FEDERAL COURT OF AUSTRALIA

Rush v Nationwide News Pty Limited (No 8) [2019] FCA 1382

ORDERS

THE COURT ORDERS THAT:

1.    The application by the respondents that Wigney J recuse himself from continuing to hear the matter be dismissed.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    On 8 December 2017, Mr Geoffrey Rush commenced proceedings in this Court against Nationwide News Pty Limited and Mr Jonathon Moran. Mr Rush alleged that Nationwide and Mr Moran had defamed him. He sought, amongst other things, damages and relief in the form of a permanent injunction restraining Nationwide and Mr Moran from republishing the defamatory imputations that were allegedly conveyed by the relevant publications. On 11 April 2019, I handed down a judgment in which I found in favour of Mr Rush and ordered Nationwide and Mr Moran to pay Mr Rush $850,000 for non-economic loss: Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (the liability judgment). The judgment left some issues outstanding, including whether a permanent injunction should be made against Nationwide and Mr Moran as sought by Mr Rush. That issue was not resolved in the liability judgment because the parties had agreed that the question of injunctive relief was most appropriately dealt with after the question of liability had been determined.

2    Mr Rush in due course pressed his claim for a permanent injunction. Nationwide and Mr Moran, however, applied for me to recuse or disqualify myself from determining that issue on the basis of apprehended bias. They contended that various statements and findings that I had made in determining the issues in the proceeding to that point gave the “appearance of a preference or partiality” for Mr Rush and therefore the appearance that I would not bring an impartial mind to the resolution of the outstanding issue relating to the injunctive relief sought by Mr Rush.

3    On 23 May 2019, I declined to recuse myself. Having read and heard detailed submissions from the parties, I was not satisfied, in all the circumstances, that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the outstanding issue in the proceeding. I indicated that I would publish my reasons for that finding in due course. These are those reasons.

BACKGROUND

4    Shortly after the proceeding was commenced, it was allocated to my docket for case management. Throughout 2018, I presided over numerous case management hearings and determined a number of procedural or interlocutory disputes. I delivered four judgments in relation to those interlocutory matters prior to the commencement of the trial. The interlocutory disputes and the judgments which resolved them included: an application by Mr Rush to strike out parts of Nationwide and Mr Moran’s defence (Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473 – Rush No. 1); an application by Nationwide and Mr Moran to amend their defence and file a cross-claim against a third party (Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; 359 ALR 564 – Rush No. 2); and an application by Nationwide and Mr Moran for leave to adduce evidence served otherwise than in accordance with the procedural orders which had been made (Rush v Nationwide News Pty Ltd (No 4) [2018] FCA 1558 – Rush No. 4).

5    The trial commenced on 22 October 2018. It ran for 15 days in late October and early November 2018. During the course of the trial, I delivered another two judgments: one relating to an application by Nationwide and Mr Moran to exclude expert opinion evidence that Mr Rush sought to adduce (Rush v Nationwide News Pty Ltd (No 5) [2018] FCA 1622 – Rush No. 5) and one relating to another application by Nationwide and Mr Moran to further amend their defence (Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851 – Rush No. 6). The latter judgment also dealt with suppression or non-publication orders that were made in the context of the proposed amended defence.

6    Altogether, the judgments I delivered prior to and during the trial ran to many hundreds of pages. They dealt with a number of difficult and complex case management, procedural and evidentiary issues. Nationwide and Mr Moran relied, in support of their allegation of apprehended bias, on a relatively small number of statements made in those judgments which they contended referred to them in “derogatory terms”. The precise nature of those statements and the context in which they were made will be explained later. It suffices at this point to note that, at no point prior to the delivery of the liability judgment, did Nationwide and Mr Moran raise any complaint or objection about any statement made by me in the interlocutory judgments, let alone apply for me to recuse myself on the basis of anything said or decided by me in those judgments. Nationwide and Mr Moran’s explanation for that was that the apprehension of bias arising from the statements made in the interlocutory judgments “was conveyed for the first time upon the delivery” of the liability judgment.

7    In the course of their closing submissions at trial, Nationwide and Mr Moran proposed the following approach to the determination of the issues raised by the proceedings:

Questions of injunctive relief (if any), costs and interest (if any) are most conveniently dealt with once the Court has decided the question of liability and any question of damages.

8    The question of injunctive relief would almost certainly not have arisen if the question of liability was determined adversely to Mr Rush. Thus, Nationwide and Mr Moran must have believed or envisaged that I would be able to impartially determine, and be seen to impartially determine, the outstanding issues, including in relation to injunctive relief, on their legal and factual merits, even if I resolved the question of liability adversely to them.

9    The liability judgment was handed down on 11 April 2019. The judgment is over 200 pages long. Not surprisingly, it deals in considerable detail with, and makes findings concerning, what was one of the major issues in the matter; whether the defamatory imputations, which were found to have been conveyed by the publications were substantially true. As has already been noted, that issue was resolved adversely to Nationwide and Mr Moran. Verdict and judgment was entered for Mr Rush and Nationwide and Mr Moran were ordered to pay Mr Rush general damages, including aggravated damages, assessed in the sum of $850,000.

10    Consistently with the approach proposed by the parties, the liability judgment did not finally resolve all issues. The outstanding issues included the injunctive relief sought by Mr Rush, as well as costs and interest. The quantification of the economic loss found to have been suffered by Mr Rush was also not finally resolved. As events transpired, the parties were able to agree on orders relating to costs, interest and the quantification of economic loss based on the factual findings set out in the liability judgment. The only outstanding issue was the issue concerning injunctive relief.

11    Following the handing down of the liability judgment, and despite the position taken by them in their final submissions, Nationwide and Mr Moran contended that I should recuse myself from determining the outstanding issue concerning injunctive relief on the basis of apprehended bias. The grounds relied on by Nationwide and Mr Moran in support of the recusal application primarily concerned various factual findings, and the reasons given in support of those findings, which were contained in the liability judgment. Most of the impugned findings and reasoning concerned the reliability of the evidence given by various witnesses in respect of the allegations which provided the basis for Nationwide and Mr Moran’s truth defence. As discussed earlier, Nationwide and Mr Moran also relied on various statements made in the interlocutory judgments that had been delivered many months earlier.

12    The specific findings and reasoning in the liability judgment which, together with the statements made in the interlocutory judgments, are the basis of the assertion of apprehended bias will be detailed later. It suffices at this point to note that Nationwide and Mr Moran’s contention was that the impugned statements, findings and reasoning “together give the appearance of a preference or partiality for” Mr Rush.

13    Needless to say, by this point I had resolved a number of the legal and factual issues which were necessary to resolve in determining liability and damages in favour of Mr Rush. What Nationwide and Mr Moran appeared to be contending, however, was that my findings and reasoning gave the appearance that I might not have brought an impartial mind to the resolution of those legal and factual issues; that for some reason, which remained largely unexplained, I might not have arrived at those findings on the merits, but simply because I was partial towards or favoured Mr Rush. It was on that basis, apparently, that Nationwide and Mr Moran contended that there was an appearance that I might not resolve the outstanding issue concerning injunctive relief impartially and on its merits.

14    It should also be noted in this context that the outstanding issue concerning injunctive relief was very narrow in scope. The parties largely agreed that the question whether the injunctive relief sought by Mr Rush should be granted essentially turned on an assessment of the existence and degree of any threat or risk of a repetition of the publication of the defamatory imputations and, to a lesser extent, on the proper construction of s 23 of the Defamation Act 2005 (NSW).

15    Mr Rush’s contention that there was a risk that Nationwide and Mr Moran would republish the defamatory imputations was essentially based on the nature and content of various articles that Nationwide had published following the liability judgment. Nationwide and Mr Moran asserted that there was no threat or risk of republication and that the articles relied on by Mr Rush were simply fair reports or opinion pieces about the liability judgment. The question of injunctive relief did not turn on the assessment or reliability of any of the evidence given by any of the witnesses at trial. The parties relied on affidavit evidence from their respective solicitors on the question of injunctive relief. Neither of the solicitors was cross-examined and there was no real factual issue concerning their evidence.

relevant principles

16    The relevant principles in relation to apprehended bias are well settled. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ conveniently summarised the principles in the followings terms (at [6]-[8]):

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

(Footnotes omitted.)

