norvill’s evidence, both generally and in relation to this particular incident.

618    It is unnecessary to repeat or reiterate what has already been said about Ms Norvill’s reliability and credibility generally.

619    As for the reliability of Ms Norvill’s evidence concerning this particular incident, it would appear that when Ms Norvill met Ms Crowe on 5 April 2016, she gave Ms Crowe a different description of the incidents involving Mr Rush touching her while they were both backstage. In her email, Ms Crowe recorded that Ms Norvill told her that “[o]ther members of the cast would have seen him [Mr Rush] touching her backstage, but didn’t do anything”. That is not consistent with Ms Norvill’s evidence. The only incidents involving Mr Rush touching her backstage that Ms Norvill referred to in her evidence were the two incidents involving Mr Rush touching her back. In her evidence, however, Ms Norvill did not suggest that any members of the cast would have seen these incidents, or that any members of the cast in fact saw these incidents but didn’t do anything. The overall effect of her evidence was that nobody else would have seen these incidents.

620    The account of the backstage touching that Ms Norvill gave Ms Crowe also appears to differ in material respects from her evidence. It does not appear that Ms Norvill told Ms Crowe that Mr Rush touched her back before he picked her up. Rather, she told Ms Crowe that Mr Rush would “grope her as he picked her up”. Even accepting that Ms Crowe’s email purported to be only an “outline” of what Ms Norvill told her, this is nevertheless a different description of the alleged backstage touching.

621    Aside from what was said at the meeting between Ms Norvill and Ms Crowe on 5 April 2016, there is no evidence that Ms Norvill specifically complained to anyone at the STC about Mr Rush touching her back under her shirt. Nor did she specifically raise it with Mr Armfield, Ms Nevin, Ms Buday or even any of the younger members of the cast. Ms Norvill sought to explain this in her evidence. Her evidence was that she decided to “buck up and get through [it]” and that she told herself to “[p]retend it’s not happening” and “[y]ou’ve only got a couple more days”. In fact, Ms Norvill claimed that this incident occurred in a performance of the play which occurred before Christmas, so there was in fact a few more weeks of performances. On the whole I do not consider that Ms Norvill’s explanation for not having said anything to anyone about this incident was particularly persuasive.

622    The third consideration, which has already been adverted to, is that Ms Norvill’s evidence concerning this incident was entirely uncorroborated. The explanation for that is that on Ms Norvill’s account nobody else would or could have witnessed this incident. There is, however, one possible qualification to that proposition. That qualification is that there was some evidence to suggest that Mr Gilfedder, playing the messenger, was likely to be in the vicinity of the area where Mr Rush and Ms Norvill were located immediately before Mr Rush carried Ms Norvill onstage in Act V Scene III. The script of the play indicates that the messenger exits the stage shortly before Lear enters with Cordelia in his arms. The video of the play which was in evidence reveals that the messenger’s exit in this scene is about 15 to 20 seconds before Lear enters. The messenger enters the stage again a few minutes later. It is perhaps open to infer that, after exiting the stage, Mr Gilfedder may have waited offstage in the vicinity of Mr Rush and Ms Norvill, particularly as he was due to re-enter the stage shortly thereafter. Mr Gilfedder was not called to give evidence.

623    On balance, however, I do not consider that much, if anything, turns on the fact that Mr Gilfedder may have been nearby when this alleged incident occurred. Ms Norvill’s evidence was that Mr Gilfedder ran past them, presumably as he exited the stage, and she didn’t believe that anyone was nearby at the time of the incident. She also said that in any event she and Mr Rush were positioned in such a way that, even if someone had been there, that person could not have seen what was going on because Mr Rush’s body would have been “blocking the action”. Mr Rush’s evidence was that he was not conscious that Mr Gilfedder was backstage at this point in time, though that appears to have been in part because he, Mr Rush, was “in the zone” at that point in time.

624    In any event, the fact remains that Ms Norvill’s account of this incident was uncorroborated. The evidence relied on by Nationwide and Mr Moran to discharge their burden of proof in relation to this incident was essentially limited to the evidence of Ms Norvill. In all the circumstances, and having regard to the evidence as a whole, I am not persuaded that Ms Norvill’s account of this incident was credible or reliable. I prefer Mr Rush’s evidence, including his denial that he engaged in the conduct described by Ms Norvill.

625    I accept that it is both possible and plausible that, in the 30 or 40 seconds before Mr Rush picked Ms Norvill up to carry her on stage, he may have touched her back in a way which, to use Ms Norvill’s word, was “comforting”; a way of reassuring Ms Norvill that he was in position to pick her up and carry her on stage at the appropriate moment. What I do not accept, however, is that Mr Rush put his hand under Ms Norvill’s shirt and rubbed the bare skin on her back as Ms Norvill described in her evidence. Nor am I persuaded, on the whole of the evidence, that Mr Rush touched Ms Norvill in a gratuitous, unnecessary or sexual way, or that he intended to touch Ms Norvill for his own sexual gratification.

626    I should finally add that I am also not persuaded that Mr Rush touched and rubbed Ms Norvill’s fingers or hands in the manner she described in her evidence. My reasons for not accepting Ms Norvill’s evidence in that regard are essentially the same as my reasons for not accepting her evidence about Mr Rush touching her back in the manner described.

627    To those reasons may be added the fact that Ms Norvill did not include any evidence about Mr Rush touching her fingers and hands in her witness statement. It is presumably for that reason that Nationwide and Mr Moran’s particulars of truth did not include particulars of this allegation. Ms Norvill’s explanation for not including evidence of these incidents in her statement was that she was not sure that they involved Mr Rush “crossing boundaries”. It is difficult to accept that explanation given Ms Norvill’s description in her evidence of Mr Rush’s conduct in this regard. I reject Ms Norvill’s evidence that Mr Rush’s touching of her fingers or hands somehow “allowed” the conduct which she considered to be inappropriate, the incidents when Mr Rush touched her back, to occur.

628    I again accept that it is possible and plausible that Mr Rush may on occasion have made contact with Ms Norvill’s hands or fingers in the short period before he picked her up and carried her on stage for Act V Scene III. If such contact was made, however, on balance I consider that the contact was either inadvertent, or was intended to be a reassuring or comforting gesture, not a gratuitous or sexual gesture. Such behaviour could not, in those circumstances, be considered to be inappropriate, let alone scandalously inappropriate, or scandalously inappropriate behaviour of a sexual nature.

629    In any event, Nationwide and Mr Moran did not seek leave to amend their particulars of truth to include the allegation that Mr Rush had touched Ms Norvill’s hand and fingers, even after Ms Norvill gave evidence about those incidents.

Allegation seven: Further touching of Ms Norvill’s back

630    The incident was said to have occurred during the final scene in a performance in the period 4 to 9 January 2016. On this occasion, again immediately before he carried Ms Norvill onto the stage, Mr Rush was alleged to have started to touch Ms Norvill’s lower back on top of her shirt. He then gently rubbed his fingers over Ms Norvill’s lower back from right to left.

Ms Norvill’s evidence

631    Ms Norvill’s evidence was that she believed this alleged incident occurred during the performance on 8 January 2016. Her evidence was:

Now, so something happened. Could you tell the court what it was?---Yes. Geoffrey arrived beside the chair ready for our cue to go on stage and he placed his left hand on my lower back again, kind of did the movement from right to left, and I - - -

Just pausing there, you said he placed his hand on your lower back. Was it above the shirt or below the shirt on this occasion?---It was above the shirt.

Yes. And you said movement from left to right, I think – sorry, did you say left to right? Right to left, I’m sorry?---Right to left, yes. That’s right.

What was it that he actually did?---He placed his palm on my lower back, above my jeans but above my shirt, and kind of rubbed, I guess – rubbed my lower back.

You – witness described a back and forth motion with her hand.

HIS HONOUR: Yes.

MR BLACKBURN: Exactly whereabouts on the lower back was it? Was it on the line of your jeans or it was above that or where was it?---I would say it would be on the line of my jeans, in the small of my back.

And what happened when Mr Rush started doing that?---I whispered, “Please stop that”.

And in what volume did you say, “please stop that”?---Very softly.

And what happened? Did he stop?---Yes, he did.

How long did that motion with his hand go on before you said, “please stop that”?---A couple of seconds.

Did Mr Rush react in any other way?---No, he didn’t acknowledge that I had spoken.

But he stopped?---Yes.

632    Ms Norvill did not say anything to Mr Rush about this incident. She said that “[a]t the time I felt that I had spoken and he had heard me”.

Mr Rush’s evidence

633    Mr Rush denied that this incident occurred.

Findings

634    On balance, I am not persuaded that Mr Rush intentionally touched Ms Norvill’s back on this occasion in the manner described by her in her evidence. Nor do I accept that Ms Norvill told Mr Rush to “please stop that”. In all the circumstances, I do not accept that Ms Norvill’s evidence about this incident was entirely reliable or credible. I prefer Mr Rush’s evidence.

635    My reasons for arriving at these findings are essentially the same as my reasons concerning the allegation that Mr Rush touched Ms Norvill’s back in similar circumstances in a pre-Christmas performance of the play. I am not persuaded that the account of this incident given by Ms Norvill was plausible, or that her evidence was reliable or credible. While I again accept that it is possible and plausible that Mr Rush may have touched Ms Norvill’s back shortly prior to picking her up and carrying her onto the stage, I am not persuaded that, if that occurred, the touching was gratuitous, unnecessary or sexual in nature. Nor am I persuaded that, if any such touching occurred, Mr Rush intended to touch Ms Norvill for his sexual gratification.

Allegation eight: Texting think of you “more than is socially appropriate”

636    Like the stage-door Johnny crush” allegation, there is no dispute that Mr Rush sent a text to Ms Norvill in which he stated that he thought of her “more than is socially appropriate”. That text message was sent on 10 June 2016, almost six months after the performances of King Lear had concluded. The only question is whether, considered in context, the sending of this message proved the substantial truth of any of the imputations conveyed by the publications.

637    Before considering the 10 June 2016 text message, it is necessary to say something about the text messages that were exchanged between Mr Rush and Ms Norvill throughout 2014. Those text messages put the 10 June 2016 text message into some sort of context.

The 2014 text messages

638    Ms Norvill’s evidence was that from about early 2014 she began communicating electronically with Mr Rush via text message, Viber and WhatsApp. She did not retain any record of her Viber and WhatsApp messages because she had lost some of the mobile phones she owned in the past. She had, however, retained a record of the text messages she exchanged with Mr Rush during 2014. To appreciate the nature of the test messages it is necessary to set them out in full.

20 Apr 2014, 11:47 am

Ms Norvill: See you tonight Jet Lee Thrust x

Mr Rush: …… nourishing delicious Ovaltine Oval ….. a drink afterwards JERROBANG xo-xo Jittery Rouche

26 Apr 2014, 6:39 pm

Ms Norvill: Ahem God of Generic Lust. We are Supper-ing tomorrow night after the showsy. If you’re about. Yullis on crown about 7. Ear and Jam Novelty xx

26 Apr 2014, 7:46 pm

Mr Rush: …dear Ear and Jam Novelty (that REALLY is the best – cos yr stage persona in GI is such a deliciously dippy bright food-colouring macaroon loon) … I’m lunching in Patonga and then have a 2:45a.m. pickup for RA transformation makeup on Monday pre-dawn but I LOVE yr timely invite and shall swing by for a dram and an appetiser - (ain’t you sweet - and thoughtful!) xo Grigorio Rucci (failed stocky alcoholic Italian tenor) …

27 Apr 2014, 9:10 am

Mr Rush: …..actually I think we might get away with “Meringue Jam Novelty” - moniker confection perfection (wasn’t up all night devising - woke and it popped into my head - I felt like a very minor poet but enjoyed the momentary creative pop! xReferee Gush

27 Apr 2014, 6:53 pm

Mr Rush: …hey Erogenous Naval ( ooh!) - you guys still doing Yullis circa 7? X Gee Ah!

Ms Norvill: Ah Geraldine Nuf Nuf. Yes we are but it’s only Zahra and moi and a few stragglers. But come. We are out the back x

Mr Rush: ….schweet! (I can only stay briefly as I have a 2:45am pickup - the glamour of movies) xgeraldine nuf nuf (whom I think I should play quite soon)

Ms Norvill: do it GR BANG BANG

27 Apr 2014, 9:39 pm

Mr Rush: …. I remain enthralled - what a cool vibrant gathering 2nite …. glad yr into the Newman phenomenon - and the Classics …. stay intriguingly and randomly in touch ….. c u round - I hope xo Gary Reez

28 Apr 2014, 9:35 am

Ms Norvill: Gary, ‘Twas a delight to see the Gentle Riddler last night. Such very good company. I will stay in touch and as intriguing as an Eery Jaunty Novella. Thank you and the God of Ra for the meal. Very kind. See you very soon I hope xoxo Meringue Jam Novelty

28 Apr 2014, 2:32 pm

Mr Rush: …..Airy Ninja Novella! - you are so fascinatingly extraterrestrial - what a joy to have been in your orbit …. not GRAVITY – dazzling LEVITY! xo Adrenalin Rush

24 May 2014, 10:42 am

Ms Norvill: Giddy McHeadRush..! xx How’s it? Myself and the team are on our last legs of the tour. Mildly entertaining but mostly offending the rural towns of Australia.

