FEDERAL COURT OF AUSTRALIA

Nationwide News Pty Limited v Rush [2020] FCAFC 115

SUMMARY

In accordance with the practice of the Federal Court in cases of public interest, importance or
complexity, the following summary has been prepared to accompany the orders made today.
This summary is intended to assist in understanding the outcome of this proceeding and is not
a complete statement of the conclusions reached by the Court. The only authoritative statement
of the Court’s reasons is that contained in the published reasons for judgment which will be
available on the internet at the Court’s website. This summary is also available there.

The Full Court has dismissed an appeal from the judgment of a single judge of the Court,
Justice Wigney, (Judge), who found the appellants (Nationwide News) liable to pay damages
and interest totalling $2,872,753.10 for defaming the respondent (Mr Rush) in three
publications: two editions of The Daily Telegraph newspaper, published on 30 November 2017
and 1 December 2017, and a billboard poster. The publications related to Mr Rush’s role as
King Lear in the Sydney Theatre Company’s production of King Lear in December 2015 and
January 2016.

The damages and interest comprised:

 non-economic loss including aggravated damages - $850,000;

 past economic loss including pre judgment interest - $1,060,773;

 future economic loss - $919,678; and

 pre judgment interest on the non-economic loss - $42,302.10.

During the appeal hearing, Nationwide News abandoned grounds of appeal that the conduct of
the Judge created a reasonable apprehension of bias and that Nationwide News were denied
procedural fairness.

All of Nationwide News’ remaining grounds of appeal were rejected by the Full Court.

The Judge had found that the publications conveyed several defamatory imputations. On the
appeal, only one of those findings was challenged: the finding that the two newspaper
publications conveyed the imputation that Mr Rush is a pervert. The Full Court agreed with the
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Judge that the ordinary reasonable reader is likely to consider a person who engaged in the
conduct conveyed by the publications to be a “pervert”, particularly in so far as it concerned
behaving as a sexual predator, and a man’s use of authority or stature in the workplace to obtain
sexual gratification by inappropriately touching a non-consenting co-worker.

Nationwide News’ only substantive defence at the trial was the claim that all but one of the
imputations alleged by Mr Rush were substantially true. The Judge found that Nationwide
News had not proved on the balance of probabilities the substantial truth of any of the
imputations conveyed by its publications and, accordingly, the defence of substantial truth
failed.

Nationwide News’ defence of justification related to Mr Rush’s behaviour towards Erin Jean
Norvill, an actor who played the role of Cordelia in the STC production of King Lear. The
principal evidence on which Nationwide News relied was the evidence of Ms Norvill.
Nationwide News challenged the Judge’s conclusion that Ms Norvill was an unreliable witness.
However, it did not challenge the findings that Mr Rush was a credible witness; and that
evidence given by Neil Armfield AO, who directed King Lear and Robyn Nevin AM and Helen
Buday, other cast members in King Lear, was honest and reliable.

The Full Court concluded that the Judge’s assessment of Ms Norvill was based on findings that
are not glaringly improbable, contrary to compelling inferences or inconsistent with
incontrovertible facts or other uncontested testimony. It was also based on his Honour’s
assessment of the credibility of the various witnesses who gave evidence relevant to the defence
of justification. The Full Court accepted Nationwide News’ argument that the Judge should not
have attached significance to positive statements made by Ms Norvill about Mr Rush in
promotional interviews for King Lear. However, having regard to his Honour’s other reasons,
the Full Court did not consider that his Honour erred in his ultimate conclusion concerning Ms
Norvill’s credit. The Full Court did not accept that the Judge had overlooked difficulties which
Ms Norvill may have experienced in giving evidence as a person complaining of sexual assault
and sexual harassment.

The Full Court found that the Judge’s award of $850,000 for non-economic loss was
appropriately high but not manifestly excessive having regard to the extremely serious nature
of the imputations that were conveyed by the publications, the extent of publication, the hurt
and distress caused to Mr Rush by the publications, the conduct of Nationwide News that
aggravated the harm caused to Mr Rush and the harm caused to Mr Rush’s reputation.
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Nationwide News did not dispute the Judge’s findings as to their conduct warranting an award
of aggravated damages except for his Honour’s finding that Nationwide News’ pleading of
certain allegations based on a business record of the STC and its reporting of an application to
strike out the pleading was unjustified. The Full Court found that the Judge did not err in
making those findings.

Concerning damages for economic loss, the Full Court rejected each of Nationwide News’s
contentions, namely, that:

 Mr Rush was not entitled to damages on the basis of his inability to work following the
defamatory publications because he had not given adequate notice of that case;

 The Judge should have ruled evidence given by Fred Spector and Fred Schepisi to be
inadmissible.

 The Judge erred in following the decision of the Victorian Court of Appeal in Wilson v
Bauer Media concerning the proper construction of s 35 of the Defamation Act; and

 The primary judge erred in awarding damages for future economic loss for a period of
two years after judgment on a sliding scale.

JUSTICES WHITE, GLEESON AND WHEELAHAN

2 JULY 2020