17    The two step test in Ebner requires the identification of what might affect the judge’s impartiality and its logical connection with the possibility of departure from impartial decision-making in the case at hand. Ebner concerned cases where the first step was said to have been satisfied because the judge had a direct or indirect pecuniary interest in the cause. There was no suggestion that I had any direct or indirect interest in the litigation. Nor was there any suggestion that I had any association with any party or witness. Rather, as has already been noted, the asserted appearance of impartiality was said to have flowed entirely from a handful of what were said to be derogatory statements made in some of the interlocutory judgments delivered by me and some of my findings and reasoning in the liability judgment.

18    The fair-minded lay observer is “postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”: Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [12]. While the fictional or hypothetical observer is not a lawyer and is not assumed to have a detailed knowledge of the law, they are taken to be reasonable and to not be “wholly uninformed and uninstructed about the law in general or the issue to be decided”: Johnson at [53] (per Kirby J citing R v George (1987) 9 NSWLR 527 at 536 per Street CJ). It is necessary to attribute to the fair-minded lay observer knowledge of all of the circumstances of the case: CUR24 v Director of Public Prosecutions [2012] NSWCA 65; 83 NSWLR 385 at [39].

19    The “reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”: Johnson at [13]. That includes “the exigencies of modern litigation” and modern case management practices: Johnson at [13]. The plurality in Johnson noted the following in that regard (at [13]):

At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.

20    Similarly, in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283, Heydon, Kiefel and Bell JJ referred to the active role a modern judge is likely to play in case management and said (at [140]) that “[t]rial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence [and] [r]outine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding”.

21    In Doggett v Commonwealth Bank of Australia [2019] FCAFC 19, the Full Court (Kerr, Davies and Thawley JJ) said as follows in relation to claims of apprehended bias based on rulings in interlocutory proceedings or judgments (at [11]):

Claims of apprehended bias arise not infrequently, as they have in this appeal, in respect of interlocutory proceedings. The usual position in relation to interlocutory proceedings is that an apprehension of bias is not per se manifested by an unfavourable finding. That is because often there will be instances prior to a final decision where a judge will require steps to be taken or not taken which disappoint one side or another in a proceeding. It is inherent in the interlocutory process that such preliminary decisions are made. Unfavourable findings, in such circumstances, are not to be taken by a fair-minded person as an expression that the judge has other than an impartial and unprejudiced mind in relation to the substantive proceeding.

22    In Re J.R.L.; Ex parte C.J.L (1986) 161 CLR 342, Mason J said the following in relation to allegations of apprehended bias based on the conduct of the judge during the litigation, which would include statements and findings made in interlocutory judgments (at 352):

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

(Footnotes omitted.)

23    In the same case, Wilson J said (at 359-360):

A court of review must be careful not to exaggerate the significance of actions or statements made by a judge in the course of a proceeding. There must be “strong grounds” (Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd.) for inferring the existence of a reasonable suspicion.

(Footnote omitted.)

24    The requirement that an apprehension of bias, based on judicial conduct, be “firmly established” was also emphasised in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 (Gaudron and McHugh JJ) and British American Tobacco at [45], where French CJ said it “gives content to the requirement that an apprehension of bias, in that class of case, be reasonable” and [71] (Gummow J). French CJ and Gummow J were in dissent in British American Tobacco, though the dissent mainly turned on the application of the facts to the relevant principles.

25    Apprehended bias will not generally be established by “pointing to adverse findings” in the judgment, even where the findings involve strong adverse credit findings: Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; 332 ALR 128 at [234] Ward JA, Basten JA and Emmett AJA agreeing). Similarly, the fact that “a judge has not accepted submissions, or has taken a view of evidence in a way that one of the litigants disagrees with or asserts is wrong in principle, is not enough to establish a reasonable apprehension of bias”: Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; 170 A Crim R 366 at [95]; see also SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [36]; Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416 at [14]; DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270; 363 ALR 681 at [33]. In Hamod v State of New South Wales (No 11) [2008] NSWSC 967, Harrison J said (at [20]) that unfavourable decisions against a party “are not, and can never be, without more sufficient to support or establish the existence or manifestation of an objective apprehension of bias”.

26    Where “numerous separate aspects are relied upon to suggest a reasonable apprehension of bias, it will usually be necessary to assess the individual elements separately and then cumulatively”: Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705 at [176] (Basten JA, Allsop P and Macfarlan JA agreeing); see also Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [114]; IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151 at 192; Tarrant J, Disqualification for Bias (Federation Press, 2012) at p 301.

27    In some circumstances, a litigant who fails to object to comments made by a trial judge during the trial which are later said to have given rise to an apprehension of bias may be taken to have waived the right to object once judgment has been handed down. In Vakauta v Kelly (1989) 167 CLR 568, the trial judge made derogatory remarks during the trial about the defendant’s medical witnesses. No objection was taken when the remarks were made. Brennan, Deane and Gaudron JJ observed, in that context (at 572):

Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

28    Dawson J similarly said (at 579) that “where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does not presently intend to exercise that right, he may be held to have waived it”.

29    As events transpired, the failure to object was not fatal in Vakauta. That was because in his judgment, the trial judge effectively “revived” the comments earlier made about his preconceived views about the witness. The comments in the judgment, in the context of the earlier comments, were held to have conveyed an appearance of bias in the actual decision. As Dawson J put it (at 579), the comment made in the final judgment indicated that “his Honour failed to set aside his prejudice in his consideration of the evidence called by the defendant”.

THE GROUNDS ALLEGED TO SUPPORT AN APPREHENSION OF BIAS

30    Nationwide and Mr Moran contended that the cumulative effect of certain statements made in some of the interlocutory judgments, and certain findings and reasoning in the liability judgment, gave rise to a reasonable apprehension that I preferred or was partial to Mr Rush and might not bring an impartial mind to the resolution of the remaining issue involving injunctive relief. They relied, in that regard, on the following 14 specific grounds outlined in Nationwide and Mr Moran’s outline of submissions dated 15 May 2019 (ROS). Some of the grounds which were included in the outline of submissions were not pressed at the hearing of the recusal application. An additional ground was raised in oral submissions.

31    Ground one (ROS 5(a)) concerned the manner in which the issue of credit was approached in the liability judgment as between witnesses called by Mr Rush and witnesses called by Nationwide and Mr Moran. It was contended, in support of this ground, that there was an inconsistency between the way Ms Robyn Nevin’s credibility was assessed and the way in which Mr Mark Winter’s credibility was assessed. Ms Nevin was called as a witness by Mr Rush and Mr Winter was called by Nationwide and Mr Moran. It was submitted that whereas Ms Nevin’s frankness and candour about the state of her recollection was considered to be “to her credit”, Mr Winter’s candour about the state of his recollection was taken into account against his credit. Similarly, it was submitted that, whereas an inconsistency between Mr Winter’s evidence of what he observed and his otherwise positive views of Mr Rush was held to have cast some doubt on the reliability of his evidence, it was not considered that there was any inconsistency in Ms Nevin’s evidence about her reaction when Ms Eryn Jean Norvill’s allegations against Mr Rush were made public.

32    The second ground (ROS 5(b)) concerned the reliance which was placed on an email authored by an officer of the Sydney Theatre Company (STC), Ms Annelies Crowe (Exhibit A68). That email contained Ms Crowe’s account of what Ms Norvill had told her about the conduct or actions of Mr Rush during the rehearsals and performances of King Lear. Nationwide and Mr Moran contended that Exhibit A68 was used as a significant basis for the credit finding against Ms Norvill despite the fact that Mr Rush did not call Ms Crowe as a witness.

33    The third ground (ROS 5(d)) concerned the finding at [389] of the liability judgment that Mr Winter’s recollection of an incident which occurred during the rehearsals was prompted by something that was said by someone at a conference which he attended along with Nationwide and Mr Moran’s lawyers and Ms Norvill’s lawyers. Nationwide and Mr Moran contended that this finding was tantamount to a suggestion that Mr Winter was coached and that this “very serious accusation” was not put to Mr Winter.

34    The fourth ground (ROS 5(e)) concerned the statement at [416] of the liability judgment that Ms Nevin and another witness called by Mr Rush, Ms Helen Buday, were of “impeccable character and integrity”. Nationwide and Mr Moran contended that those were matters which were “irrelevant to the issue of credit and in respect of which there was no evidence” and were indicative of a “partial view towards [Mr Rush], his case and his witnesses”.

