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The Sydney newspapers parent company is appealing against the federal courts ruling that it defamed Rush, and the decision to award the actor $2.9m
The Daily Telegraph has dramatically dropped its claim that the judge who awarded Geoffrey Rush $2.9m in damages after a series of defamatory articles about the Oscar-winning actor displayed an attitude of bias during the trial.
On Monday the Daily Telegraph through its parent company, Nationwide News, began its appeal against federal court justice Michael Wigneys ruling that the Rupert Murdoch-owned newspaper had defamed Rush by alleging he engaged in inappropriate behaviour during a Sydney Theatre Company production of King Lear in 2015.
Rush is due to receive $2.9m, including $1.97m in special damages based on past and future lost earnings the largest defamation payout to a single person in Australia.
The Daily Telegraph is appealing against the decision, and as late as Monday morning had planned to argue that Wigneys conduct in the case gave rise to an apprehension of bias, citing examples of the tone used by the judge throughout the trial and his assessment of the credibility of the newspapers witnesses.
But on Monday afternoon the Daily Telegraphs barrister, Tom Blackburn SC, told the court the newspaper would no longer press the claim. Blackburn said he saw no utility in the circumstances in pressing the apprehended bias claim because the Daily Telegraph was seeking a retrial on other grounds.
The Daily Telegraph is also arguing the judge erred both in finding that the Daily Telegraphs star witness, Eryn Jean Norvill, gave unreliable evidence and in awarding special damages to Rush based on an inference the actor would no longer be able to work.
It has argued for a retrial if the first challenge is upheld, and Blackburn said if they succeeded in those circumstances we see no need to press [the apprehended bias] claim.
Rushs barrister, Bret Walker SC, slammed the sudden change of heart, saying the Daily Telegraphs very grave allegation of bias had been a slur both on the trial judge and on the cogency of the vindication our client has enjoyed.
Lawyers for the Daily Telegraph have called the decision to award Geoffrey Rush $2.9m in damages after a series of defamatory articles about the Oscar-winning actor extraordinary and absurd, and based on uncertain inferences from inexact proofs.
At the opening of the two-day appeal before three judges in the federal court in Sydney on Monday, Blackburn argued the court should overturn Wigneys finding that the newspapers key witness, the actor Eryn-Jean Norvill,was prone to exaggeration and embellishment.
During the trial Norvill, who made the initial complaint about the actor to the STC, told the court that Rush one of Australias best-known actors engaged daily in a pattern of sexual harassment including sexual innuendo and groping gestures that made her feel belittled, frightened and trapped.
But Wigney found Norvills evidence was not only uncorroborated but contradicted by other witnesses. He said in his judgment he was not ultimately persuaded that Ms Norvill was an entirely credible witness.
On Monday, Blackburn argued Wigneys findings about Norvill were glaringly improbable.
He raised five examples of Wigneys judgment about Norvill, including his finding that the actor did not need to make highly complimentary comments about Rush during an interview with the Sydney Morning Herald to promote the play in 2015.
These were press conferences in support of the Sydney Theatre Companys production of King Lear, this is not mainstream entertainment, this is not a Harry Potter movie, Blackburn said.
It is, if not niche entertainment, its certainly not mainstream entertainment.
What is Ms Norvill supposed to do? Is she supposed to be guarded, or heroically pure at a press conference? Mr Rush was obviously, apart from being a distinguished actor, obviously a great drawcard for this production, I mean she had to talk him up.
Blackburn told the court the decision to award special damages in favour of Rush was extraordinary and absurd because while the actor had delivered his lines over three days in the witness box, he had never told the court he had not received offers to work.
Heres one thing he didnt say, that is, I am unable to work because of these articles. He just didnt say it, Blackburn said.
Neither did he say I have received no or fewer offers because of these articles. His American agent, Fred Specktor, did not say he has received no or fewer offers because of these articles, his Australian agent wasnt called, no one gave that evidence.
Blackburn said the failure to ask Rush that question was not explicable on any other conceivable basis other than that it was a deliberate decision.
He doesnt clearly come out and say I have received no offers of work, he said.
We say it is very strange for the court to be having to draw inferences about his state of mind. On ordinary principles the court should have inferred that it wasnt asked [because] counsel feared to ask it. The fear being the answer might be unfavourable.