The Geoffrey Rush v Nationwide News saga rumbles on like a Shakespearean tragedy. Like any good play, each dramatic climax is merely a scene-setter for the next act. And, though there is a ways to go yet, now is a good moment for a mid-season review.
The latest plot developments came close together. First, The Daily Telegraph launched its expected appeal against the first instance judgment of Justice Wigney, unveiling a surprise twist with its appeal grounds; the Witness X was finally revealed to be actor Yael Stone.
It’s been a year and a half since the Telegraph first launched its front page assault on Rush, labelling him “King Leer” and accusing him of serial sexual harassment in the theatre against an unnamed actress, later revealed as his co-star Eryn-Jean Norvill.
The inevitable defamation suit made its way to Justice Michael Wigney, who a month ago dumped on the Tele for its disgraceful behaviour then extolled Rush’s integrity and argued Norvill’s incredibility. He awarded Rush general damages of $850,000, with an anticipated much bigger number for economic “special” damages to follow.
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The appeal is unabashedly sensational, in true Telegraph style. Discarding the available low-key options like arguing the judge got the law wrong, it went for Wigney’s conduct of the case instead. The appeal will argue, among other things, that Wigney’s conduct “gave rise to an apprehension of bias”.
“Bias” is an incredibly incendiary word for lawyers to say, especially when directed at a judge. Especially when that judge is still to hear and decide on exactly how much in damages your client is going to be ordered to pay.
Not that the Telegraph is saying Wigney was actually biased against it; they’re careful to emphasise that. The law recognises two types of judicial bias: actual and “apprehended”. The latter reflects the dictum that justice must not just be done, but be seen to be done as well. If a judge’s handling of a case, or other conduct, could conceivably risk reasonable people apprehending that he or she might be biased, then that’s enough to undermine everyone’s trust in the process and can ground a successful appeal.
For the same reason, the Telegraph has asked Wigney to stand aside from dealing with its pending application to allow it to report the details of Witness X’s allegations against Rush. That particular subplot lost a lot of its suspense factor when Yael Stone spoke to 7.30. Stone went into great detail on allegations of misconduct against Rush, which he denies (and says some of which were taken out of context).
In its appeal, the Telegraph pointed to 16 examples of rulings made by Wigney during the case that it says create the apprehension that he was biased in Rush’s favour. These included his decision to keep Stone’s evidence out of the case (the Telegraph had wanted it in as “propensity” evidence), a bunch of derogatory comments about the Telegraph’s journalistic standards, and his findings on the credit of witnesses.
The bias call is a long shot. If it goes anywhere, that will rest on the judge’s apparent enthusiastic willingness to find the allegations against Rush too incredible to believe, given his standing and eminence in the industry.
So why bother appealing when your best argument is, well, courageous? The Telegraph is in the poo for millions already, why add more to the bill on an outside chance?
There are reasons to appeal, aside from wanting to reverse a loss. Rush is the winner for now, but the stakes in litigation remain high for everyone to the bitter end; a big victory can easily turn into expensive defeat.
It’s possible we’re witnessing a purely tactical ploy. The Telegraph’s pockets are deep. Rush is still facing the decision on special damages and an inevitable fight over costs; the Witness X suppression argument; the appeal; a possible further attempt to appeal to the High Court; and, hypothetically if the miscarriage argument wins, even a retrial of the whole case with a fresh judge.
For Rush, that looks like hundreds of thousands of more dollars on lawyers and a few extra years of being filmed walking into and out of court. Not an attractive prospect, no matter how it all ends.
Suffice it to say that both parties to this mess have excellent reasons to get in a room and settle their case. If the Telegraph is looking for ways to help motivate Rush in that direction, then it’s going the right way about it.
Everyone keeps saying that there have been no winners in this matter. That’s because it originated in foolishness: the disregard of a newspaper for the most basic principles of what should be published. The judge got that right. Whether his vindication of Rush was also right will never be fully known and, consequently, the whole thing has been a sad waste. Nothing, as King Lear said, will come of nothing.