35    The fifth ground (ROS 5(f)) concerned a statement which was said to have been made at [447] of the liability judgment to the effect that there was no evidence to suggest that Mr Rush had in fact sexually harassed anyone in the past, and that that proposition was not put to Mr Rush in cross-examination. Nationwide and Mr Moran’s complaint is that “this was not a matter in issue on the pleadings”. Nationwide and Mr Moran did not advance any oral or written submissions which elaborated on this ground.

36    The sixth ground (ROS 5((h)) again concerned Exhibit A68. Nationwide and Mr Moran contended that there was an inconsistency between the finding (at liability judgment [363] and [365] to [367]) that Exhibit A68 contained a reliable account of what Ms Norvill told Ms Crowe, on the one hand, and the finding (at liability judgment [773]), on the other hand, that Nationwide and Mr Moran’s reliance on the email, or a hearsay account of it, when publishing the defamatory matters was unjustified. This was, in Nationwide and Mr Moran’s submission, the “starkest contrast in the judgment”. They contended that it was difficult to see how the two findings could sit together.

37    The seventh ground (ROS 5(i)) related to the finding that Mr Rush’s evidence in relation to his withdrawal from Twelfth Night could be admitted into evidence in relation to his special damages claim in circumstances where, in Nationwide and Mr Moran’s submission, it had not been pleaded. Nationwide and Mr Moran did not advance any additional submissions of substance in relation to this ground, or any submissions as to why the allegedly erroneous admission of this evidence gave rise to an apprehension of bias.

38    The eighth ground (ROS 5(j)) concerned the award of special damages on the basis that Mr Rush had been unable to work due to the emotional effect the articles had on him. Nationwide and Mr Moran submitted that the “case was not pleaded [in that] way” and that Mr Rush had not given evidence to that effect. Nor, in their submission, was there any evidence that Mr Rush had received no offers of work.

39    The ninth and tenth grounds (ROS 5(k) and (l)) also concerned the award of special damages. The ninth ground was that the award of special damages was calculated on the basis of a period of two years after judgment during which Mr Rush would not receive offers of work at the same level he had prior to the publications. This was said to be erroneous because one of the expert witnesses called by Mr Rush, his agent Mr Fred Specktor, gave evidence that Mr Rush would receive offers at the same rate in about 12 months. The tenth ground was that the award of special damages was excessive and not supported by the evidence.

40    It should be noted, in relation to the eighth, ninth and tenth grounds, that while Nationwide and Mr Moran submitted that errors were made in awarding special damages, they did not advance any written or oral submissions which explained why those alleged errors gave rise to an apprehension of bias.

41    The eleventh ground (ROS 5(m)) concerned statements made in some of the interlocutory judgments that were said to refer to Nationwide and Mr Moran in “derogatory terms”. Nationwide and Mr Moran’s written submissions attached a schedule which extracted some paragraphs from some of the interlocutory judgments. Most of the statements which were included in the schedule were not specifically addressed in Nationwide and Mr Moran’s submissions.

42    Those statements which were elaborated on in Nationwide and Mr Moran’s submissions were: the statement in Rush No. 1 (at [17]), in relation to the headline “Star’s Bard Behaviour” in the second matter complained of, that “the sub-editors … simply could not help themselves”; the statement in Rush No. 2 (at [1]) that the approach that Nationwide and Mr Moran had taken to their defence “threatens to stymie or frustrate the achievement of [the] overarching objective of the Court’s civil practice and procedure”; the statement in Rush No. 2 (at [2]) that Nationwide and Mr Moran had been “quick to publish” but “slow to defend”; the statement in Rush No. 2 (at [71]) that there were “reasonable grounds to suspect that the real reason that Nationwide and Mr Moran have pressed for the inclusion of the previously struck out paragraphs of the defence … [was to] seek to re-agitate the subpoena to the STC”; the statement in Rush No. 2 (at [152]) to the effect that the available inference was that Nationwide and Mr Moran had sought to join the STC so they could “get their hands on the STC’s documents pursuant to a discovery order and thereby “fish” for a defence”; the statement in Rush No. 6 (at [33]) concerning the nature of the particulars of truth in the first iteration of its defence; and the statement in Rush No. 6 (at [66]) that Nationwide and Mr Moran had “frustrated and impeded Mr Rush’s attempt to have his claim heard” and had “unsuccessfully sought leave to appeal from the judgment striking out parts of their defence of qualified privilege”.

43    The particular context in which those statements were made will be addressed later.

44    The twelfth ground (ROS 5(n)) related to the decision in Rush No. 4 to disallow the evidence of Mr Colin Moody.

45    The thirteenth ground (ROS 5(o)) related to the decision in Rush No. 5 to admit as expert evidence opinions of two close associates of Mr Rush.

46    The fourteenth ground (ROS 5(p)) related to the decision in Rush No. 6 refusing Nationwide and Mr Moran leave to amend their defence and to rely upon the evidence of “witness X”, who was later identified as Ms Yael Stone.

47    It should be noted, in relation to the twelfth, thirteenth and fourteenth grounds, that Nationwide and Mr Moran did not advance any submissions, written or oral, as to why the decisions in Rush No. 4, Rush No. 5 and Rush No. 6 were erroneous, let alone why or how those decisions gave rise to any appearance or apprehension of bias.

48    The fifteenth ground was raised only in oral submissions. It related to one aspect of the reasoning relating to the reliability of Ms Norvill’s evidence concerning Mr Rush’s conduct during the rehearsals and production of King Lear. That aspect was the apparent inconsistency between Ms Norvill’s evidence and certain contemporaneous statements that she made to two journalists about her experiences working with, and alongside, Mr Rush.

CONSIDERATION

49    As discussed earlier, Nationwide and Mr Moran did not contend that any of the individual grounds relied on by them would alone establish apprehended bias. Their case was that the grounds, “taken cumulatively and as a whole”, established apprehended bias.

50    It is nevertheless necessary to first assess the individual grounds separately and to then assess them cumulatively.

Ground one – Assessment of credit or credibility

51    As explained earlier, the main thrust of Nationwide and Mr Moran’s submission in relation to this ground was that the approach I took to the assessment of the credit of Ms Nevin was inconsistent with the approach I took to the assessment of the evidence of Mr Winter in two respects: first, it was said that I considered Ms Nevin’s frankness and candour in admitting that her recollection of one matter was not good was to her credit, whereas I considered Mr Winter’s candour in admitting that his recollection of an incident was vague was “against his credit”; and second, it was said that I considered that the inconsistency between Mr Winter’s evidence about one alleged incident and his otherwise positive views about Mr Rush cast considerable doubt on the reliability of his evidence about that incident, whereas I did not see any inconsistency in Ms Nevin’s evidence about her reaction when Ms Norvill’s allegations against Mr Rush became public.

52    Nationwide and Mr Moran’s submissions concerning the inconsistency of the approach taken to the evidence of Ms Nevin and Mr Winter have no merit. There was no inconsistency in the approach that was taken to the assessment of the evidence of Ms Nevin and Mr Winter in any respect, let alone any significant or material respect. Nationwide and Mr Moran’s submissions mischaracterise the findings that were made about the reliability of the evidence given by Ms Nevin and Mr Winter and seek to extract some fairly minor observations out of their proper context so as to conjure up some illusory inconsistency.

53    The following points may be made. The paragraph references are all references to paragraphs of the liability judgment.

54    First, despite the fact that Mr Winter’s evidence was of fairly narrow compass, the nature and reliability of that evidence was dealt with at some length: see generally at [345]-[346] and in respect of specific incidents at [385]-[393], [475]-[476] and [432]-[449] of the liability judgment. The matters now seized upon by Nationwide and Mr Moran were fairly minor considerations in the overall assessment of the reliability of Mr Winter’s evidence.

55    Second, Mr Winter’s evidence that his recollection of one of the alleged incidents was the “vaguest of [his] recollections” was not taken into account against his credit as contended by Nationwide and Mr Moran. It was simply taken into account in assessing the overall cogency and reliability of his account of that incident. It is hardly surprising that Mr Winter’s evidence that his recollection of the incident was vague was considered to be relevant in assessing the cogency of his account. It was, in any event, only one of the relevant considerations in considering the reliability of Mr Winter’s evidence.

