A judge has struck out large parts of The Daily Telegraph’s defence in the defamation case brought by film star Geoffrey Rush, saying it lacked crucial details and could not prove the allegation that Rush had “inappropriately touched” a coworker during a Sydney Theatre Company (STC) production of King Lear.
The judge also dismissed a subpoena to the STC from the newspaper, labelling it a “fishing expedition” to try and find material to support its case.
Rush is suing the publishers of The Daily Telegraph and journalist Jonathon Moran over two articles published in late November 2017 alleging a complaint had been made about Rush’s “inappropriate behaviour” towards a woman cast member during the 2015-16 production.
Rush claims the newspaper coverage suggested, among other things, that he is a “pervert”, that he acted as a “sexual predator” on the set of King Lear, and that he engaged in “scandalously inappropriate behaviour of a sexual nature” in the theatre.
In its defence, the newspaper argued that Rush had touched a woman actor in a way that made her feel “uncomfortable” in a January 2016 production of the play, as Rush, playing King Lear, carried her across the stage while “she simulated the lifeless body of Cordelia”.
The defence alleged that the touching continued over the next four days after the woman told Rush to “stop doing it”.
In the Federal Court on Tuesday morning, Justice Michael Wigney said the defence of truth offered by the newspaper was “inadequate and insufficient”.
“What part of Mr Rush relevantly touched the actress?” Wigney asked. “Was it one or both of his hands or some other part of his body? And what part of the actress’ body was touched? What was the nature and duration of the touch? If Mr Rush was required to carry the actress, he would obviously have to have some contact with parts of the actress’ body.
“What exactly distinguished the alleged touch from the contact that must otherwise have been made between Mr Rush and the actress during the scene? How and why did the alleged touch make the actress feel uncomfortable? Was the discomfort physical or emotional?”
Wigney also struck out part of the defence based on qualified privilege (a legal argument in which The Daily Telegraph and Moran have to prove their publication of the articles was reasonable under the circumstances).
He axed three paragraphs from the qualified privilege defence, saying they were “ambiguous and likely to cause prejudice or delay”, but allowed the rest.
The Daily Telegraph’s defence was temporarily suppressed from the public as Rush’s lawyers argued it would allow media to spread further allegations against their client with impunity.
But at the last hearing, Wigney declined to make a confidentiality order on the defence, parts of which have now been struck out.
He noted on Tuesday that the principle of open justice overrode Rush’s embarrassment at further allegations being aired.
“It is the price of open justice that allegations about individuals are made in open court,” Wigney said.
The matter returns to court on March 27 for a case management hearing.