Genuinely Plushly.. I’ve made a plan to be in the US next year for a while and thought id ask you if your offer of A1 assistance was still a plausible and palatable one… JERROBANG.. JERROBANG. Let me know, BPAY aka Ellen DeJeanerous

10 June 2014, 2:24 pm

Mr Rush: …Bear in mind Whoville! - my absolute pleasure, you talented edgy impy thesp - it just flowed …. glad you liked xx GRR!

28 Aug 2014, 3:37 pm

Ms Norvill: Gruff Gruff. It’s my birthday. If you’re in Sydney come celebrate it with me xx EJ

3 Sep 2014, 11:47 pm

Mr Rush: …. Error Ginger Nutella! - beyond delightful to surprisingly collide again tonight …. yr gonna rock in neo-Rostand - and T Williams wrote for amazing idiosyncratic actrines like you …. play, just play!! …. xo Giraffe-y Whoosh!

4 Sep 2014, 4:00 pm

Ms Norvill: Jersey Cream Filled Puff. So excellent to see you also. Can’t wait to catch your Leary King. I was thinking last night I hope we get to work together soon. ebay xxx

Mr Rush: ….. ditto on all those fronts! (am I cream-filled!!?) …. I spent too much time today tweaking and improving yestereve’s moniker - “Aero Ginger Nutella” is better - more your exotic blend of textures, taste and tang …. I really look fwd to another serving of curious charm tonite! x

5 Sep 2014, 1:21 am

Mr Rush: ….“Galapagos apace, you fiery-footed steed!” …. you ignite; you cut everything into little stars …. another civil night, gentle night, loving black-browed night …. the face of heaven so fine …. yr an unbalancing social treat - Loved colliding again - more whenever … maybe weekend birthday - would love to toast! …. xo

6 Sep 2014, 5:55 pm

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

Mr Rush: ….. invested NormaJean Waybill! - is mid-later eve socially acceptable? …. thx for yr chunky and really pleasurable birthday offering! xo G

Ms Norvill: Of course Double Jeopardy Shush Shush.

Come when you can x

12 Sep 2014, 2:10 pm

Ms Norvill: Gatsby de Bottlebrush.. It was lovely having you at my birthday celebrations. Hope filming is going well this week. I’m heading to the Children of the sun tonight. Hopefully see you there. I like our collisions it gives a glee to the usual foyer glum.

Talk soon,

Bear ‘n’ Grin x

639    As has already been noted, those 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”.

640    It is important to consider the 10 June 2016 text message in that context.

The 10 June 2016 text message

641    The statement in the text message upon which Nationwide and Mr Moran rely should not be considered out of context or in isolation. The entire text message is extracted earlier in these reasons. It is set out again for convenience:

…. 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 emoji1) - 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 …. dancing emojihand emoji

xo Gregarious Raunch head emojiair emoji

(Emphasis added.)

Ms Norvill’s evidence about the text

642    Ms Norvill did not suggest that she had any difficulty with the contents of the text message. She did not suggest that she was specifically troubled by Mr Rush’s statement that he thought of her more than was “socially acceptable”. Nor was she apparently troubled by the emoji. She did not say that she thought that Mr Rush was propositioning her, or “testing the waters”, as was put to Mr Rush by senior counsel for Nationwide and Mr Moran. Ms Norvill’s evidence was that, it was the fact that Mr Rush had sent her a text message that concerned her, not the contents of the text itself.

Mr Rush’s evidence

643    Mr Rush was cross-examined at length about the text. His evidence about the statement “thinking of you (as I do more than is socially appropriate)” and the emoji included the following:

You had been thinking of her more than is socially appropriate for some time?---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.

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?---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.”

644    Mr Rush denied that he was literally thinking of Ms Norvill more than was socially appropriate. The gist of his evidence was that he was joking.

645    As for the emoji, he did not accept senior counsel for Nationwide and Mr Moran’s description of the emoji and effectively denied that it was somehow sexual in nature:

So you put in that little emoticon with its tongue hanging out there. What’s he doing? Is he panting?---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 [sic] have put Fozzie Bear in.

….

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 away of telling her. You intended to tell her, didn’t you, that you were very attracted to her?---That was not as – its intention at all. And I’m sure that her on the receiving end would have found it amusing.

646    Mr Rush denied that, in sending the text which included the statement and emoji which were the focus of much of the questioning, he was “throwing out an invitation” or “testing the water”.

Ms Buday’s evidence

647    Ms Buday was the only other witness who was questioned about the text message. The premise for the questions that were put to her about the text message by senior counsel for Nationwide and Mr Moran was that the text message was inconsistent with Ms Buday’s evidence that Mr Rush was a good mentor for younger actors. In any event, it was abundantly clear from Ms Buday’s evidence that she saw nothing sinister or improper in the text message. Indeed, she considered it to be “charming. She rejected the suggestion that it was indicative of bad mentoring.

Findings

648    I reject the submissions advanced by Nationwide and Mr Moran in relation to this text message. In particular, I reject the submission that the statement “I was thinking of you (as I do more than is socially appropriate)”, considered either with or without the emoji, was an “invitation”, or that Mr Rush was “putting it out there”. An invitation to do what? Putting what out there? By this point in time, Mr Rush had known Ms Norvill for some time. The 2014 text messages between them suggested that, at least at that point in time, they were on close and familiar terms. It may be inferred from the previous text messages, which were in some respects far more flirtatious than this one, that if Mr Rush had wanted to ask Ms Norvill out for coffee, or a drink, or dinner, he would have done so. There was no evidence that he ever did. There was, of course, evidence that Mr Rush and Ms Norvill had socialised together in 2014, though they were invariably group events. It will also be recalled that Mr Rush and Ms Norvill had gone out to dinner and attended a play together in November 2015, though on that occasion Mr Winter was also there and Mr Rush’s daughter accompanied him to the play.

649    Mr Rush’s innocent explanation for the text should be accepted. Read fairly and in context, Mr Rush was apologising for missing Ms Norvill’s opening night, telling Ms Norvill that he had not forgotten her and explaining why he hadn’t been in contact, and asking Ms Norvill how she was going. The text was plainly cryptic, playful, and humorous and contained some highly complimentary and perhaps even flirtatious remarks. In that regard, however, it was no different to the texts that the pair had exchanged throughout 2014. Ms Norvill saw nothing wrong with those texts. Subject to one contextual qualification, which I will address shortly, it is difficult to see why this text should be read or construed any differently. I should add that I also do not accept that the emoji with the tongue poking out, about which there was considerable evidence, discussion and debate, involved any inappropriate sexual innuendo, particularly when considered in the context of the text message as a whole. I also accept Mr Rush’s evidence concerning his intentions in employing that emoji.

650    It may be accepted that the June 2016 text must also be construed in the context of the relationship between Mr Rush and Ms Norvill as at June 2016. By this point in time, as far as Ms Norvill was concerned, the nature of her relationship with Mr Rush had changed. It is readily apparent that Ms Norvill’s experience during the performances of King Lear had not been positive. Something at some stage appears to have upset and unsettled her and, by the time she received the June 2016 text, she had met with Ms Crowe and made allegations of sexual harassment against Mr Rush. It is, in those circumstances, not difficult to see why Ms Norvill was unsettled by the fact that Mr Rush had sent her the text in June 2016.

651    Importantly, however, nobody had told Mr Rush about Ms Norvill’s allegations. Ms Norvill herself had said nothing to Mr Rush about her concern about his behaviour at any time during the rehearsals or the performances of King Lear, or any subsequent time. The STC had not told Mr Rush that Ms Norvill had made allegations against him, let alone given him an opportunity to respond to them. Indeed, it is readily apparent that Mr Rush was oblivious to the fact that Ms Norvill was in any way upset with him, or that their relationship had changed. That was the effect of Mr Rush’s evidence. It is also consistent with the terms of the text itself, which appears to continue in exactly the same vein as the 2014 texts.

652    It may equally be readily accepted that, had Mr Rush engaged in any of the behaviour during the rehearsals and performances of King Lear that was described by Ms Norvill in her evidence, the 10 June 2016 text would take on an entirely different and more sinister complexion. For the detailed reasons I have already given, however, I am not satisfied on the balance of probabilities that Mr Rush engaged in that behaviour.

653    Returning to the text itself, no doubt the views of reasonable people may differ as to whether it is appropriate for a senior 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. Some may think it inappropriate in whatever context. Many others may not. Ms Buday, who aside from Mr Rush and Ms Norvill, was the only other witness who was asked about the text message, plainly did not consider it to be inappropriate.

654    For my own part, I do not accept that, when considered in context, the text could properly be said to be inappropriate. I should add that the relevant context includes that, by the time Mr Rush sent the text, Mr Rush and Ms Norvill were no longer working on the same play together and Mr Rush could not be said to have been in any position of authority or influence over or in respect of Ms Norvill. They were simply two adult actors; albeit one being older and more experienced than the other.

655    In any event, the relevant question is not simply whether the text was or was not inappropriate. The question is whether the text is capable of proving the substantial truth of any of the pleaded imputations. Nationwide and Mr Moran alleged that the 10 June 2016 text went to proving the substantial truth of only one imputation, the imputation that Mr Rush was a pervert. That is explicable on the basis that the other imputations all relate to Mr Rush’s behaviour while working on the STC’s production of King Lear. The text was sent well after the time that Mr Rush and Ms Norvill had finished working on King Lear.

656    In all the circumstances I am not satisfied on the balance of probabilities that the 10 June 2016 text message that Mr Rush sent Ms Norvill proves the substantial truth of the imputation that Mr Rush is a pervert.

Summary of findings and conclusion in respect of the truth defence

657    I am not satisfied, on the balance of probabilities, that Mr Rush engaged in any of the conduct or behaviour particularised in paragraphs 15, 16, 17, 18, 19, 22 and 23 of the Second Further Amended Defence filed by Nationwide and Mr Moran. In summary, I am not satisfied on the balance of probabilities, that:

(a)    on one occasion during the rehearsals of Act V Scene III, Mr Rush hovered his hands over Ms Norvill’s torso, pretended to caress or stroke her upper torso and made groping gestures in the air with two cupped hands which simulated him groping and fondling Ms Norvill’s breasts;

(b)    during rehearsals Mr Rush regularly made comments or jokes about Ms Norvill or her body which contained sexual innuendo;

(c)    during rehearsals Mr Rush made lewd gestures in Ms Norvill’s direction and on a number of occasions looked at Ms Norvill while 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;

(d)    during the performance of Act V Scene III in a preview performance of King Lear, Mr Rush did not touch Ms Norvill’s hand and face as had repeatedly rehearsed, but rather moved his hand so that it traced down Ms Norvill’s torso and across the side of her right breast;

(e)    during a performance of the play in mid to late December 2015, just before carrying Ms Norvill onto the stage for Act V Scene III, Mr Rush placed his hand on Ms Norvill’s lower back above her shirt and moved his hand under her shirt and along the waistline of Ms Norvill’s jeans, brushing across the skin of her lower back for about 20 to 30 seconds;

(f)    during a performance of the play between 4 and 9 January 2016, Mr Rush again touched Ms Norvill’s back and rubbed his fingers along her lower back from right to left before carrying her onto stage for Act V Scene III.

658    I accept that Mr Rush described having a “stage-door Johnny crush” on Ms Norvill during an interview with a journalist. On balance, however, I find that Mr Rush’s statement to the journalist was, and was intended to be, a light-hearted joke and a compliment to Ms Norvill. While some might consider it to have been a poor choice of words, I am not satisfied on the balance of probabilities that the statement comprised inappropriate behaviour in any relevant sense. Nor am I satisfied on the balance of probabilities that the making of that statement: constituted scandalously inappropriate behaviour in the theatre; constituted inappropriate behaviour of a sexual nature in the theatre; meant that Mr Rush was a pervert; meant that Mr Rush had behaved as a sexual predator while working on the STC’s production of King Lear; or meant that Mr Rush had engaged in inappropriate behaviour against another person over several months while working on the STC’s production of King Lear.

659    I also accept that Mr Rush sent a text message to Ms Norvill on 10 June 2016 in which he said, amongst other things, that he thought about her “more than is socially appropriate. I am not, however, satisfied on the balance of probabilities that the sending of that text, or the making of any statement in it, or the inclusion of any emoji within it, constituted inappropriate behaviour in any relevant sense. Nor am I satisfied on the balance of probabilities that the making of that statement meant that Mr Rush was a pervert.

660    It follows that I am not satisfied that Nationwide and Mr Moran have proved, on the balance of probabilities, the substantial truth of any of the imputations that have been found to have been conveyed by the poster, the 30 November 2017 articles and the 1 December 2017 articles. Nationwide and Mr Moran’s defence of justification pursuant to s 25 of the Defamation Act accordingly fails.

CONCLUSION IN RELATION TO LIABILITY

661    Mr Rush has discharged his onus of proving that all but two of the pleaded imputations were conveyed by the three matters complained of.