56    Third, the same can be said of the observation (at [346], [393] and [476] of the liability judgment) that Mr Winter’s evidence about what he saw Mr Rush do was difficult to reconcile with his evidence that Mr Rush was an “exemplary company leader”. The point which was made in the liability judgment was that it was hard to see how Mr Winter could have formed and retained that very positive view of Mr Rush if he had witnessed the serious incidents which were said to have occurred. That is again hardly a startling proposition. It was also again one relatively minor consideration in the overall assessment of the reliability of Mr Winter’s evidence.

57    Fourth, the nature and reliability of Ms Nevin’s evidence was also dealt with at considerable length in the liability judgment: generally at [323]-[326] and in relation to specific incidents or events at [401]-[404], [432]-[449], [491]-[493] and [574]. The matters now seized upon by Nationwide and Mr Moran could, at their very highest, be considered to be very minor issues in the overall assessment of the reliability of Ms Nevin’s evidence.

58    Fifth, Ms Nevin’s credibility as a witness and the reliability of her evidence generally was not challenged by Nationwide and Mr Moran: see [323]-[326]. The observation at [325] that Ms Nevin’s frankness and candour in admitting that she could not recall how she became aware that Ms Norvill was the complainant was “to her credit” must be considered in that context. It was also only one extremely minor consideration in the overall assessment of Ms Nevin’s credibility and the reliability of her evidence.

59    Sixth, the observation now seized upon by Nationwide and Mr Moran must also be considered in the context of the detailed consideration at [438]-[448] of the liability judgment of the limited significance of the issue as to how Ms Nevin became aware that Ms Norvill was the complainant. Ultimately very little turned on it and Nationwide and Mr Moran gave it little or no attention in their final submissions at trial.

60    Seventh, the nature and character of Ms Nevin’s evidence that she could not recall how she became aware that Ms Norvill was the complainant, which was not a significant fact in issue, was materially different to Mr Winter’s concession that his recollection of one of the key incidents was vague. The incident described by Mr Winter was a significant fact in issue.

61    Eighth, Nationwide and Mr Moran did not, in their final submissions at trial, submit that Ms Nevin’s evidence about why she was supportive of and not angry towards Ms Norvill when her allegations against Mr Rush were made should be rejected, or that her evidence in that regard reflected adversely on her credit or her reliability as a witness. The reasons for accepting Ms Nevin’s evidence in relation to that issue are given in [449] of the liability judgment. It was by no means implausible that Ms Nevin’s primary emotions when the story broke were concern for Ms Norvill and anger towards the STC, particularly given the nature and circumstances in which Ms Norvill had been unwillingly publicly exposed as the complainant. The inconsistency now asserted by Nationwide and Mr Moran is largely illusory and, perhaps unsurprisingly, was not a matter to which Nationwide and Mr Moran gave any real emphasis in their submissions at trial.

62    Ninth, there is in any event no real similarity or comparison between the inconsistency in Mr Winter’s evidence referred to at [346], [393] and [476] of the liability judgment and the contended inconsistency in Ms Nevin’s account of her initial response when she learnt of the allegations.

63    There is, in all the circumstances, no basis for Nationwide and Mr Moran’s contention that a fair-minded lay observer, who fairly read the whole of the liability judgment, would perceive there to be any inconsistent or unequal approach to the assessment of the reliability of the evidence of Ms Nevin and Mr Winter. There is no basis for asserting that this aspect of the liability judgment is capable of contributing to any appearance of bias.

Ground two – Reliance on Exhibit A68 in the absence of evidence from Ms Crowe

64    The circumstances in which Exhibit A68 came to be tendered and received into evidence are addressed in some detail at [355] to [360] of the liability judgment. In short, Exhibit A68 was included in the list of the documents that Nationwide and Mr Moran proposed to tender at trial, though ultimately the document was tendered by Mr Rush over Nationwide and Mr Moran’s objection. The basis for the objection was that the email contained or comprised hearsay evidence and that its probative value was outweighed by the prejudice arising from the fact that its contents could not be tested because Ms Crowe had not been called. That was a curious submission given that Nationwide and Mr Moran had subpoenaed Ms Crowe, had served a document purporting to be an outline of her evidence and had foreshadowed, in their opening address, that they might call her. It was at all times open to Nationwide and Mr Moran to call Ms Crowe if they wanted to. It was their choice not to call on the subpoena.

65    In those circumstances, the complaint now made about the use to which Exhibit A68 was put is difficult to understand. In any event, the complaint has no merit. It was not, in all the circumstances, incumbent on Mr Rush to call Ms Crowe, particularly given that Nationwide and Mr Moran bore the onus of proving the substantial proof of the defamatory imputations. Nor could that have been reasonably expected given that she had been subpoenaed by Nationwide and Mr Moran and that Nationwide and Mr Moran had not only served a purported outline of her evidence, but had indicated in their opening address that they might call her.

66    If the complaint now made concerns the reliability of the statements recorded in the document, that issue is addressed in detail in [363] to [366] of the liability judgment. Nationwide and Mr Moran did not, in their submissions, directly challenge the findings in relation to that issue, let alone give any cogent reasons why those findings were erroneous. If the complaint concerns the basis upon which the document was found to be relevant to an assessment of the reliability of Ms Norvill’s evidence, that issue is considered in detail at [368] to [377] of the liability judgment. In short, there were apparent inconsistencies between what Ms Norvill had told Ms Crowe about the alleged incidents and her evidence about those incidents at trial. Nationwide and Mr Moran did not, in their submissions, directly challenge the findings or reasoning in relation to that issue, let alone give any cogent reasons why the findings or reasons were erroneous. It is difficult to see why or how the inconsistencies of Ms Norvill’s account could be said to be irrelevant to an assessment of the reliability of her evidence.

67    There is, in all the circumstances, no basis for Nationwide and Mr Moran’s contention that a fair-minded lay observer, who fairly read the whole of the liability judgment, would perceive there to be any indications of partiality or prejudgment in the consideration which was given to Exhibit A68 in this context.

Ground three – Finding that Mr Winter’s evidence about one incident was “prompted”

68    Nationwide and Mr Moran’s submissions in relation to this ground mischaracterise the finding made at [389] of the liability judgment.

69    The fact that Mr Winter’s recollection of the incident in question appears to have been prompted by something that someone said at the conference was a fact which was volunteered by him during cross-examination. There was no suggestion, let alone accusation, in the liability judgment that this was tantamount to “coaching” and no such finding was made. Nothing said in [389] amounted to a criticism of Nationwide, Mr Moran or their lawyers. Nor indeed was there any criticism of Mr Winter. There was no need to “put” anything to Mr Winter, let alone put anything to Nationwide, Mr Moran or their lawyers, who did not, in any event, give evidence. The simple point made in [389] is that Mr Winter’s recollection of the incident was a belated one. That was a relevant consideration in the assessment of the reliability of his recollection. It was also only one of a number of considerations that are detailed in [387] to [393] of the liability judgment.

70    There is no basis for Nationwide and Mr Moran’s contention that a fair-minded lay observer, who fairly read the whole of the liability judgment, would perceive there to be any indications of partiality or prejudgment in this aspect of the consideration of the reliability of Mr Winter’s evidence.

Ground four – Character and integrity of Ms Nevin and Ms Buday

71    The observation in [416] of the liability judgment in relation to the character and integrity of Ms Nevin and Ms Buday needs to be read in context. The context includes not only what is said in [416], but also what is said at [414] and [415] of the liability judgment. The point that was being addressed was the apparent submission by Nationwide and Mr Moran that, contrary to their evidence, Ms Nevin and Ms Buday may have witnessed some of the incidents described by Ms Norvill, but either not appreciated that Mr Rush’s behaviour was culturally inappropriate because of their age, or not known what to do in the face of that conduct. Neither proposition was put to Ms Nevin or Ms Buday in cross-examination.

72    The statement in [416] relating to Ms Nevin and Ms Buday’s “impeccable character and integrity” is plainly a reference back to the observation in [415] that each of them was “a highly-qualified, experienced, accomplished and well-respected, if not revered, figure in theatre circles” and that “[n]o question was raised about their character or integrity”. There was, in that regard, unchallenged evidence about Ms Nevin and Ms Buday’s qualifications, experience and reputation in theatre circles. The contention that there was no evidence of Ms Nevin’s and Ms Buday’s character and integrity accordingly has no merit.