662    Nationwide and Mr Moran have failed to discharge their burden of proving the substantial truth of the imputations that have been found to have been conveyed by the matters complained of. Their defence of justification accordingly fails.

663    It follows that a verdict must be entered in Mr Rush’s favour.

664    The remaining questions concern damages.

DAMAGES

665    Mr Rush claimed that, if the matters complained of were found to be defamatory, Nationwide and Mr Moran should be ordered to pay him general compensatory damages for non-economic loss, including aggravated damages. He also claimed that the defamatory publications caused him economic loss and that accordingly Nationwide and Mr Moran should be ordered to pay him special damages in respect of that economic loss.

Compensatory damages

666    Once a publication is found to be defamatory, damage is presumed: Bristow v Adams [2012] NSWCA 166 at [20]-[31].

667    Section 34 of the Defamation Act provides that “[i]n 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 [applicant] and the amount of damages awarded”.

668    Past authorities shed some light on what might be considered to be the “appropriate and rational relationship” for the purposes of s 34 of the Defamation Act.

669    In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60, a majority of the High Court noted that there are three purposes to be served by damages awarded for defamation: consolation for the personal distress and hurt caused to the applicant by the publication, reparation for the harm done to the applicant’s personal and (if relevant) business reputation, and vindication of the applicant’s reputation. The first two purposes are frequently considered together, whereas “[v]indication looks to the attitude of others to the [applicant]: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the [applicant’s] reputation”: Carson at 61.

670    The level of damages should reflect the fact that the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment”: Crampton v Nugawela (1996) 41 NSWLR 176 at 195; referred to with approval in John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291 at [3].

671    Section 35(1) of the Defamation Act in effect specifies a cap for non-economic loss. The prescribed cap for the purposes of s 35 of the Defamation Act is currently $398,500: Gazette No 66, 29 June 2018, p 3970. The effect of s 35(1) of the Defamation Act is to create a cap or “cut-off” amount; it does not create a “range” or “scale”, with the amount of the cap reserved for the most serious cases of defamation: Cripps v Vakras [2014] VSC 279 at [599]-[609]; Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 at [125]-[127]; Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154.

672    Section 35(2) of the Defamation Act provides that the cap may be exceeded “if, and only if, the [C]ourt 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”. When a court is satisfied that an award of aggravated damages is appropriate, the court is entitled to make an order for damages for non-economic loss that exceeds the statutory cap in respect of both pure compensatory damages and aggravated compensatory damages; in other words, when an award of aggravated damages is warranted, the statutory cap is inapplicable: Wilson (No 2) at [249]; Pahuja v TCN Channel Nine Pty Ltd (No 3) [2018] NSWSC 893 at [26]-[28]; Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201 at [758]-[762]. However the “direction” under s 34 of the Defamation Act continues to apply and provides an “ever-present guide” even where an award of aggravated damages is appropriate and the Court should exercise its discretion to exceed the cap: Wilson (No 2) at [244].

673    Section 36 of the Defamation Act provides that in awarding damages for defamation, the Court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff”.

Mr Rush’s reputation prior to the publications

674    There was extensive and essentially unchallenged evidence of Mr Rush’s exemplary reputation prior to the relevant publications. Following is a short summary.

675    Mr Armfield has known Mr Rush since 1979. He has worked on many plays and a few films with Mr Rush. His evidence was that Mr Rush had the reputation of being an internationally important actor who “drove … for depth and for originality” and was “utterly diligent, always playful and … highly spirited”.

676    Ms Buday has known Mr Rush since 1981 and has worked alongside him in a number of theatre productions. Her evidence was that Mr Rush’s reputation in the theatre and amongst actors in Australia and overseas was “stellar”. She had heard Mr Rush being defined as “iconic”.

677    Ms Nevin met Mr Rush in 1980 and is friends with both him and Ms Menelaus. She has worked with Mr Rush on a number of theatre productions. Her evidence was that Mr Rush’s reputation amongst people in theatre, film and television who know him was as a “significant”, “celebrated” and “much loved” actor, both in Australia and internationally, who is held “in very high esteem”.

678    Ms Menalaus, herself an accomplished actor, has known Mr Rush since 1984. Her evidence was that the people with whom she has worked in the theatre, and who know Mr Rush, have a “great love and affection and admiration for him”. He had a reputation as someone who “helps enormously in a role” and was “focused and driven”.

679    Mr Trevor Smith is an actor, performer and director. He has known Mr Rush since 1970. While he has lived in the United Kingdom for many years, he still considers Mr Rush to be his best friend and they see each other nearly every year. His evidence was that Mr Rush had a reputation amongst his and Mr Rush’s peers in the theatre community which was “the highest quality of such incredible respect ... he’s a wonderful actor supreme actor, actually”.

680    Ms Robyn Kershaw is an Australian independent film and television producer and was formerly the General Manager of Belvoir Street Theatre and Head of Drama and Narrative Comedy for the Australian Broadcasting Corporation. She has known Mr Rush since 1989 and has worked with him on a number of occasions. She is a close personal friend of Mr Rush and his family. Her evidence included the following:

Now, just thinking about the people in the Australian theatre, film, television industries that you know who also know Mr Rush, prior to these articles in November and December last year, what did you understand Mr Rush’s reputation to be amongst those people?---A collaborator of extraordinary energy and with an amazing gift to give to many people, whether it’s the writer, the director, young actors on set, in the editing room after the film had been made. He actually has a – you know, quite a legendary reputation amongst my peers, and anybody who was fortunate enough to have Geoffrey’s interest in their work was actually incredibly lucky because they knew that they would get not just an actor playing this particular role. They knew that they would get this amazing collaborator because the way that Geoffrey actually works is that he infuses the story in every single cell of his DNA, and he intuitively then manages exactly how all of it needs to actually flow out. He has an exceptional understanding of actor-audience relationships. He – I – I experienced that personally working at Belvoir with him, and that has flowed on, to his film and TV work.

And prior to these articles at the end of last year, what was Mr Rush’s reputation amongst the people in film and television and theatre in LA?---As a man with a – a legendary reputation, a man who actually had achieved what so many actors dream accolades that were beyond just what was recognised in LA but all over the world, festival invitations all over the world, a body of work that actually is huge in terms of genre….

681    Ms Margaret O’Bryan is a university academic who has known Mr Rush since the early 2000s. She and her family have developed a close friendship with Mr Rush and his family as their sons went to the same school. They have common friends and acquaintances. Her evidence was that Mr Rush’s reputation in the community in which they mixed was as a “good man” who was “absolutely committed to being the best father that he could be”. He was a man of “gravitas and grace in equal proportion”.

682    Mr Simon Phillips is a well-known Australian theatre director. He met Mr Rush in 1988 when he was Associate Director of the MTC and cast Mr Rush in a role. He has worked with Mr Rush on a number of occasions since that time and became friends with him. He knew people in the theatre community in Australia who also knew Mr Rush. His evidence was that Mr Rush was a “hugely admired and respected actor inside the profession” and that “his integrity as an actor would never have been in question … under any circumstances”.

683    Mr John Gaden AO is an actor and director who has worked for most of the major theatre companies in Australia and appeared in countless plays since 1966. He has known Mr Rush since 1982 and either acted with him, or directed him, in many plays. He gave the following evidence about Mr Rush’s reputation amongst people in the theatre who both he and Mr Rush know:

- - - what was Mr Rush’s reputation?---Extraordinarily high. Geoffrey – when Geoffrey is in a rehearsal room or on stage you see a man in his element. He – he brings such joy, such creativity, such meticulous attention to detail, such lightheartedness, and such focus into the rehearsal room. And he is absolutely renowned for that. A consummate theatre and film actor.

684    Ms Judith Davis is a celebrated Australian actor who has appeared in many films and plays. She has known Mr Rush for many years, having worked with him on a film in the early 1980s. Her evidence was that Mr Rush had a “very fine reputation” amongst people in the film, television and theatre industry and that he had a “tremendous record of achievement”.

685    Mr Fred Schepisi AO is a film director, producer and screenwriter who has won many awards over his lengthy career. He has known Mr Rush socially and professionally for about 14 years and knows many people who know Mr Rush. His evidence was that Mr Rush’s reputation in the circles in which he moved was as someone who was “extremely professional” and “extremely dedicated to the work that he does”. He was known overseas for his professionalism, his talent and his “collaboration skills”.

686    Mr Fred Specktor has been a talent agent in Los Angeles for about 60 years and has represented Mr Rush for over 20 years. His evidence was that Mr Rush’s reputation amongst people who they both know and work with in the United States was “perfect” and that he had “never had any complaint of any kind about his professionalism in any manner whatsoever”.

687    Despite the extensive evidence concerning Mr Rush’s reputation in the theatre, film and television industries, as well as generally, Nationwide and Mr Moran submitted that there was very little evidence as to Mr Rush’s reputation in the “relevant sector”, which was said to be “his reputation for propriety with female actors”.

688    That submission is rejected.

689    It may readily be accepted that, when evidence of good or bad character is given in a defamation action, it should be directed at that sector of the applicant’s character which is relevant to the alleged defamatory imputations: Plato Films Ltd v Speidel [1961] AC 1090 at 1102, 1131, 1140. The example given by Denning LJ in Speidel to illustrate that principle was that “if the libel imputes theft, the relevant sector is [the plaintiff’s] character for honesty, not his character as a motorist”.

690    This principle must, however, be approached with a modicum of common sense. Questions of degree are involved. While Lord Denning’s example is clear enough, it is not always possible to divide a person’s life into neatly defined “sectors”. Nor should a narrow or pedantic approach be taken to defining the sector of a person’s life which was likely to be affected by the defamatory imputations.

691    It may readily be accepted here that, speaking entirely hypothetically, evidence relating to Mr Rush’s reputation as a cook or gardener or golfer would not only have been inadmissible, but also completely unhelpful. I doubt, however, that it is accurate or appropriate to define the sector of Mr Rush’s character which is relevant to the defamatory imputations in terms as narrow as his reputation for propriety with female actors. I consider that the relevant sector of Mr Rush’s character, having regard to the nature of the defamatory imputations, is his reputation for how he conducts himself as an actor; his integrity and probity as an actor. While many of the imputations focus on behaviour of a sexual nature, there are some imputations which are broader than that. They include imputations that Mr Rush engaged in “scandalously inappropriate behaviour in the theatre” and had “engaged in inappropriate behaviour against another person” while working on the production of King Lear. Mr Rush’s reputation for honesty and integrity generally is also an issue raised by the defamatory publications because one of the imputations is that he lied about whether the STC had told him the identity of the complainant.

692    I accept that some of the character or reputation evidence drifted into a consideration of Mr Rush’s skills as an actor. It is, however, rather artificial to think that there is necessarily some clear dividing line between an actor’s skills and their probity and integrity as an actor. In any event, I give little weight to the reputational evidence insofar is it related solely to Mr Rush’s acting skills.

693    The overall effect of the evidence in relation to Mr Rush’s reputation for integrity and probity as an actor was that his reputation in that regard was untarnished. He was “hugely admired and respected” and “his integrity as an actor would never have been in question”. He had been described as, amongst other things, “the consummate professional” and as having been “held in very high esteem” in the theatre, movie and television circles. That evidence went unchallenged. Even if the relevant sector of Mr Rush’s reputation was as narrow as Nationwide and Mr Moran would have it, it is impossible to see how that evidence could have been given if Mr Rush’s reputation for propriety with female actors was at all tarnished. An actor who behaved inappropriately towards female actors would not be hugely admired and respected.

694    In any event, Nationwide and Mr Moran made no attempt to prove that Mr Rush’s reputation in the sector which they considered relevant was in any sense tarnished.

Publication and republication

695    The poster and two Telegraph articles were widely distributed and published.

696    There was no dispute that 4,242 copies of the poster were distributed in New South Wales and the Australian Capital Territory. It may be inferred that they were displayed outside newsagencies and other outlets and were likely to have been seen by many people.

697    The sales, or estimated sales, of the 30 November 2017 edition of the Telegraph was 190,400 (178,595 in New South Wales; 52 in Victoria; 4,681 in Queensland and 7,072 in the Australian Capital Territory; 0 in South Australia, Tasmania, Western Australia and the Northern Territory). The readership, or estimated readership of the 30 November 2017 edition of the Telegraph was 933,000 (909,000 in New South Wales; 24,000 in the Australian Capital Territory; details for Victoria and Queensland not known; 0 in Tasmania, Western Australia, South Australia and the Northern Territory). The “hits” or estimated “hits” received by the digital versions of the 30 November 2017 articles on the Telegraph website was 8,706. The vast majority of those hits originated from Australia.

698    The 30 November 2017 articles concerning Mr Rush were published in other newspapers with the implied authority of Nationwide. Those newspapers were the Advertiser, the Courier Mail and the Gold Coast Bulletin. The approximate readership of those newspapers was 984,000. There were also a small number of hits on the relevant articles on the websites associated with those newspapers.

699    The estimated sales of the 1 December 2017 edition of the Telegraph was 205,308 (192,344 in New South Wales; 78 in Victoria; 5,420 in Queensland and 7,466 in the Australian Capital Territory; 0 in South Australia, Tasmania, Western Australia and the Northern Territory). The estimated readership of the 1 December 2017 edition of the Telegraph was 933,000 (909,000 in New South Wales; 24,000 in the Australian Capital Territory; details for Victoria and Queensland not known; 0 in South Australia, Tasmania, Western Australia, South Australia and the Northern Territory). The “hits” or estimated “hits” received by the digital versions of the 1 December 2017 articles on the Telegraph website was 15,606. The vast majority of those hits originated from Australia.

700    The 1 December 2017 articles concerning Mr Rush were published in the Advertiser, the Courier Mail and the Gold Coast Bulletin. The approximate readership, of those newspapers was 984,000. There were also a small number of hits on the article on the websites associated with those newspapers.

701    There was evidence that some of the content of the 30 November and 1 December 2017 Telegraph articles was picked-up and published by different media organisations on various platforms throughout the world. The republication of the substance of the articles was undoubtably the natural and probable result of the initial publications: Speight v Gosnay (1891) 60 LJQB 231 at 232; Sims v Wran [1984] 1 NSWLR 317 at 320. That was so particularly given Mr Rush’s standing and status as an actor, the nature of the then emerging #MeToo movement and the sensational nature of the articles. Mr Schepisi’s evidence about the relevant articles was that “[y]ou would have [sic] to be dead not to have come across that”. Even Ms Davis, who said that she did not like gossiping and did not mix in theatrical circles, heard people talking about the articles. She recalled that those people said “his [Mr Rush’s] career is finished”.

Hurt and distress

702    There could be little doubt that Mr Rush was hurt and distressed by the relevant publications. Indeed, the overall impression given by the evidence adduced in relation to this issue was that he was devastated by them.

703    Mr Rush’s evidence was that the effect on him when he saw and read the 30 November 2017 articles was “devastating”. He “felt as if someone had poured lead into [his] head”. He was “numb”. The image of him on the front page had a particular impact. He felt that the use of the image in that context “polluted” or “dirtied” the original intention of the image. The headline “King Leer” made him feel “sick to [his] stomach”. When he read the articles he was “distressed” and felt that he was in a “diabolical and vulnerable position”.

704    His reaction was perhaps even more extreme when he saw the articles in the 1 December 2017 edition of the Telegraph. He described how his “blood kind of ran cold” and he “went to jelly”. He was “distraught by the way the story was running off the rails” and “couldn’t quite understand … why the younger members of the cast were ganging up”. He felt that he was being “demonised by untruths”. He went into an “emotional spiral” and described how the articles were the start of the worst 11 months in his life. That 11 months was the period between the publication and the trial.

705    During the 11 months after the publication, Mr Rush’s evidence was that he and Ms Menelaus had “barely left the house” and that, apart from some brief respites, they led a “hermit-like existence”. He felt “trapped”. Mr Rush was cross-examined extensively about this aspect of his evidence. The thrust of that cross-examination was that during the relevant 11 month period Mr Rush had travelled to the Adelaide Festival for four days, had attended an awards ceremony in the United States and had travelled, with Ms Menelaus, to Umbria and then London for a short period. The suggestion was that those trips were inconsistent with his evidence of being housebound. He was questioned in minute detail about his movements during those trips.

706    Mr Rush’s evidence was that going to the Adelaide Festival with his son was a “tonic” to break the hermit-like existence he had been leading. He went to the awards ceremony in the United States under pressure from his agent because it was suggested to him that if he did not, it would be seen as an admission of guilt. As for Umbria, Mr Rush’s evidence was that this was an attempt to escape and find solace. It was a trip taken shortly after the death of Ms Menelaus’ mother.

707    I accept Mr Rush’s evidence about those trips. I reject the contention that they were inconsistent with Mr Rush’s evidence that he otherwise led a reclusive or hermit-like existence in Australia by reason of the publications. As will be seen, Mr Rush’s evidence about the reclusive existence he led after the publications was corroborated by a number of other witnesses.

708    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. He presented as a man who, somewhat curiously given his craft, was not always entirely comfortable or forthcoming when speaking publicly about his own emotions. The devastating effect of the articles on him was nevertheless obvious.

709    Other witnesses also spoke of the devastating effect that the publications have had on Mr Rush.

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.

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 “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.

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.

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”.

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.

716    Before considering and assessing the appropriate award of compensatory damages, it is necessary to consider Mr Rush’s claim for aggravated damages.

Aggravated damages

717    Mr Rush particularised 23 “matters” which he contends would justify an award of aggravated damages. Those 23 matters are as follows:

1.    The respondents’ failure to apologise for publication of the matters complained of. This was improper in relation to imputation 10(g) because the respondents intended to convey that imputation to their readers but have never pleaded truth to it.

2.    The respondents’ failure to withdraw the truth defence to imputation 10(f) and apologise for pleading truth to that imputation. That was improper, at least since the respondents’ decision not to call McIntyre at which time they must have known there would be no evidence capable of supporting it. The fact that the respondents continue to maintain this plea is also improper when it is wholly unsupported by evidence.

3.    The unfair, sensational and extravagant method of publication evidenced, in particular, by the headlines which cannot be justified by any information in the possession of the respondents. Examples are “Scandal Claims”, “King Leer”, “Bard Behaviour”, “World Exclusive”.

4.    The improper motives of the respondents, including, specifically, the second respondent. The motive was to boost sales and increase circulation by sensational articles concerning the #Metoo movement. This is evidenced by Ex A-38 and the juxtaposition of the article concerning Don Burke in the second matter complained of.

5.    The dishonesty of the first respondent in relation to the first matter complained of. It knew that the STC had not confirmed inappropriate behaviour. The assertion that it had done so was a calculated falsehood to boost sales.

6.    The calculated cruelty of the respondents in publishing the second matter complained of knowing that the STC had requested it not to, that Ms Norvill did not wish it to and Mr Rush had, through his solicitors, denied the allegations.

7.    The publication of the contents of Mr Pullen’s letter when it had been marked “Not for Publication”.

8.    The publication of the second matter complained of and its serious allegations of impropriety without having confirmed any detail with Ms Norvill. That was reckless and improper. Ex A-39, A-40 and A41.

  9.    Exhibit A-5. Mr Moran’s email:

(a)    He only approached the applicant, indirectly through his agent, at 5.06pm the night before the publication of the first and second matters complained of.

(b)    He said the story was “running in tomorrow’s” paper (ie it was going to be published regardless of what the applicant said).

(c)    He wrote to the applicant, in relation to what he described as “an alleged incident of abuse”, stating that the investigation was part of a broader investigation in the wake of the Don Burke and Harvey Weinstein scandals.

(d)    He did not suggest to the applicant that he was going to refer to the applicant as “King Leer”, or misappropriate the photograph of the applicant from King Lear, or that he was going to allege the applicant had engaged in “Bard behaviour”.

(e)    He did not send the applicant the text of the first and second matters complained of.

10.    The dishonesty of the respondents in relation to the third matter complained of, as follows:

(a)    Brandon McClelland. The respondents knew, because Mr McClelland had told them (Ex A-45), that he knew nothing about events during King Lear but presented his words as if he did and as if he confirmed the complainant’s story from his personal knowledge; (see also heading to A-44).

(b)    The respondents redacted Mr McClelland’s tweet and Facebook post (A42 and A43) to give a false impression of his views.

(c)    The respondents presented Mr Wyatt’s Facebook post as if it was in support of Ms Norvill whereas it was plainly generic. They also did so without speaking to Mr Wyatt.

(d)    The respondents deliberately omitted the words set out in the third paragraph of Ex A-46 “The STC has at all times been clear that this was an allegation made to (not by) STC and not a conclusion of impropriety”. That was done so as to give a deliberately false impression of the STC’s position.

(e)    The respondents fabricated the assertion that the STC would not work with the applicant again. There is no evidence to support the proposition that such a decision had been made and it is contradicted by the last paragraph of A-46.

(f)    The dishonesty in these words, “Despite denials, Rush was told who made the claims in a phone call with executive director Patrick McIntyre weeks ago”. The respondents knew this was false from Ex A-48 which directly informed Moran that the applicant had not been told. The omission of the content of this email from the third matter complained of was also dishonest.

11.    Publication of the applicant’s solicitors’ letter in the third matter complained of despite the notation “Not for Publication”.

12.    Failure to seek comment from the applicant in respect of the third matter complained of until 6.20pm on 30 November 2017.

13.    The content of Ex A-50. By asking the question whether he would like to “say sorry to the victim”, the second respondent asserted that the applicant was actually guilty. That was improper behaviour. The second respondent had no basis for such an assertion. It was also an insult.

14.    The respondents improperly cast around for material having nothing to do with the allegations in the matter complained of in an attempt to smear and traduce the applicant (Ex A-53).

15.    The manner in which the first respondent reported the course of the proceedings – Ex A-54. This further added to the damage to the applicant’s reputation and was improper because it was a biased attempt to smear the applicant and punish him for suing the respondents.

16.    The respondents’ Defence of 1 February 2018. The respondents alleged at paragraphs 22 and 23, that during an after-party for the production on 9 January 2016, the applicant entered the female bathroom and stood outside a cubicle which was occupied by the complainant. The same allegation was raised in the respondents’ Amended Defence of 20 February 2018 at paragraphs 23 and 23A.

  17.    Those allegations were widely reported including by The Daily Telegraph.

18.    The respondents have made public comments that the matters complained of were accurate and reasonable.

  19.    The respondents’ conduct of the litigation, including:

(a)    The filing of plainly inadequate Defences in February 2018 – including particulars which are no longer pursued;

(b)    The Interlocutory Applications of April 2018, seeking to file a Further Amended Defence and seeking to file a Cross-Claim against the STC;

(c)    The application for leave to appeal, on a discretionary issue of practice and procedure, in relation to particulars which would never have made any difference to the ultimate outcome of the proceedings;

(d)    The late abandonment of the defence of statutory qualified privilege, when it suited the respondents to do so in order to resurrect the previously struck out defence of justification;

(e)    Refusing to admit any of the matters subject to the applicant’s Notices to Admit: Tabs 19, 20, 28, 29, 31, 33, 34.

20.    Publication of material on 30 October 2018 in breach of the Court’s suppression order.

21.    The respondents’ cross-examination of the applicant, including suggesting he was not virtually housebound following the matters complained of and questioning the applicant’s evidence that he had led “a hermit existence”.

  22.    The falsity of the imputations.

23.    By reason of these matters it will be inferred that the respondents were actuated by express malice in publication of the matters complained of and in the conduct of the litigation which increased the hurt and harm to the applicant.

718    Paragraph 20 of these particulars was subsequently withdrawn.

719    Regrettably the parties’ submissions in relation to the issue of aggravated damages were truncated and ultimately not particularly helpful.

720    I do not propose to deal with each of the 23 particulars separately or individually. I will, instead, group them together and deal with some in a compendious fashion. Before doing so, it is helpful to set out some of the general principles in relation to aggravated damages.

General principles in relation to aggravated damages

721    Aggravated damages are a form of compensatory damages; they are not awarded to punish a respondent: Hockey at [446(f)].

722    Aggravated damages may be awarded where there is a lack of bona fides in the respondent’s conduct, or where the conduct is improper or unjustifiable: Triggell v Pheeney (1951) 82 CLR 497 at 514. Conduct with those characteristics may be taken to increase or aggravate the harm the defamation caused or may reasonably be supposed to have caused: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653B; Hockey at [446(g)]. Where conduct of a respondent which is improper, unjustifiable or lacking in bona fides is established, an increase to the applicant’s sense of hurt may be presumed from all the evidence: Wagner at [743]. It is not necessary for the applicant to give evidence that the aggravating behaviour of the respondent “augmented his [or her] sense of hurt”: Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 250; Flegg v Hallett [2015] QSC 167 at [232], [237].

723    Circumstances of aggravation can be found in the respondent’s conduct from the commission of the tort up until the day of judgment: Broome v Cassell & Co Ltd [1972] AC 1027 at 1071; [1972] 1 All ER 801: Wilson v Bauer Media Pty Ltd [2017] VSC 521 (statement of principle not disturbed on appeal in Wilson (No 2)).

724    The failure to publish a retraction or an apology may make an award of aggravated damages appropriate if it amounts to a continuing assertion of the defamatory imputations: Carson at 78; Hockey at [446(h)]; Wilson at [87]; Wagner at [744].

725    Aggravated damages may be appropriate where the defamatory matter is published in an extravagant, excessive or sensationalist manner: Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 79; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [34].

726    The respondent’s aggravating conduct may be found in the circumstances of publication where the respondent increased the harm suffered by the applicant by recklessly inflicting damage on the applicant’s reputation, or failing to investigate the defamatory allegations before publishing them: Andrews at 243-4; Wilson at [86].