73    The submission that Ms Nevin and Ms Buday’s qualifications, experience and reputation in theatre circles was “irrelevant to the issue of credit” is puzzling to say the least. What was apparently being submitted (although it had not been put in cross-examination) was that Ms Nevin and Ms Buday had witnessed the alleged incidents, but had not appreciated the inappropriateness of the conduct or had not known what to do in the face of it. The suggestion that the evidence concerning their qualifications, experience and reputation in theatre circles was irrelevant to an assessment of the merits of that submission is fanciful.

74    There is no basis for Nationwide and Mr Moran’s contention that a fair-minded lay observer, who fairly read the whole of the liability judgment, would perceive there to be any indications of partiality or prejudgment in the observation concerning Ms Nevin and Ms Buday’s character and integrity in [416] of the liability judgment.

Ground five – Statement in [447] of the liability judgment

75    This ground is another instance where a relatively insignificant statement made in the liability judgment is taken entirely out of context and mischaracterised by Nationwide and Mr Moran. The statement in the last two sentences of [447] of the liability judgment, to the effect that there was no evidence to suggest that Mr Rush had in fact ever sexually harassed anyone in the past and that no such proposition was put to Mr Rush in cross-examination, must be read in the context of [436] to [449]. Those paragraphs deal with the conflict between the evidence of Ms Norvill and Ms Nevin concerning a conversation they had during the production of the play All My Sons. Ms Norvill’s evidence was that during that conversation she told Ms Nevin that she had been harassed by Mr Rush during King Lear and that Ms Nevin had responded by saying “I didn’t think Geoffrey was doing that anymore”. Ms Nevin denied that any such conversation had occurred.

76    The point that was being made in [447] of the liability judgment was that Ms Norvill’s version of the conversation appeared somewhat improbable in the light of Ms Nevin’s evidence as a whole. The statement she was said to have made implied that she was aware that Mr Rush had harassed actors in Ms Norvill’s position before. That was inconsistent with Ms Nevin’s evidence concerning Mr Rush’s reputation in theatre circles. It was in that context, and in that context alone, that the statement in the last two sentences of [447] was made. It was a very minor point added as a note to the point that was being made in respect of the disputed conversation. In those circumstances, and in that context, the fact that this was not a matter in issue in the pleadings is entirely immaterial.

77    It is, in all the circumstances, impossible to see how this fairly minor observation could give rise to, or contribute to, any reasonable appearance of bias.

Ground six – Exhibit A68 and aggravated damages

78    Nationwide and Mr Moran contended that there was a stark contrast between the use made of Exhibit A68 in relation to an assessment of the reliability of Ms Norvill’s evidence, on the one hand, and in the consideration of aggravated damages, on the other. When the relevant parts of the liability judgment which deal with those two issues are read fairly and in context, however, there is no such contrast and no such inconsistency.

79    The relevance of Exhibit A68 to the overall assessment of the reliability of Ms Norvill’s evidence concerning Mr Rush’s conduct during King Lear has already been adverted to. In short, it was found, for the reasons given at [361] to [366] of the liability judgment, that Ms Crowe’s account of what Ms Norvill had told her, as recorded by her in her email, was not an unreliable or inaccurate account as Nationwide and Mr Moran had submitted. That is not to say that the email contained an accurate or reliable account of what Mr Rush actually did. Contrary to the submission advanced by Nationwide and Mr Moran, no such finding was made in the liability judgment. The point of significance, in terms of the reliability of Ms Norvill’s evidence, was that there was an inconsistency between what Ms Norvill told Ms Crowe about Mr Rush’s conduct, as recorded in the email, and the evidence which she gave about that conduct.

80    The entirely different point that was made in [767] to [773] of the liability judgment, in relation to aggravated damages, was that Nationwide and Mr Moran had pleaded certain allegations about Mr Rush’s conduct in their defence, as originally filed, at a time when they had not spoken with Ms Norvill. Nationwide then prominently published details of the allegations contained in the defence on the front page of The Daily Telegraph. It was noted that, while Nationwide and Mr Moran had never explained how the allegations had come to be included in their initial defence, it could fairly be inferred that the allegations were based on either Ms Crowe’s email, or a hearsay account of it. By the time the matter had gone to trial, however, Nationwide and Mr Moran were contending that the account in the email was inaccurate or unreliable. The main point which was being made in the liability judgment in that context was that the allegations which were initially included in the defence, and then published in The Daily Telegraph, were made at a time when Nationwide and Mr Moran had not spoken to Ms Norvill to confirm the accuracy of the allegations.

81    When the relevant parts of the liability judgment dealing with Exhibit A68 are read fairly and reasonably, there is no inconsistency and no contrast between the approaches taken to Exhibit A68 in those two entirely different contexts. There is accordingly no basis for the contention that a fair-minded lay observer, who had fairly read the whole of the liability judgment, would perceive there to be any indications of partiality or prejudgment in the way Exhibit A68 was considered.

Ground seven – Admission of Mr Rush’s evidence concerning his withdrawal from Twelfth Night

82    Nationwide and Mr Moran did not advance any, or any substantive, submissions in relation to this ground. It relates to the admission of Mr Rush’s evidence concerning his withdrawal from the Melbourne Theatre Company’s production of the play Twelfth Night. That evidence was considered to be relevant to the issue of economic loss. Nationwide and Mr Moran’s contention appears to be that the evidence in relation to that issue was wrongly admitted because it was not raised in the pleadings.

83    The question whether Mr Rush’s withdrawal from Twelfth Night was pleaded is considered in some detail in [801] to [807] of the liability judgment. It was, in short, found that Mr Rush had fairly put Nationwide and Mr Moran on notice that he would rely on evidence relating to his withdrawal from Twelfth Night in support of his economic loss claim. Exactly how or why Nationwide and Mr Moran contend that that ruling is wrong is entirely unclear. They did not make any submissions on that point.

84    Perhaps more significantly, even if there was some basis for finding that the evidence was wrongly admitted, Nationwide and Mr Moran did not advance any submissions about how or why any such error would give rise to an appearance or apprehension of bias. A fair-minded lay observer would appreciate that on occasion evidence is wrongly admitted in the course of a trial. That does not suggest that the judge who admitted the evidence was partial or had prejudged the matter. Impartial judges sometimes make mistakes. Decisions about the admission of evidence are sometimes finely balanced.

85    There is, in all the circumstances, no sound basis for finding that the admission of the evidence concerning Twelfth Night could in any way give rise to or contribute to a reasonable perception of bias.

Grounds eight, nine and ten – Findings concerning special damages

86    Nationwide and Mr Moran made no substantive submissions in relation to grounds eight, nine and ten.

87    The grounds themselves raise a number of complaints, including that Mr Rush’s case in respect of special damages was not pleaded in terms of him not being able to work due to the emotional effect the articles had on him, that Mr Rush gave no evidence to that effect, that the assessment of future economic loss for two years after judgment was contrary to the evidence of one of Mr Rush’s witnesses and that the award was excessive and not supported by the evidence. It is difficult to respond to those assertions in the absence of any submissions from Nationwide and Mr Moran. It suffices to make the following points.

88    First, the question whether Mr Rush’s claim for economic loss was properly pleaded is dealt with in [794] to [796] and [808] to [810] of the liability judgment. It is unclear why or how Nationwide and Mr Moran contend that the findings made concerning the pleading issue were wrong.

89    Second, the evidence relating to Mr Rush not working following the publications, including Mr Rush’s evidence in respect of that issue, is addressed in [813] to [834] of the liability judgment. The findings made in respect of the evidence are set out in [843] to [848] of the liability judgment. It is unclear why or how Nationwide and Mr Moran contended that the findings concerning Mr Rush’s inability to work were wrong. The bald assertions by Nationwide and Mr Moran about the complete absence of evidence in support of Mr Rush’s special damages case are unsustainable.