727    The conduct of the litigation can in some circumstances justify aggravated damages, however mere persistence, even vigorous persistence, in a bona fide defence, in the absence of improper or unjustifiable conduct, cannot be used to aggravate compensatory damages: Coyne v Citizen Finance Limited (1990 – 1991) 172 CLR 211 at 237 (Toohey J, with whom Dawson and McHugh JJ agreed). The conduct of the respondent’s counsel can provide a basis for aggravated damages, including where counsel puts to the applicant that he or she was lying to the court, or assertions were put to the applicant in cross-examination which were without support, or were gratuitous or calculated to insult: Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194; Haertsch v TCN Channel Nine Pty Ltd [2010] NSWSC 182 at [53].

The nature of the 30 November 2017 articles

728    Mr Rush contended that the defamatory imputations conveyed by the first and second matters complained of, the poster and the articles published by the Telegraph on 30 November 2017, were published in an extravagant, excessive and sensationalist manner (particular 2; see also particulars 4, 5, 6, 8).

729    I agree.

730    The nature and content of the 30 November 2017 articles was described in detail earlier in these reasons. The most striking feature of those articles is that, despite what appears to have been the relative paucity of actual objective information available to Nationwide and Mr Moran, the articles occupied almost the entire first page and a double page spread on pages four and five. The front page is particularly sensational and unfair. It deployed a head and shoulders photograph of Mr Rush taken for the purposes of promoting King Lear. He is made up as the “deranged” Lear, complete with stark white make-up and a garland of flowers or weeds. His expression is one of concern, anguish or bewilderment.

731    The photograph is a striking image. It occupies almost the entire front page, along with the very large headline: “KING LEER”. That pun clearly conveyed, and it may be inferred was clearly intended to convey, that Mr Rush had been involved in some sort of sexually inappropriate behaviour. It was, and it may readily be inferred was intended to be, a direct and full-frontal attack on Mr Rush’s reputation. That is so particularly given that this publication occurred in the midst of the emerging #MeToo movement.

732    It is difficult to see how the front page image could possibly be considered to be justifiable in light of the relative paucity of the information apparent from the content of the articles. It may readily be inferred from the content of the articles and from Mr Moran’s email to Ms Churchill-Brown on the eve of the publication that Mr Moran had little information beyond the STC’s confirmation that it had received a complaint that Mr Rush had engaged in inappropriate behaviour, and Mr Rush’s statement, through his solicitor, that he had never engaged in inappropriate behaviour and that the STC had not even told him about the complaint or provided him with any details about it. Yet the photograph and the headline clearly and spectacularly conveyed that Mr Rush was effectively guilty of that inappropriate behaviour and that it was sexual in nature. I need only repeat here what I said earlier in that part of these reasons which deals with the question whether the alleged imputations were conveyed. The vice in the image and headline on the front page is that it effectively poisoned the reader’s mind from the outset.

733    It should be noted, in this context, that Nationwide and Mr Moran did not ultimately seek to invoke the defence of qualified privilege in s 30 of the Defamation Act. Nor did Mr Moran, or anyone else from Nationwide who was involved in the relevant publications, give evidence.

734    The unjustifiable nature of the first matter complained of does not end with the front page. The double page spread on pages four and five was equally excessive and sensationalist. The pun in the prominent headline “STAR’S BARD BEHAVIOUR” again conveyed, and it may be inferred was intended to convey, guilt. Perhaps more significantly, the juxtaposition of the article about Don Burke, and its inclusion within the same “box” as the articles concerning Mr Rush, clearly linked, and it may be inferred was intended to link, the allegations against Mr Rush to the Don Burke story and the broader Harvey Weinstein scandal. That inference is bolstered by Mr Moran’s email to Ms Churchill-Brown, which asserted that “[t]his is part of a broader investigation into a number of high profile people in the entertainment industry in the wake of the Don Burke scandal, and previously the Harvey Weinstein allegations”.

735    Mr Rush submitted that it should be inferred that the motive of Nationwide and Mr Moran was to boost sales and increase circulation by way of sensationalist articles concerning the #MeToo movement.

736    I agree. That inference is supported not only by Mr Moran’s email and the positioning of the article about Don Burke, but also by the extraordinarily sensationalist, excessive and unfair nature of the publication itself.

737    Finally, I accept Mr Rush’s contention that the conduct of Nationwide and Mr Moran 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 and had failed to make adequate inquiries before publication. It is open to infer that the information which Mr Moran had available to him as at 30 November 2017 comprised little more than the STC’s confirmation that it had received a complaint of inappropriate behaviour by Mr Rush. He may also have had a confidential source at the STC who had advised him of the identity of the complainant. What is significant, however, is that it is readily apparent that Mr Moran had not spoken to Ms Norvill and had not confirmed the details of the complaint with her. Indeed, it is readily apparent that Mr Moran knew that Ms Norvill did not want her identity revealed and had told the STC that she did not want to take the complaint any further. It may also be readily inferred that Mr Moran well-knew that the STC had not confirmed that the inappropriate behaviour had occurred. It had only confirmed that a complaint had been made.

738    In those circumstances, it was manifestly reckless to convey the defamatory imputations that were conveyed by the 30 November 2017 publications, particularly in the sensational and extravagant manner in which they were published. For the reasons detailed earlier, there could be little doubt that the front page of the publication that day clearly conveyed that Mr Rush was in effect guilty of the alleged inappropriate behaviour. Indeed, it conveyed that Mr Rush was a pervert. It may also be inferred that it was calculated to convey those very imputations, or at the very least that Mr Moran and Nationwide were reckless in that regard. They must also have known the damage that the publication of the 30 November 2017 articles, and the front page in particular, would inflict on Mr Rush’s reputation.

739    This was, in all the circumstances, a recklessly irresponsible piece of journalism. It is difficult to avoid the conclusion that it was calculated to damage. Nationwide and Mr Moran’s conduct in publishing the 30 November 2017 articles was in all the circumstances both improper and unjustifiable.

740    There could be little doubt that it is open to infer from the whole of the evidence that Mr Rush’s hurt and injury was substantially increased by the extravagant and sensationalist nature of the second matter complained of. Indeed, that inference is inescapable. At the very least, the improper and unjustified features of the articles may be supposed to have caused an aggravation of the harm suffered by Mr Rush: Fitzpatrick at 653; Hockey at [447(g)]; Wagner at [743].

741    In any event, the evidence of Mr Rush and Ms Menelaus clearly established that to be the case. As noted earlier in the context of the evidence concerning hurt feelings generally, the evidence of both Mr Rush and Ms Menelaus was that Mr Rush was particularly hurt by the misappropriation and pollution of the promotional photograph of him made up as King Lear. Ms Menelaus’ evidence was that when Mr Rush saw the photograph he said “[i]t’s just unbelievably worse than you can imagine”. He also said that he found the “branding font of ‘King Leer’ was very upsetting”. His evidence was that the headline made him feel “sick to [his] stomach”.

742    In all the circumstances, the improper and unjustified conduct of Nationwide and Mr Moran in publishing the 30 November 2017 articles caused, or may be supposed to have caused, an aggravation of the harm suffered by Mr Rush suffered. As such it warrants an award of aggravated damages.

The nature of the 1 December 2017 articles

743    Mr Rush contended that there were some features of the 1 December 2017 articles which, when considered alongside the information available to Nationwide and Mr Moran at the time of publication, supported an inference of dishonesty on their part (particular 10). Those features are identified in particular 10 of Mr Rush’s particulars of aggravated damages.

744    I would perhaps not go so far as to infer dishonesty. Nor is that necessary. I would, however, find that the features highlighted by Mr Rush support an inference that the conduct of Nationwide and Mr Moran in relation to the 1 December 2017 articles lacked bona fides and was in any event improper and unjustifiable. I would also find that those features of the articles increased or aggravated Mr Rush’s hurt, or at the very least may reasonably be taken to have done so.

745    As was discussed in detail earlier in the context of the imputations conveyed by the 1 December 2017 articles, the overwhelming tenor of those articles was that, despite Mr Rush’s denial, the complainant’s accusations had been backed by the “theatre cast” and STC “executives”. The prominent front page headline was “WE’RE WITH YOU” and “Theatre cast back accuser as Rush denies ‘touching’”. A prominent photo of Mr Wyatt appeared alongside a statement attributed to him: “I was in the show. I believe (her)”. Mr McClelland was reported to have similarly “urged others on Twitter to believe the actress” because “[i]t [the allegation] wasn’t a misunderstanding” and “wasn’t a joke”. The impression clearly conveyed was that these two actors knew the details of the allegation and had effectively confirmed that the alleged inappropriate touching had occurred.

746    That was a false impression and it may readily be inferred that Mr Moran knew it.

747    Mr McClelland’s tweet was:

Believe the women. This wasn’t just once. It wasn’t a misunderstanding. It wasn’t a joke.

748    Mr McClelland’s reference to “women” (plural) suggests that his tweet was not directly related to the complaint concerning Mr Rush’s behaviour in King Lear. There was only one complainant in relation to the King Lear allegations. It is also readily apparent that Mr Moran knew that Mr McClelland was not even involved in the production of King Lear. In any event, Mr Moran soon discovered that Mr McClelland’s tweet did not specifically relate to the King Lear allegations.

749    On 30 November 2017 at 2.37 pm, Mr Moran sent a Facebook message to Mr McClelland in which he said:

hey mate, apologies for reaching out direct but not sure how else to get in touch. I wrote the Geoffrey Rush story today and am being slammed. I am trying to push forward regardless and saw your tweet. Would you talk to me off the record on background?

750    Mr McClelland replied:

My tweet was not directly related to any particular individual and I am not able to comment on the complaint filed at STC as I do not have intimate or first hand knowledge regarding that production. I’m sorry.

751    It is true that Mr McClelland’s reply to Mr Moran’s email is undated. I am nevertheless prepared to infer, in all the circumstances, and having regard in particular to the terms of Mr McClelland’s reply, that the reply was sent promptly and most likely some time later in the day on 30 November 2017. In any event, it is tolerably clear from the terms of Mr McClelland’s tweet, together with the fact that Mr McClelland was not himself involved in King Lear, which Mr Moran clearly knew, that Mr McClelland did not have firsthand knowledge of the nature of the King Lear complaint.

752    The article reproduced only part of Mr McClelland’s tweet. It omitted the reference to “[b]elieve the women”. In any event, the reference to Mr McClelland’s tweet in the article, read in context, gave the false impression that his tweet was somehow specifically related to the allegations which had been made against Mr Rush, and that Mr McClelland had some knowledge relating to the production. The article specifically stated that Mr McClelland had urged others to “believe the actress”.

753    It is readily apparent from Mr Moran’s Facebook message that he was desperate to find some support for, or otherwise back up the story he had written the previous day. His or Nationwide’s apparent decision to create a misleading impression of Mr McClelland’s tweet must be considered in that context. Even though Mr Moran appears to have been criticised in respect of the 30 November 2017 articles, he was determined to “push forward regardless”.

754    As for Mr Wyatt’s Facebook post, it too was clearly generic. In it, he stated:

I was in the show. I believe whoever 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!!! It’s been going on for far too long! And this culture of protecting people in power has to stop.

755    On the front page, Mr Wyatt’s post is reproduced, in prominent terms, as being:

I was in the show. I believe (her).

756    As for the STC, on the afternoon of 30 November 2017, Mr Moran was copied into an email which included an updated statement from the STC. That statement concluded with the following words:

STC has at all times been clear that this was an allegation made to (not by) STC and not a conclusion of impropriety.

757    Mr Moran did not include those words in his story the following day. It may be inferred that that was a conscious decision. In any event, the omission of that part of the STC’s statement conveyed a false impression of the position that had been taken by the STC, particularly having regard to the tenor of the article as a whole.

758    Finally, the 1 December 2017 articles included the statement: “[d]espite denials, Rush was told who made the claims in a phone call with the executive director Patrick McIntyre weeks ago”. It may be inferred that Mr Moran well knew that statement was false, or at least was reckless in that regard. The afternoon before the publication, Mr Moran had received an email from Ms Stevenson of the STC which stated:

A senior member of the STC management team spoke to Geoffrey Rush on or around the 9 or 10 of November. This person did not pass on any specific information regarding the nature of the complaint to Mr Rush as they were maintaining the confidentiality of the complainant, however Mr Rush was aware that a complaint had been made.

(Emphasis added)

759    Nationwide and Mr Moran have never sought to prove the truth of the imputation, found to have been conveyed by the 1 December 2017 articles, that Mr Rush had falsely denied that the STC had told him the identity of the person who had made a complaint against him.

760    The publication of the 1 December 2017 articles was again a piece of recklessly irresponsible journalism in all the circumstances. Nationwide and Mr Moran’s intentions were clear. Having been criticised for the previous day’s publications, they set about “bootstrapping” the story to include misleading statements of support for the complainant’s allegations.

761    In all the circumstances, those features of the 1 December 2017 articles and Nationwide and Mr Moran’s conduct in relation to them support a finding that they have acted in a way that was not bona fide, or was otherwise improper or unjustified.

762    Those features of the 1 December 2017 articles may also reasonably be supposed to have caused an increase or aggravation of the harm and hurt suffered by Mr Rush. In any event, that was the clear effect of the evidence of Mr Rush and Ms Menelaus. Ms Menalaus’ evidence concerning Mr Rush’s reaction to the 1 December 2017 articles was:

Were you with him when he saw that?---Yes. Yes.

And do you remember his reaction to that one?---Well, this is the one that made him cross because – for two reasons: (1) one boy wasn’t in the play at all and the other thing that upset him was that, if these people were saying that they had heard about the story, why hadn’t Geoffrey heard about it? Who had been telling these boys about this story? That’s what he couldn’t understand – and without having ever the chance to actually say himself that nothing happened. There was nothing.

763    Mr Rush’s evidence was that when he saw the 1 December 2017 articles his “blood ran cold” and he felt “demonised by untruths”. He was also plainly baffled by the references to Mr Wyatt and Mr McClelland. His evidence was that he knew Mr Wyatt and liked him, but noted that Lear and Edmund, played by him and Mr Wyatt respectively, “have absolutely next to zero contact in the play”. As for “we’re with you” and the reference to Mr McClelland, Mr Rush’s reaction was “[w]ho the fuck is Brendon McClelland” and “why is he banging on as part of the theatre cast?” There could be little doubt that Mr Rush’s hurt was exacerbated by the references to these two actors.

764    When shown Mr McClelland’s text to Mr Moran about Mr McClelland’s tweet and asked about the treatment of Mr McClelland in the 1 December 2017 articles, Mr Rush said that the treatment of Mr McClelland “seemed to serve their [Nationwide and Mr Moran’s] purpose, to be able to feel as though there was a movement growing within the Lear company that was confirming the publications on 30 November”. It is almost self-evident that it would have been upsetting for Mr Rush to see such a motive.

The course of the proceedings and the reporting thereof

765    I should make it plain at the outset that I do not consider that the conduct of senior counsel for Nationwide and Mr Moran at the trial was lacking in bona fides, or was otherwise improper or unjustifiable. In particular, I reject the contention (particular 21) that the cross-examination of Mr Rush was somehow improper or unjustified. The cross-examination was, perhaps understandably, lengthy and at times stern and vigorous, but it was not disrespectful or unnecessarily aggressive. Forceful advocacy, within appropriate limits, is not a matter of aggravation: Tingle at [26]. Perhaps more significantly, it was open, in all the circumstances, to test Mr Rush’s evidence that he was housebound and had led a hermit existence.

766    The conduct of the trial, however, stands in stark contrast to Nationwide and Mr Moran’s conduct of the proceedings as a whole (particulars 15, 16, 17, 19). Nationwide and Mr Moran’s conduct of the proceedings prior to the trial has been described at length in some of my earlier decisions: Rush v Nationwide News Pty Ltd [2018] FCA 357 (Rush (No 1)); Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; Rush v Nationwide News Pty Ltd (No 4) [2018] FCA 1558. In the last of those cases I described the conduct of the litigation by Nationwide and Mr Moran up to that point as undeniably unsatisfactory”. I remain of that view. I do not propose to repeat the background and chronology of events relating to the proceedings. The relevant chronology is set out at length in my earlier judgments and should be taken to be incorporated in this judgment. There is only one particular issue that I wish to focus on in the present context.

767    Nationwide and Mr Moran’s first amended defence to Mr Rush’s claim pleaded a truth defence. The particulars of the truth defence included a particular which alleged that Mr Rush touched the complainant in a manner that made her feel uncomfortable. That touch was said to have occurred during the final scene in one of the performances of the play when Mr Rush, as King Lear, walked onto the stage carrying Ms Norvill as she simulated the lifeless body of Cordelia. The touch was alleged to have been not directed or scripted or by any person necessary for the purpose of the performance of the Production. While the particulars were vague, the suggestion appeared to be that Mr Rush inappropriately touched Ms Norvill as he was carrying her. It was also alleged that after the performance, the complainant said to Mr Rush words to the effect “stop doing it”. The defence also included an allegation that at the after party on 9 January 2016, Mr Rush followed the complainant into the female bathroom and stood outside the cubicle occupied by the complainant until she told him to “fuck off”, at which point he left.

768    On 20 February 2018, the day after a temporary suppression or non-publication order in relation to the amended defence was lifted, the Telegraph featured a front page story which contained details of the defence. The front page contained a large photograph of Mr Rush and Ms Norvill during rehearsals of King Lear and the large headline “STOP DOING IT”. A smaller, though still prominent, headline stated: “Court hears allegations Rush touched actor five times & confronted her in female toilets”. While the headline and accompanying article suggested that the Court had “heard” those allegations, in fact they were simply lifted from the amended defence.

769    The rest, of course, is history. In Rush (No 1), Nationwide and Mr Moran’s then pleaded truth defence was struck out. It was found, amongst other things, that the particulars of truth were defective and deficient in a number of respects. The specific allegations in the amended defence referred to earlier have never resurfaced. While some considerable time later Nationwide and Mr Moran were granted leave to file a further amended defence including particulars of a new truth defence, the allegations that Mr Rush had touched Ms Norvill as he carried her on stage, that Ms Norvill told Mr Rush to “stop doing it” after that occurred, and that Mr Rush followed Ms Norvill into the female toilets at the after party were not included in the further amended defence. It is now abundantly clear from the evidence given by Ms Norvill in this proceeding that they never occurred.

770    Nationwide and Mr Moran have never sought to explain exactly how they came to include these allegations in their initial truth defence. Nor has Nationwide ever apologised to Mr Rush for trumpeting those false allegations on the front page of the Telegraph on 20 February 2018. Mr Rush had no real recourse against Nationwide in relation to that publication because it was likely to be considered to be a fair report of proceedings of public concern within s 29 of the Defamation Act.

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.

774    In relation to the publication on 20 February 2018, Nationwide and Mr Moran relied on what was said by McClellan CJ at CL in Habib v Nationwide News Pty Ltd (2010) 78 NSWLR 619 at [38]-[41] about the admissibility of subsequent articles in relation to the assessment of damages in defamation proceedings. Habib, however, was a fundamentally different case to this case. The plaintiff in that case did not allege that the subsequent article was improper. Nor was the subsequent article put forward as a reason why an award of aggravated damages was appropriate. The relevant ratio of the case was that “[i]n the absence of any impropriety the fact that publicity is given to findings which are ultimately overturned cannot be reflected in the damages”: Habib at [41].

775    There could be little doubt that Mr Rush’s hurt and distress has been aggravated by the way in which Nationwide and Mr Moran have conducted their defence of this proceeding.

776    Mr Rush gave evidence to the effect that he had suffered as a result of the conduct of the litigation. He referred, for example, to the impact that the “wear and tear of the toing and froing with News Corp and [his] legal team” had had on him. He referred on a number of occasions to the fact that the 11 months during which the litigation was on foot were the worst 11 months of his life. He said that the litigation had been a “very long process” and that his identity, his sense of self and his career had “been under such pejorative media coverage, insinuations that imply that everything that has happened throughout the course of this year is seemingly reported as fact or sensational surprise”. Even in the absence of such evidence, I would in any event infer that the conduct of the proceedings by Nationwide and Mr Moran, the delays occasioned by that conduct and the pleading and reporting of allegations which turned out to be false would plainly have increased Mr Rush’s hurt.

777    I reject the contention that the aggravated hurt that has been suffered by Mr Rush by reason of Nationwide and Mr Moran’s conduct of the proceeding “is a normal incident of litigation”: cf. Habib at [41]. I accept that an applicant in a defamation proceeding is likely to have to endure some further hurt arising from the litigation process and the reporting that usually accompanies it. What Mr Rush has had to endure as a result of the unjustifiable conduct of Nationwide and Mr Moran in the initial stages of the proceeding goes well beyond the norm. I should also make it abundantly clear that in finding that Mr Rush is entitled to aggravated damages arising in part from Nationwide and Mr Moran’s conduct in publishing the article on 20 February 2018, I am not in effect awarding damages arising from that publication. Mr Rush has not sued Nationwide for defamation in relation to that publication and is not entitled to any damages arising from it. I am, rather, determining that the hurt and distress suffered by Mr Rush as a result of the defamatory publications in issue in this proceeding has been aggravated by the manner in which Nationwide and Mr Moran have conducted themselves during the course of this proceeding.

The falsity of the imputations

778    There are indications in some authorities that the falsity of the imputations may entitle the applicant to an award of aggravated compensatory damages: Haertsch at [43]; Waterhouse at 75; Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 738. There could be little doubt that, from the whole of the evidence, Mr Rush was sharply aware of the falsity of the imputations.

779    Nevertheless, the authorities are not all one way on this issue: see Flegg at [243]-[245]; Barrow v Bolt [2013] VSC 226 at [12]-[14]. The parties did not favour the Court with any submissions in relation to this particular of aspect of Mr Rush’s claim for aggravated damages. In the absence of submissions, and in light of the other findings I have made and the uncertainty surrounding whether this provides a proper basis for aggravated damages, I make no finding in relation to whether Mr Rush is entitled to aggravated damages by reason of his knowledge of the falsity of the imputations.

Imputations 10(g) and 10(f)

780    Mr Rush relied on the fact that Nationwide and Mr Moran had never apologised to him for conveying the imputation that he had “falsely denied that the STC had told him the identity of the person who had made a complaint against him” [imputation 10(g)]. That was despite the fact that this imputation had never been the subject of Nationwide and Mr Moran’s truth defence. Likewise, Nationwide has never apologised to Mr Rush for conveying the imputation that his “conduct in inappropriately touching an actress during King Lear was so serious that the STC would never work with him again” [imputation 10(f)]. That was despite the fact that, while this imputation was the subject of Nationwide and Mr Moran’s truth defence, they ultimately led no evidence to prove its truth and made no attempt to justify it.

781    Mr Rush did not give any evidence to the effect that he was hurt by the fact that Nationwide and Mr Moran had not apologised to him in relation to those imputations. That is hardly surprising in relation to imputation 10(f) given that Mr Rush’s evidence had concluded by the time it became apparent that Nationwide and Mr Moran were not going to call Mr McIntyre and were not going to seek to justify that imputation. In any event, I would be prepared, in all the circumstances to infer that Mr Rush was hurt by the failure to apologise in respect of these imputations. Failing to apologise in these circumstances may also be considered to be unjustifiable. I would not, however, consider these to be significant matters in relation to aggravated damages in light of the other findings that have been made in that regard.

Other matters

782    I do not propose to deal with all the other matters in Mr Rush’s particulars of aggravating conduct in any great detail. It suffices to say that I do not consider that the publication of Mr Pullen’s letters (particulars 7 and 11) would have been particularly hurtful for Mr Rush, even though those letters were marked “[n]ot for publication”. Those letters contained Mr Rush’s emphatic denials of the allegations. Nor do I consider that the lateness of Mr Moran’s email to Ms Churchill-Brown on the eve of the publication of the 30 November 2017 articles, or the content of the email itself (particular 9), was itself a circumstance of aggravation. I doubt that the email could be said to be improper or unjustified, even though its lateness and contents plainly disturbed Mr Rush. The same could perhaps be said about the lateness of the request for comment in relation to the 1 December 2017 articles (particular 12). Mr Moran’s email to Ms Churchill-Brown was crude, insulting and perhaps misleading (particular 13), though in the scheme of things I do not consider it was likely to have caused Mr Rush any significant additional hurt. I also doubt that it was improper or unjustifiable for Nationwide to attempt to find general evidence in support of its truth defence (particular 14), though Mr Rush’s nausea at Nationwide’s “last minute snooping around” is perhaps understandable.

Conclusion in relation to aggravated damages

783    Having regard to the findings I have made in relation to a number of Mr Rush’s claims of aggravation, I am satisfied that Mr Rush is entitled to aggravated damages. The cap in s 35 of the Defamation Act accordingly does not apply.

Assessment of general or compensatory damages

784    The assessment of compensatory damages in a defamation case is not a scientific or mathematical exercise. There is no single right answer.

785    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.

786    The defamatory publications themselves were distributed widely, mainly in New South Wales, but also in a number of other States and Territories. The relevant articles were also undoubtedly widely read. They were, and were no doubt intended to be, sensational. The story also spread like wildfire throughout the world. That was perhaps unsurprising given Mr Rush’s profile and standing in the acting profession throughout the world. It must also be recalled that the publications occurred at a time when the “Harvey Weinstein scandal” was explosive news. In all the circumstances some allowance should be made for the “grapevine effect”; the tendency of the “poison” in the defamatory publications to “percolate through underground passages and contaminate hidden springs” or to be “driven underground” only later to emerge from their “lurking place”: Slipper v British Broadcasting Corporation [1991] QB 283 at 300; Broome v Cassell at 1071; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [88]-[89]; Ley v Hamilton (1935) 153 LT 384 at 386; Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535.

787    The relevant defamatory imputations in this case were unquestionably extremely serious. That almost is self-evident and requires no elaboration.

788    There could equally be little doubt that the publications had the effect of destroying Mr Rush’s reputation. In Crampton, Mahoney ACJ said (at 193) that “in some cases, a person’s reputation is, in a relevant sense, his whole life”. That observation plainly applies to Mr Rush and his reputation as an actor of integrity. The award of damages must be sufficiently high to vindicate Mr Rush’s reputation.