90    Third, the quantification of past and future economic loss are addressed in [852] to [921] of the liability judgment. The quantification of Mr Rush’s economic loss was a particularly complex and difficult issue. The finding that there would be a two year period during which Mr Rush would not receive offers at the same rate is addressed in [878] to [896] of the liability judgment. The effect of the evidence given by Mr Specktor was not, as Nationwide and Mr Moran apparently now contend, simply that Mr Rush would receive offers at the same rate in about 12 months. Mr Specktor’s evidence in respect of that issue is specifically addressed at [884] and [893] of the liability judgment. Mr Specktor’s evidence was also not the only evidence in relation to that issue. Mr Fred Schepisi’s evidence, for example, was that “even with the most favourable outcome in court it is reasonable to assume there would be a delay of twelve to eighteen months before anyone would even start to think of considering Mr Rush for film work of the level he has been used to”: see [880]; see also the summary of the evidence of Ms Robyn Russell at [882] of the liability judgment. It appears that Nationwide and Mr Moran now contend that the Court was required to simply accept Mr Specktor’s opinion (which was not, in any event, in the precise terms they suggest it was) and ignore the opinions of Mr Schepisi and Ms Russell.

91    The bald assertion that the award of special damages was excessive and unsupported by evidence is, in the face of the detailed reasoning in respect of this difficult issue, unhelpful and difficult to comprehend in the circumstances.

92    In any event, even if there was some basis for the assertions made by Nationwide and Mr Moran about errors in relation to the findings concerning special damages, they again provide no basis for the apparent submission that the fact that such errors were made would give rise to an appearance of bias. As has already been noted, the issues raised by Mr Rush’s claim for special damages were particularly difficult and complex. If errors were made, it would not follow that a fair-minded lay observer might conclude that the errors might have been the product of impartiality or bias. As noted earlier, a fair-minded lay observer would appreciate that impartial judges can sometimes make errors in resolving complex issues.

Ground eleven – Derogatory statements

93    The allegedly derogatory statements relied on by Nationwide and Mr Moran were made in some of the interlocutory judgments to which reference has already been made. As already noted, no complaint or objection was taken to any of the statements identified by Nationwide and Mr Moran until after the liability judgment was handed down. Nationwide and Mr Moran seek to explain the absence of complaint by asserting that the “apprehension of bias was conveyed for the first time upon the delivery of the [liability] Judgment when the cumulative effect of the matters referred to above was apparent”. The “matters referred to above” are the complaints made by Nationwide and Mr Moran about the findings and reasoning in the liability judgment which are the subject of grounds one to ten.

94    The contention that the alleged apprehension of bias conveyed by the statements made in the interlocutory judgments was not conveyed until the liability judgment was handed down is difficult to understand. The circumstances of this case are fundamentally different to the circumstances in Vakauta. In that case, the impugned statement which was made by the trial judge during the trial was effectively revived or repeated in the reserved judgment later delivered. The fact that there was no objection or complaint to the statement when it was first made was accordingly considered to be immaterial. Here, however, none of the allegedly derogatory statements made in the interlocutory judgments were repeated or revived in the liability judgment. The statements largely concerned procedural or case management issues and had nothing whatsoever to do with the merits of the substantive proceeding or the credibility or reliability of any of the evidence of the witnesses who were called at the final hearing.

95    This case is also materially different to the scenario which was considered in Royal Guardian. That case mainly concerned the appellant’s contention that it had been denied a fair trial because of the trial judge’s excessive interventions throughout the course of the trial. The critical point concerning waiver which was emphasised in Royal Guardian was that it was not possible to identify any “inescapable point” at which objection to the trial judge’s interventions should have been, but was not, taken by the appellant’s counsel.

96    It is, in those circumstances, difficult to see why it should not be concluded that, by not objecting to any of the statements made in the interlocutory judgments prior to the handing down of the liability judgment, Nationwide and Mr Moran waived their right to subsequently object. It is, however, unnecessary to arrive at any concluded position in respect of waiver. That is because there is, in any event, no merit in Nationwide and Mr Moran’s belated complaints about the statements made in the interlocutory decisions. Fairly read and in context, those statements were not and are not capable of conveying or contributing to any reasonable apprehension of bias.

97    The first complaint concerns the statement in Rush No. 1 at [17] that the “sub-editors, or whoever it was who was responsible for the headlines and sub-headlines, simply could not help themselves”. This rather innocuous aside was simply a mild reference to the pun employed in one of the headlines in the first matter complained of. Fairly read, it was not a criticism of Nationwide, Mr Moran or the article in question. There is nothing inherently wrong with a newspaper using a pun in a headline and the statement did not suggest otherwise. Issues may ultimately arise about what, if anything, the pun conveyed, however the statement now the subject of criticism said nothing about that issue.

98    It is, in all the circumstances, highly unlikely that any fair-minded bystander would perceive any impartiality or appearance of bias from this single inoffensive sentence which played no part whatsoever in the decision or reasoning in the judgment and said nothing whatsoever about the issues in the substantive proceeding. It is not at all surprising that Nationwide and Mr Moran raised no complaint or objection to it either at the time that the judgment in Rush No. 1 was handed down, or at any time prior to liability being determined against them.

99    The second complaint concerns the statement in Rush No. 2 at [1] that the approach taken by Nationwide and Mr Moran to their defence of Mr Rush’s claim “threatens to stymie or frustrate the achievement of that overarching objective of the Court’s civil practice and procedure”. The overarching objective adverted to in that statement was the objective of resolving civil claims as quickly, inexpensively and efficiently as possible. The third complaint concerns the statement at [2] of the same judgment that “[i]t would not be unfair to say, in all the circumstances, that while Nationwide and Mr Moran were quick to publish, they have been slow to defend”.

100    Those two statements may conveniently be dealt with together. They must also be considered in the context of the judgment in Rush No. 2 read as a whole. The relevant context included that the progress of the proceedings had at that point been delayed by events which could fairly be attributed to the actions of Nationwide and Mr Moran and the finalisation or settling of their defence. Those delays and the conduct of Nationwide and Mr Moran are described in [5] to [15] of Rush No. 2. Equally, the context included that the applications by Nationwide and Mr Moran which were the subject of the interlocutory judgment would, if granted, have resulted in further delay. The applications were for leave to file a further amended defence which, amongst other things, sought to reinsert various parts of the defence which had already been struck out by the decision in Rush No. 1, and for leave to file a cross-claim against the STC.

101    The important point to emphasise is that delay was an important discretionary consideration in determining both those applications. The issue of delay is addressed, in that context, in [69] to [73] and [137] to [149] of Rush No. 2. The introductory remarks in [1] and [2] of Rush No. 2 judgment, about which specific complaint is now made, were adverting to the issue of delay. In that context, the statements about how Nationwide and Mr Moran had been conducting their defence were not and were not likely to be seen as being arbitrary, capricious or gratuitous. They were directed to a legitimate consideration of an issue which was plainly relevant to the determination of the interlocutory applications. They were likely to be seen as such by a fair-minded lay observer. They were, and are, in those circumstances highly unlikely to be seen by a fair-minded lay observer of the proceeding as a sign or appearance of any impartiality or bias.

102    It might further be added that, to the extent that the statements were critical of Nationwide and Mr Moran, those criticisms were directed to case management issues and the way in which the proceedings had been conducted to that point, not the merits of the substantive proceedings or the merits of Nationwide and Mr Moran’s defence. A fair-minded lay observer who read the whole of the judgment and appreciated the procedural history and context in which the statements were made would also see that the criticisms were far from unwarranted in all the circumstances.

103    The fourth and fifth complaints also concerned statements made in Rush No. 2. Those statements were (at [71]) that there were “reasonable grounds to suspect that the real reason that Nationwide and Mr Moran have pressed for the inclusion of the previously struck out paragraphs of the defence … [was to] seek to re-agitate the subpoena to the STC” and, to similar effect, (at [152]) that the available inference was that Nationwide and Mr Moran had sought to join the STC so they could “get their hands on the STC’s documents pursuant to a discovery order and thereby “fish” for a defence”.

104    It is again necessary to read those statements in context.

105    One of the discretionary considerations which had to be addressed in determining whether leave to amend should be granted was the explanation for the delay in making the amendment application. Nationwide and Mr Moran’s solicitor gave evidence in an attempt to explain the delay. The statement at [71] of Rush No. 2 addressed the purported explanation for the delay. It was not an arbitrary or gratuitous criticism. In any event, it was not ultimately found that Nationwide and Mr Moran’s purpose of seeking to reinsert the previously struck out paragraphs was to re-agitate the subpoena. Nor was any finding made which was “akin to an abuse of process” as now contended by Nationwide and Mr Moran. Rather, it was simply found that the course taken by Nationwide and Mr Moran had been productive of delay, that the delays would be added to if leave was granted to file the further amended defence, and that the explanation which had been provided for the delay was unsatisfactory: see Rush No. 2 at [73].