789    The effect on Mr Rush was devastating. The hurt to his feelings is undeniable. The evidence of the effect on Mr Rush, referred to in detail earlier, was compelling.

790    The hurt to Mr Rush was aggravated by the conduct of Nationwide and Mr Moran for the reasons I have explained.

791    Mr Rush has provided me with a schedule of cases which sets out awards of damages in some recent defamation cases. I do not consider that this schedule provides much assistance in the assessment of an appropriate award in this case. While I accept that the award in this case must generally be in keeping with awards of general damages in other defamation cases, ultimately each case must be decided on its own unique facts and circumstances. None of the cases included in the schedule are on par with this case. This case is unique.

792    Having regard to all the relevant circumstances, including the general purposes of compensatory damages for defamation, I consider that an appropriate award of compensatory damages is $850,000.

Special damages for economic loss

793    A person who has been defamed is entitled to have damages for the monetary or financial loss caused by the defamatory publications; such damages are not at large but must be appropriately proved: Andrews at 257.

794    Mr Rush alleged, in his pleading, that he has suffered economic loss by reason of the defamatory publications. He claimed that his “reputation as an actor has been irreparably harmed such that he is likely to be shunned by employers in the future”. He subsequently provided further particulars of his claim for special damages or economic loss. Those particulars include the following:

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.

As a result of the publication of the matters complained of, the Applicant has suffered:

(a)    anxiety, embarrassment, hurt, and the 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.

As a direct result of the conduct of the Respondents, he has not done any work since publication of the matters complained of.

795    The affidavit of Mr Pullen which was referred to in the particulars gave the details of a revocation of a job offer which involved Mr Rush doing a voice-over in an Australian documentary for which he was to be paid $30,000 as one example of Mr Rush’s economic loss.

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.

797    Nationwide and Mr Moran disputed Mr Rush’s claim for damages for economic loss. They submitted, in short, that the evidence did not sustain a finding that Mr Rush had suffered any diminution of his earning capacity which had or would be productive of loss.

798    It is convenient to address the claim for damages for economic loss by separately considering the evidence relating to past economic loss and future economic loss. That is so even though, strictly speaking, both past and future economic loss ultimately concern, or arise from, a claimed loss in earning capacity. The main reason for dealing with past and future economic loss separately is that an issue arises about the effect that a judgment which vindicates Mr Rush’s reputation might have on his future earning capacity.

Past economic loss

799    Mr Rush’s evidence was that he had not worked at all since the defamatory publications. He had effectively not earnt any money between the date of the publication and the trial, other than an amount referable to a job performed prior to the publications. That evidence was not seriously disputed by Nationwide and Mr Moran. Nationwide and Mr Moran submitted, however, that the Court would not be satisfied, on the evidence, that they were responsible for the fact that Mr Rush had not worked during the period between publication and trial. They submitted, in effect, that the evidence did not support a finding that the defamatory publications caused Mr Rush’s period of unemployment.

800    Before that issue is addressed, it is necessary to resolve two pleading issues raised by Nationwide and Mr Moran.

Pleading issues

801    The first pleading issue concerned whether Mr Rush’s case for economic loss as pleaded encompassed a specific loss attributable to his withdrawal from the MTC production of the Twelfth Night. This issue was raised when Mr Rush gave evidence about his withdrawal from that play. Senior counsel for Nationwide and Mr Moran objected to Mr Rush’s evidence about his reasons for withdrawing from the play on the basis that the evidence was not part of Mr Rush’s claim for special damages. As a result of that objection, Mr Rush’s evidence on that topic was admitted, at that stage, on the basis that it was limited to evidence of Mr Rush’s hurt feelings. Mr Rush subsequently applied for that restriction to be removed on the basis that his withdrawal from the Twelfth Night had been fairly adverted to in his particulars.

802    In my view, Mr Rush did fairly put Nationwide and Mr Moran on notice that he relied on evidence relating to his withdrawal from the Twelfth Night in support of his economic loss claim. It is true that the particulars did not specifically refer to Mr Rush’s withdrawal from the Twelfth Night. The particulars, including Mr Pullen’s affidavit that was referred to in them, did make however make it clear that Mr Rush claimed that he had not done any work since the publications as a direct result of the publications. It should also be noted that Mr Rush included documents relating to the Twelfth Night in the bundle of documents which he proposed to tender at trial. That again put Nationwide and Mr Moran on notice that Mr Rush intended to adduce evidence at trial about his withdrawal from the Twelfth Night. Nationwide and Mr Moran appeared to appreciate that, because they served a subpoena to produce documents on the MTC.

803    Three further points should be made concerning the issue relating to Mr Rush’s withdrawal from the Twelfth Night.

804    First, despite the limitation having been placed on Mr Rush’s evidence-in-chief concerning his withdrawal from the Twelfth Night, Mr Rush was cross-examined at some length about his decision to withdraw. The questioning was clearly linked to Mr Rush’s claim for economic loss. The general thrust of the questioning was that at the time Mr Potter was retained and instructed to assume that Mr Rush had been unable to work because of the defamatory publications, Mr Rush had not decided to withdraw from the Twelfth Night. It was put to Mr Rush that the assumption that Mr Potter had been asked to make was false for that reason. Mr Rush was also cross-examined about his email exchange with Mr Phillips and another officer of the MTC about his potential withdrawal from the play. Nationwide and Mr Moran tendered that email in their case.

805    Second, the submissions advanced by Nationwide and Mr Moran appeared to be premised on the fact that Mr Rush made a specific and separate claim for lost wages as a result of his withdrawal from the Twelfth Night. Mr Rush’s economic loss claim, however, is properly treated as a claim for diminution of earning capacity, not as a specific claim for lost wages, including the wages he lost as a result of withdrawing from the Twelfth Night: cf. Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 658; O’Brien v McKean (1968) 118 CLR 540 at 546; Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1 at 5. In that regard, Mr Rush’s evidence concerning his withdrawal from that play is properly treated as simply evidence of his inability to work.

806    Third, Mr Phillips of the MTC also gave evidence which touched on Mr Rush’s withdrawal from the Twelfth Night. While objection was taken to some of Mr Phillips’ evidence, the basis of that objection was not that the evidence went outside Mr Rush’s pleaded case. No restriction or limitation was sought or imposed in relation to Mr Phillips’ evidence concerning Mr Rush’s withdrawal from the play.

807    In the circumstances, the temporary restriction that was placed on Mr Rush’s evidence concerning his withdrawal from the Twelfth Night should be, and is, removed. In my view, contrary to the submission made by Nationwide and Mr Moran when the objection was taken, they were fairly on notice that Mr Rush would rely on the circumstances in which he withdrew from that play in support of his claim that he had been unable to work and had therefore suffered economic loss.

808    The second pleading issue is whether Mr Rush’s pleaded claim included the claim that he was unable to work. This issue was raised for the first time in Nationwide and Mr Moran’s final submissions. It may be disposed of shortly.

809    The particulars provided by Mr Rush fairly put Nationwide and Mr Moran on notice that, as part of his economic loss claim, he 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 other ‘tremendous emotional and social hardship’ set out in the affidavit of Nicholas Pullen sworn on 9 April 2018”. Mr Pullen’s affidavit stated, amongst other things, that since the publications Mr Rush was “virtually housebound” and that “whenever in public [Mr Rush] is full of anxiety as he believes people are staring at him in a way that is very challenging, frightening and unnerving”. Perhaps more significantly, it states that due to the publications Mr Rush “has retreated from and lacks the necessary motivation to conduct his normal activities in the theatre and film industries”. I should note, in this regard, that Mr Pullen’s affidavit was admitted into evidence solely in relation to the pleading issue.

810    I should also note that it must have been apparent to Nationwide and Mr Moran that Mr Rush claimed that he was unable to work as a result of the publications at least by the time they received Mr Rush’s expert report in relation to damages. That report was prepared on the basis of assumptions which included the assumption that “[a]s a result of the matters complained of, Mr Rush has been unable to work since the publication”. In my view, Nationwide and Mr Moran were fairly put on notice that this was part of Mr Rush’s economic loss claim.

Main issues

811    Putting quantification to one side for the moment, the main issue is essentially one of causation. General principles of causation apply to defamation in the same way as they apply to other torts. The appropriate approach to causation is accordingly the approach in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; see Duffy v Google Inc (No 2) [2015] SASC 206 at [46]; Chakravarti v Advertiser Newspapers Limited (1998)193 CLR 519 at [177] (per Kirby J). The question is accordingly whether or not the defamatory publications were a cause of Mr Rush’s lost earning capacity productive of financial loss. It is not necessary to prove that the defamatory publications were the cause. It is sufficient to prove that the defamatory publications were a cause or materially contributed to that loss: Selecta Homes and Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd (2001) 79 SASR 451 at [142]-[143]; Haertsch at [75]; Chakravarti at [177].

812    The main factual issue therefore concerns why Mr Rush has not worked since the publications. Were the defamatory publications a cause, or a material cause of that state of affairs?

Why has Mr Rush not worked?

813    Before addressing the evidence in respect of this issue, three general points should be made.

814    First, the evidence which directly related to why Mr Rush has not worked since the publications must be considered in the context of the effectively undisputed evidence that, prior to the publications, Mr Rush was an actor who was in demand and who had worked constantly and consistently over the years. There was evidence that he was “a star and steadily working” and that he “has worked very consistently for the last 40 years”. He was also a person who clearly loved and lived for his work. In the words of Ms Menelaus: “you cannot extract Geoffrey’s work from Geoffrey” and equally “you cannot divorce Geoffrey from his work”. He wanted to work for many years to come.

815    Second, there was also effectively undisputed evidence that the effect that the publications had on Mr Rush personally was devastating. That evidence was considered earlier in the context of general damages and hurt feelings. The evidence revealed, in summary, that Mr Rush was left devastated and distressed by the publications. He went into an emotional spiral and retreated mentally into a “solo world”. He was in a “very dark place”. He was consumed by grief, could not sleep and stopped laughing and talking about work. He lived a reclusive and hermit-like existence.

816    Third, there could be little doubt that the publications had a devastating effect of Mr Rush’s reputation as an actor, particularly in the context of the Harvey Weinstein scandal and the #MeToo movement. Ms Davis’ evidence, for example, was that she had heard people say that Mr Rush’s “career is finished”.

817    Fourth, the evidence that Mr Rush had not worked since the publications was not challenged.

818    Mr Phillips gave the following evidence about Mr Rush’s eventual decision to withdraw from the Twelfth Night:

And since then – since those articles, have you had occasion to discuss them with Mr Rush and how he feels about them?---Yes, of course.

And what has he said to you? How he feels?---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.

And did he tell you how he felt about being able to perform?---Yes, he did. We discussed that a lot. He felt that – he felt, rightly I think - - -

MR BLACKBURN: Your Honour, I object to this.

….

HIS HONOUR: Yes. I will allow it.

MS CHRYSANTHOU: Sorry. Can you please – do you remember the question?---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.

819    Mr Phillips also described how he had observed that Mr Rush had “lost confidence in his ability to perform” and “obsessed about … what was being said about him publicly and his ability to … focus on – on – performing had diminished to a point of no return”. His evidence was that Mr Rush had “talked about the fact that the inherent joy that he felt in performing has been beaten out of him”.

820    Ms Nevin’s evidence was that she had observed that Mr Rush was “losing the capacity to work” and, as an actor, was “grieving for the loss of …walking into a room and not being able to start”. She described how this as a type of “death” given Mr Rush’s deep connection with his work.

821    Ms O’Bryan’s evidence was that her observation was that Mr Rush could not see himself going back into acting and had said to her: “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”.

822    Ms Kershaw’s evidence was that Mr Rush did not, and was not able to, talk about work, as he had before, because “everything … is subsumed by the grief he is carrying”.

823    The effect of Mr Specktor’s evidence was that the publications had damaged Mr Rush and his ability to work. In his evidence-in-chief, Mr Specktor said that the articles had been very destructive of Mr Rush “in terms of his psyche” and that he “he has had a very difficult time thinking about acting in anything”. His evidence was that since the articles, Mr Rush had “focused only on this and, really everything else has just fallen to one side”. Mr Specktor believed that it would be very difficult for Mr Rush “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”.

824    Mr Specktor’s evidence during cross-examination included the following:

So what you’re assuming there, Mr Specktor, is that he would receive some offers but not at the same rate. That’s the implication in that sentence, isn’t it?---You can call it an implication. Okay? I wasn’t quite looking at these things quite in the same way. We’re sitting in a courtroom now, and you’re asking certain things about what’s here. I know what the facts are now. Okay? I really do. I know that he is damaged as a human being. Okay? Damaged as a human being because of this garbage that was in the newspaper. Okay? That much I know, and – and that’s what concerns me. That’s what concerns me about his ability to work. My job is to go get him jobs. Okay? That’s what my job is, not to answer the telephone when somebody calls up.

Mr Specktor, the proposition I’m putting to you is this. Would you please attend to it. You believe that, if he’s cleared, he will at least get some offers, but it might not be at the same rate as before for 12 months or more. That’s what you’re trying to say in - - -?---I – I – I believe ..... there’s some lag time to this, but it’s more important – his ability to work, even if he gets offers – this has damaged him. Ask yourself the question if this was you that was in that newspaper.

(Emphasis added)

825    Mr Specktor evidence in cross-examination also included the following:

If Mr Rush is vindicated by winning this court case, Hollywood will forgive him quick-smart, won’t it? It will - - -?---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.

826    The clear tenor and common theme of this evidence is that Mr Rush had not only lost confidence in his ability to act, but was fearful of the audience reaction, particularly if he appeared on stage. He had also lost the desire or drive to act. It is in that context that the following evidence given by Ms Menelaus should be considered:

And has he told you how he feels about the prospect of acting again?---He doesn’t wish to act again, and that’s what I was trying to say to you before when I – you said I couldn’t. But you can’t divorce Geoffrey from his work. He’s a strange creature. He is his work. You can’t – so I’ve – I have watched him be destroyed, really, has been his whole reason for being.

827    Considered in the context of her evidence as a whole, it is clear that Ms Menelaus was not saying that Mr Rush did not “wish to act” because he wanted to do something else, or because he just wanted to be idle. She was saying that her observation was that Mr Rush had lost the love, desire and drive to work as a result of the publications. That is why she said that his whole reason for being” had been destroyed.

828    Nationwide and Mr Moran submitted that, despite this body of evidence, Mr Rush did not himself expressly give evidence about why he had not worked since the publications. Indeed, he was not directly asked why he had not worked. In their submission, it should be inferred that Mr Rush was not asked that question because the answer would not have assisted his case.

829    There is some considerable force in that submission. It may readily be accepted that it would be open to draw such an inference. It does not necessarily follow, however, that the inference should, let alone must, be drawn in all the circumstances.

830    While Mr Rush was not directly asked why he had not worked since the publication, he was specifically asked why he had withdrawn from the Twelfth Night. His evidence was as follows:

But tell us, first, when did you make a decision not to go ahead with Twelfth Night?---I pondered that while I was away in Italy, and we spent two and a-half weeks there and then a week and a-half in London. And I had pretty much made up my mind that the kind and mental and physical state that I was in, I would not be able to actually play this role to the best of my ability in this very adult, very dark – it’s probably Shakespeare’s greatest comedy where he can slam drama up against farce. And I met with Simon Phillips, who was on a some kind of fellowship event in Berlin, and he happened to be doing a workshop in London, and we met, and I said, “I’m seriously thinking – I just want to give you time to consider replacing me.” Because that’s – would be important on a professional level. But I said, “I’m thinking about – I may have to withdraw from the production, because I don’t think I’ve got it in me.”

….

You mentioned in one of your answers, the – I think you said the mental and physical state you were in. You were talking with reference to the point up to which you told Mr Phillips that you were withdrawing from Twelfth Night. Could you tell his Honour what was the mental and physical state you were in at that time?---I would say around March or April the degrees of sleeplessness and poor appetite and feeling hurt myself about the levels of distress it was creating in my son and daughter and my wife and some close friends, but I was weak. I was weakening. And I know the kind of stamina – this play is strong and is challenging in many ways, from the comedy spectrum as Lear. It’s a three-hour play. And I know how to read my sense of self – my capabilities. And I had reached – I had hit a brick wall.

Did you have any concerns about how, for example, the audience might receive you?---For these articles?

No, as a result of the articles, but how the audience, say, at Twelfth Night might receive you?---I was worried that I wouldn’t be in a funny frame of mind. This is a very clever complex farce. The nature of that photo was the last page of the brochure. The front page of the brochure was the other side of Malvolio, which is the dominant side. He’s a very puritanical conservative killjoy, but he is deluded and tricked into thinking that his – the woman that is his superior is secretly in love with him, and his deluded enough to do the things that are written in this anonymous letter to him of how she would like him to appear. And he turns up as a kind of court Cassinova. And the comedy is rather black and farcical.

Looking at the article – I’m sorry, I think I cut you off. I didn’t mean to interrupt you - - -?---No, I – it wasn’t paranoia, but I thought my presence in the production would also spoil it, because of the stain that was building up over the last 11 months, and ruin it for what already had been established as a very good cast. A lot of – Simon Phillips, the director’s extended family that he had worked with, Christie Whelan who I had worked with in The Importance of being Earnest and Drowsy Chaperone. And she was someone I was – had kind of mentored a bit. Richard Piper, who I had worked with 30 years ago and was a very close mate. Frank Woodley, who had never done Shakespeare but I think he’s a genius comedian, and I thought he was going to be a great person to collide with the idiot role of Sir Andrew Aguecheek. And I felt that my presence could be – could overwhelm the purity of the play.

831    As noted earlier, Mr Rush was cross-examined about his withdrawal from the Twelfth Night and was question, in particular, about an email exchange he had with Mr Phillips and another officer of the MTC in June 2018. This email exchange was before Mr Rush decided to withdraw from the production, though it broadly corroborates his evidence concerning the reasons for his withdrawal. On 9 June 2018, Mr Rush wrote that while he was confirmed to play Malvolio in the production, Mr Phillips knew that it was a “serious ‘Standby’ proposition” because, amongst other things, his “creative spirit, currently, [was] at a very low ebb” and he did not want his “legal profile to destroy any audiences’s [sic] connection to the play – with all the wrong reasons”.

832    It may readily be accepted that some of the reasons Mr Rush gave for withdrawing from the Twelfth Night may have been unique to that production, and perhaps unique to acting in the theatre generally. Nevertheless, Mr Rush’s evidence about his withdrawal from Twelfth Night plainly revealed his state of mind at the time in relation to acting generally. The absence of any direct evidence from Mr Rush as to why he did not work on any other productions, including film and television, must also be considered in light of the powerful evidence given by him about the devastating and debilitating effect that the articles had had on him generally. That evidence was considered in detail earlier.

833    Finally, it should be noted in this context that there was direct evidence of at least one offer that had been made to Mr Rush being withdrawn or cancelled because he had been associated with the #MeToo “situation”. That was an offer to do a voice-over for a documentary about the Great Barrier Reef. That offer or contract was cancelled in April 2018. The email to Mr Rush’s agent cancelling the offer or contract stated as follows:

Sorry we have been playing tag. Just missed you again so I’m writing to you.

Cutting straight to the chase. Our distributors for the film contacted us the other day and said that they think that Geoffrey situation, while unresolved, is currently an issue for them. Its very troubling. As you know I am mixed up in another #MeToo situation. Quite different cases in SO many ways. However, Geoffrey’s current situation has come to bite us too. Obviously, I knew but I was hoping to brazen it out. All news is global as we know and it has come to our distributors’ attention and they have reacted.

I am very, very sorry.

Please call me.

834    This was the only evidence of a specific cancellation or withdrawal of an offer of work.

835    There was, however, a significant body of evidence from which it was open to infer that it was likely that as a result of the publications Mr Rush would receive considerably less offers of work than he had prior to the publications. That was because his reputation as an actor was considerably damaged by the publications. To make matters worse, the effect or likely effect of the publications was to connect him to the #MeToo movement and the taint of the Harvey Weinstein scandal.

836    This body of evidence is discussed in detail later in the context of future economic loss. The evidence was essentially in the form of expert evidence from Mr Specktor, Mr Schepsi and Ms Russell about, in general terms, Mr Rush’s future work prospects. That evidence was largely responsive to expert evidence adduced by Nationwide and Mr Moran from Mr Marks. While the evidence of those witnesses was generally looking to the future, the underlying premise of the evidence of each of the witnesses was that Mr Rush’s career had been damaged by the publications and the resulting connection with the #MeToo movement. For example, Ms Russell’s evidence addressed what she believed was likely to happen if Mr Rush’s reputation was vindicated by the judgment in this proceeding. Her evidence included:

I have never seen anything slam into the wall with as much speed and ferocity as the “#MeToo” movement. Unfortunately for Mr Rush, false claims or not, the movement, being in its infancy, has not refined its response or addressed behaviours in the gray areas. Perhaps it will evolve to such a place, but by then Mr Rush’s career is likely to be irreparably damaged.

837    Nobody seriously questioned the underlying premise that Mr Rush’s career and earning capacity had been damaged by the publications. The question was what would happen if his reputation was eventually vindicated by this proceeding. The general effect of the evidence of Mr Specktor, Mr Schepsi and Ms Russell was that the impact of the articles on Mr Rush’s acting career was, and would continue to be, significant. Mr Marks ultimately appeared to accept that the articles and their republication would have had an impact, though he maintained that the impact would have been small or at the “lesser end of the spectrum”.

838    In their submissions, Nationwide and Mr Moran pointed out that there was virtually no evidence about what, if any, offers had been made to Mr Rush during the period between publication and trial. There was accordingly no evidence of any specific opportunities that were available but lost during the period as a result of the effect of the publications. Nationwide and Mr Moran pointed to evidence which tended to suggest that as at November 2017, Mr Rush had no specific offers or work in the pipeline. Mr Rush himself gave the following evidence:

All right. Now, I’m going to come back to what happened after the article, but can I just ask you this: as at November 2017 what were your intentions about your future as an actor; did you intend to keep working, Mr Rush?---Yes, I did. I think at that stage I probably was already in discussions for – no, I had shut Storm Boy. Sorry. No, after that I was waiting for the phone to ring.

839    Mr Rush then went on to give a rather long-winded explanation of his future work intentions the effect of which was that he wanted to continue to work until his mid to late 70s.

840    There is some force in Nationwide and Mr Moran’s submission concerning the paucity of evidence relating to offers of work during the relevant period.

841    Mr Rush’s Australian agent, Ms Churchill-Brown did not give evidence. Mr Rush’s Hollywood agent, Mr Specktor, did give evidence, but he did not give evidence specifically about the receipt or non-receipt of offers of work during the period between the publications and trial. Indeed, there was a suggestion in his evidence that Mr Rush was not open to receive offers in the period between publication and trial. His evidence in that regard included the following:

And can we take it that what you’re saying there is that he would receive offers if he’s cleared by the court, but you think it might be at a lower rate?---Well, I can’t answer that, because I’m not fielding any offers at the moment.

842    Nationwide and Mr Moran submitted that Mr Specktor’s reference to “not fielding any offers” meant that he was not actively seeking offers for work on behalf of Mr Rush, or that he may have been receiving offers, but was saying that Mr Rush was unavailable. If that is right, in light of Mr Specktor’s evidence, referred to earlier, that Mr Rush’s “psyche” had changed, that Mr Rush had been “[d]amaged as a human being”, and that he was concerned about Mr Rush’s ability to work, it might readily be inferred that Mr Specktor was not “fielding any offers” because he knew that Mr Rush’s mental state was such that he was unable to work. In other words, it strongly supports the inference that Mr Rush had not worked because both he and his agent believed that he was unable to work.

Findings

843    Having regard to the whole of the evidence, I am satisfied on the balance of probabilities that the defamatory publications were a cause of Mr Rush’s loss of earning capacity and financial loss in the period between publication and trial. I am satisfied on the balance of probabilities 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. As a result of the publications and the effect they had on him mentally and physically, he was simply unable to muster the confidence, concentration, drive, enthusiasm and stamina to act. That is plainly the most rational, logical and reasonable inference in all the circumstances. Mr Rush’s evidence was that he feared or lacked the confidence to be seen in public following the publications. How, in those circumstances, could he possibly be expected to have competently performed in front of an audience, or even a camera.

844    It is difficult to think of any other rational or logical hypothesis or inference which could explain why Mr Rush had stopped doing what he loved, and stopped earning any income after the publications. Nationwide and Mr Moran did not posit any other rational or reasonable hypothesis. They did not suggest, for example, that Mr Rush was simply malingering or taking a vacation in the period between the publications and trial.

845    Mr Rush was cross-examined at length about a trip he took to Italy with Ms Menelaus during this period. Mr Nevin visited them during this trip. Ms Menelaus and Ms Nevin were also questioned about this trip. I am satisfied, on balance, that this trip was part of an attempt by Mr Rush and Ms Menelaus to escape from the trauma and anxiety that the publications had caused him. Ms Nevin’s evidence was that it was hoped that the trip would provide some respite for Mr Rush and Ms Menelaus and would be a “time of peace and reparation”, though she added that that did not turn out be the case. I do not accept that the evidence concerning the trip indicated that Mr Rush was able to work, but just chose to travel and enjoy himself. Nationwide and Mr Moran did not ultimately pursue any such suggestion. Much the same can be said for the evidence concerning Mr Rush’s visit to the Adelaide Festival. It was never squarely put to Mr Rush that he had simply chosen not to work and was malingering.

846    Nationwide and Mr Moran also pointed to the evidence that Mr Rush was apparently “waiting for the phone to ring” in November 2017. They did not, however, go so far as to submit that Mr Rush would not have received any offers of work in late 2017 or throughout 2018 even if the 30 November and 1 December 2017 articles had not been published. I would in any event readily infer, given the evidence concerning the high demand for, and heavy utilisation of, Mr Rush’s services in the pa