106    The statements at [152] in Rush No. 2 were also directed at important discretionary considerations in determining whether Nationwide and Mr Moran should be granted leave to file the proposed cross-claim. They must be read in the context of the discussion of the discretionary considerations at [92] to [154]. The discretionary considerations included: the merits of the proposed cross-claim, considered at [92] to [136]; delay and prejudice, considered at [137] to [143]; the explanation for the delay in filing the cross-claim, considered at [144] to [149]; and the countervailing considerations, considered at [150] to [152]. The countervailing considerations included that the effect of refusing leave would be that Nationwide and Mr Moran would, if they intended to pursue their claim against the STC, do so in separate proceedings. That in turn was said to give rise to the risk of inconsistent findings: see [153] to [154] in Rush No. 2.

107    The findings and reasoning in [152] of Rush No. 2, including the particular statements about which complaint is now made, were primarily directed to the countervailing considerations. The important finding in that regard was that, in all the circumstances, it was unlikely that separate proceedings would be commenced against the STC and that the spectre of inconsistent findings in two sets of proceedings was therefore more apparent than real: see also [153] of Rush No. 2. The comments that are now criticised were simply part of the reasoning in arriving at that conclusion. As events transpired, separate proceedings were not commenced against the STC.

108    It is also important to emphasise that while provisional views were expressed about the merits of Nationwide and Mr Moran’s proposed cross-claim against the STC, it was emphasised that no concluded view had been formed at that point about whether the cross-claim was reasonably arguable (see [135] of Rush No. 2) and that nothing that had been said should be taken to be directed to the merits of Nationwide and Mr Moran’s defence to Mr Rush’s claim (see [136] of Rush No. 2). Those emphatic statements would operate to assuage any possible concerns about prejudgment that a fair-minded bystander might otherwise have entertained.

109    It may be accepted that the findings made in Rush No. 2 were unfavourable to Nationwide and Mr Moran in that particular interlocutory context. As the Full Court pointed out in Doggett at [11], however, “[u]nfavourable findings, in such circumstances, are not to be taken by a fair-minded person as an expression that the judge has other than an impartial and unprejudiced mind in relation to the substantive proceeding”.

110    It may equally be accepted that, in resolving the interlocutory applications which were the subject of that judgment, some statements were made which were critical of Nationwide and Mr Moran’s conduct of the proceeding and the resulting delays. Those criticisms, however, were unlikely to convey to the fair-minded lay observer that any view had been formed about the substantive proceeding, or that I was in any respect partial towards Mr Rush or prejudiced against Nationwide and Mr Moran. The criticisms were directed to case management and procedural issues and had nothing to do with the merits of the substantive proceedings. Equally, the fair-minded lay observer would read those procedural criticisms in the context of the history of the litigation and the interlocutory judgment as a whole. Having done so, the fair-minded lay observer would most likely conclude that the criticisms were not arbitrary or capricious, but rather were, in all the circumstances, entirely warranted.

111    The schedule attached to Nationwide and Mr Moran’s submissions identified [5] in Rush No. 4 as containing various statements which were said to give rise to an apprehension of bias. That paragraph, however, simply referred back to the statements made in Rush No. 1 and Rush No. 2 about the delay occasioned by Nationwide and Mr Moran’s conduct of the proceedings. Nothing more need be said about those statements. It suffices to say that the issue of delay and the conduct of the proceedings by Nationwide and Mr Moran were again important discretionary considerations in determining the application which was the subject of Rush No. 4. A fair-minded lay observer would read the statements in Rush No. 4 concerning delay in that context and would not apprehend any prejudgment or partiality arising from them.

112    The remaining series of statements that are said to give rise to an apprehension of bias are all contained in the judgment in Rush No. 6, which was a judgment delivered ex tempore during the course of the trial. The application which was the subject of consideration and resolution in that judgment was a further application by Nationwide and Mr Moran to amend their defence to include new particulars of truth. The background to that application is summarised in [1] to [9] of the judgment. The schedule annexed to Nationwide and Mr Moran’s submissions identify [10] and [29] of Rush No. 6 as being the subject of complaint, however, no substantive submissions were advanced in relation to those paragraphs. Those paragraphs also essentially simply refer back to the procedural history of the matter and to the judgments in Rush No. 1 and Rush No. 2. The same can be said of [37] in Rush No. 6, which is also referred to in the schedule. Those statements would not give rise to any apprehension of bias for the reasons already given.

113    The two paragraphs of Rush No. 6 which were specifically addressed in Nationwide and Mr Moran’s submissions are [33] and [66]. In [33], some observations are made about the initial iteration of Nationwide and Mr Moran’s defence. Those observations should be read in the context of the entire discussion of Nationwide and Mr Moran’s defence in [29] to [51] in Rush No. 6. That discussion provided necessary background to the amendment application. The significant point, identified in [51], is that, unlike the extant allegations and particulars of truth, the new particulars upon which Nationwide and Mr Moran sought to rely did not involve any allegations concerning Mr Rush’s behaviour during King Lear or any alleged behaviour towards Ms Norvill. That point is also noted in [33], in relation to the initial defence, as is the fact that the particulars in the initial defence were expressed in “very general, vague, and at times ambiguous, terms” and that they were “in part materially inconsistent with” the particulars of truth which were relied on by Nationwide and Mr Moran at trial.

114    It is not clear exactly how those statements in [33] of Rush No. 6 are said to give rise to an apprehension of bias. Nationwide and Mr Moran submitted that those statements “really did not bear … on the amendment application” and that “punishment of a party who wishes to amend is not part of the considerations that should be taken into account in determining whether an amendment should be allowed”. As has already been noted, however, read in context the statements in [33] do no more than provide necessary background to the amendment application. To that extent, they did bear on the application. The impugned statements said nothing about punishment and did not in any way suggest that the amendment application could or should be refused so as to punish Nationwide and Mr Moran. Nor would a fair-minded lay observer read them in that way, particularly if they are read fairly and in context. The observations concerning the initial iteration of the defence are not capable of conveying any impression or appearance of prejudgment or partiality.

115    Paragraph 66 of Rush No. 6, which is the other paragraph now singled out for complaint, is simply one paragraph in a lengthy discussion, in [53] to [71] of that judgment, of the chronology of the proceedings to that point in time. It should be read in that context. The point emphasised in [66] is that Mr Rush had, at all times, pressed for an early hearing and that the actions of Nationwide and Mr Moran had effectively frustrated his attempt to have the claim heard. Nationwide and Mr Moran contended that this was an allegation of “deliberate impropriety” on their part. Read fairly and in context, however, that statement amounted to nothing more than a finding that Nationwide and Mr Moran’s conduct of the proceeding, as summarised in [53] to [65], had in fact resulted in considerable delay. It was not suggested that Nationwide and Mr Moran had engaged in the conduct for that purpose, or with the intention of frustrating the progress of the case. The statement did not amount to an allegation or finding of deliberate impropriety and was highly unlikely to have been considered as such by a fair-minded lay observer who was aware of the full history and context of the proceeding.

116    The other statement in [66] of Rush No. 6, which was the subject of specific complaint was the statement that Nationwide and Mr Moran had “not only unsuccessfully sought leave to appeal from the judgment striking out parts of their defence of qualified privilege, but they also unsuccessfully sought to reintroduce the struck-out paragraphs on a different basis”. In Nationwide and Mr Moran’s submission, this was an “unjustified criticism” of their “pursuing their rights of seeking leave to appeal”. That submission again has no merit. Read fairly and in context, the statement was simply a recitation of what had occurred as part of the lengthy consideration of the relevant procedural chronology. It is not capable of conveying the appearance of prejudgment or partiality.

117    It follows that none of the statements in Rush No. 1, Rush No. 2, Rush No. 4 and Rush No. 6, considered individually or cumulatively, conveyed, or were capable of conveying, the appearance of prejudgment or partiality. To be sure, those judgments contained unfavourable findings in relation to the procedural or interlocutory applications which were under consideration. Those unfavourable findings did not, however, in any way traverse any of the issues in the substantive proceedings. The judgments also contained some criticisms of Nationwide and Mr Moran’s conduct of the proceedings, though only to the extent necessary to consider the important discretionary considerations, in particular delay and prejudice to Mr Rush, which it was necessary to have regard to in resolving the interlocutory disputes. A fair-minded lay observer who was aware of the full procedural history, and the context in which the critical statements were made, would not have seen them as raising any appearance of prejudgment or partiality in relation to the substantive proceeding.

118    As was noted earlier, where a recusal application is based on the conduct of a judge during the course of the litigation, including during case management or interlocutory hearings, a reasonable apprehension of bias must be “firmly established” and there must be “strong grounds” for inferring the existence of a reasonable apprehension: Re J.R.L. at 352 (per Mason J) and 359-360 (per Wilson J). Neither of those tests have been made out by Nationwide and Mr Moran.

Ground twelve – Rush No. 4

119    Nationwide and Mr Moran did not favour the Court with any submissions as to why the decision or reasons in Rush No. 4 were capable of giving rise to or conveying a reasonable apprehension of bias. The interlocutory application resolved by this judgment was an application by Nationwide and Mr Moran for leave to call evidence from a witness, Mr Moody, whose outline of evidence had been served well outside the procedural timetable. Nationwide and Mr Moran also sought leave to call the witness by videolink. Both applications were dismissed.

120    The Rush No. 4 judgment contains a detailed consideration of the procedural background to the application (at [4] to [13]), the nature of Nationwide and Mr Moran’s defence and the potential relevance of Mr Moody’s evidence to that defence (at [14] to [27] and [35] to [44]), the purported explanation for the delay in serving the outline (at [28] to [31]) and the potential prejudice to Mr Rush from the late service of the outline (at [32] to [34], [47] and [52] to [56]). The question whether Mr Moody should be permitted to give evidence by videolink was also considered at [50] to [51]. Nationwide and Mr Moran did not submit that any of the findings made in the judgment were incorrect or that the Court’s exercise of discretion in respect of this procedural issue miscarried in any way.

121    While the outcome of this application was unfavourable to Nationwide and Mr Moran, there is no basis for concluding that the outcome or the judgment would have given any appearance of prejudgment or partiality in respect of any aspect of the substantive proceeding.

Ground 13 – Rush No. 5

122    Exactly the same can be said concerning Rush No. 5. Nationwide and Mr Moran did not advance any submissions in support of the proposition that the decision or reasons in Rush No. 5 were capable of conveying the appearance of bias to a fair-minded lay observer. This was an application by Nationwide and Mr Moran to exclude evidence that Mr Rush intended to call from two expert witnesses. The evidence was admitted over Nationwide and Mr Moran’s objection and their application to exclude it was dismissed. It is unnecessary to rehearse the basis of Nationwide and Mr Moran’s objections to the evidence or the reasons for admitting the evidence. Nationwide and Mr Moran did not submit that the findings in the judgment were wrong or that the discretion to admit or not exclude the evidence miscarried in any way. While the outcome was again unfavourable to them, there is no basis for finding that this decision conveyed, or was capable of conveying, any appearance or impression of prejudgment or partiality. That is so even if, as events transpire, it is ultimately found on appeal that the evidence was wrongly admitted.

Ground 14 – Rush No. 6

123    The judgment in Rush No. 6 has already been discussed in the context of Nationwide and Mr Moran’s contention that it included derogatory statements about them which gave rise to an appearance of bias. That contention has no merit for the reasons already given.

124    Nationwide and Mr Moran did not otherwise advance any submissions which explained how or why this judgment was capable of giving rise to any reasonable apprehension of bias. The decision involved the balancing of a number of discretionary considerations in what was, in all the circumstances, a very difficult procedural or case-management issue. Those considerations, and the reason why the balance ultimately tipped in favour of not permitting the late amendment, are considered in detail in the judgment. It is unnecessary to rehearse the reasoning, particularly as Nationwide and Mr Moran did not advance any submission to the effect that the exercise of discretion miscarried. There is no basis for finding that this judgment gave, or was capable of giving, the appearance of bias, partiality or prejudgment.

Ground 15 – One aspect of the reasoning relating to the reliability of Ms Norvill’s evidence

125    Nationwide and Mr Moran contended that one aspect of the reasoning in relation to the reliability of Ms Norvill’s evidence was “so improbable that it would give rise to … an apprehension of partiality”. That supposedly improbable reasoning was said to be the finding to the effect that the contemporaneous statements that Ms Norvill made to journalists about her positive experiences working with and alongside Mr Rush in King Lear were generally inconsistent with her evidence about Mr Rush’s behaviour during the rehearsals and production of the play. This issue was addressed in [332], [494] to [501] and [527] of the liability judgment. The relevant parts of the media interviews are referred to and extracted at [272] to [277] of the liability judgment.

126    Nationwide and Mr Moran’s criticism of this finding or reasoning is that, as a young aspiring actor, the idea that Ms Norvill could have uttered anything other than praise for Mr Rush in the most glowing terms was “almost fanciful”.

127    The following points should be made concerning that submission.

128    First, the finding and reasoning concerning the media interviews was only one very small part of the extensive and detailed consideration of Ms Norvill’s credibility as a witness and the reliability of her evidence. It was by no means a major or important consideration.

129    Second, Ms Norvill was cross-examined about the positive statements in the interviews. Her evidence in relation to that issue is set out at [496] and [499] of the liability judgment. It was accepted, at [497], that it could not reasonably be expected that Ms Norvill would have told the journalist in the first interview about Mr Rush’s behaviour. It was reasoned, however, that that did not entirely explain why she made such positive statements about Mr Rush and the rehearsals. That finding and reasoning must also be considered in the context of Ms Norvill’s evidence in relation to the effect that she claimed Mr Rush’s behaviour had had on her. Similarly, in relation to the second interview, it was reasoned (at [500] of the liability judgment) that Ms Norvill’s explanation for why she made the positive statements about working with Mr Rush to the journalist was not persuasive and that, “[w]hile 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”.

130    Third, it may be accepted that not everyone would necessarily agree with this reasoning concerning the media interviews, particularly if that reasoning is considered in isolation and not in context. A trial judge, however, has the distinct advantage of seeing and hearing all of the evidence unfold at the trial. It is necessary to consider this very small part of the evidence in the context of the evidence as a whole. Equally, it is necessary to consider this very small part of the reasoning concerning the reliability of Ms Norvill’s evidence in the context of the overall assessment of Ms Norvill’s credibility as a witness and the reliability of her evidence.

131    Fourth, the fact that others may disagree with this aspect of the reasoning does not make it fanciful. More significantly, it does not mean that it would or might convey the appearance of prejudgment or partiality. A fair-minded lay observer who read the whole of the judgment would see this small part of the overall reasoning for what it was and would not see any indication of prejudgment or partiality in it.

Cumulative consideration of the grounds

132    None of the individual grounds relied on by Nationwide and Mr Moran provide any basis for concluding that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the outstanding issue that I am required to decide concerning injunctive relief. Nor is there any basis for concluding that a fair-minded lay observer might reasonably have such a reaction or apprehension considering all the grounds cumulatively or in combination. The accumulation of individually unmeritorious complaints does not assist Nationwide and Mr Moran.

133    That is all the more so given that the fair-minded lay observer would consider all the grounds in the context of the relevant interlocutory judgments and the liability judgment read as a whole. A fair reading of the relevant judgments as a whole certainly reveals that a number of adverse findings were ultimately made against Nationwide and Mr Moran, and a view of the evidence was taken which was ultimately unfavourable to them. That alone, however, is an insufficient basis to support or establish the existence or manifestation of an objective apprehension of bias: Royal Guardian at [234]; Knaggs at [95]; SZCOS at [36]; Spalla at [14]; DOQ17 at [33]; Hamod at [20].

CONCLUSION

134    It was for the above reasons that I declined to recuse myself upon Nationwide and Mr Moran’s application on 23 May 2019. There was, in short, no basis for the contention that a fair-minded lay observer might reasonably have apprehended that I might not have brought an impartial mind to the resolution of the outstanding issue concerning injunctive relief. It was for that reason that I dismissed the recusal application and continued to hear the application concerning injunctive relief. The outcome of that application is the subject of a separate judgment.

Associate:

Dated:    28 August 2019