The Daily Telegraph's Jonathon Moran arrives at the Federal Court for the appeal (Image: AAP/Bianca De Marchi)

This is act 10 in Inq’s series on the media trial of Geoffrey Rush. Read the full series here.

“An apprehension of bias”

Less than a month after The Daily Telegraph was excoriated for publishing a “recklessly irresponsible piece of sensationalist journalism” regarding allegations against Geoffrey Rush, the paper launched a full legal appeal against the judgment based on a simple — but in many ways extraordinary — argument. 

It claimed that Justice Michael Wigney had created “an apprehension of bias” in his “tone” during the trials, including when he refused, late in proceedings, to hear new evidence from “Witness X”, later revealed to be Australian actress Yael Stone. 

“The evidence was so persuasive, or potentially persuasive and serious, that it was an error of discretion for his honour not to act on it,” Tom Blackburn, the Telegraph’s barrister, told a panel of three Federal Court appeals judges which included Justice Jacquelline Gleeson, the first female judge to assess the case so far.

Blackburn argued that Justice Wigney had been wrong to label actress Eryn Jean Norvill an “unreliable witness” for talking about Rush positively in a story promoting their work on King Lear — “Ms Norvill wasn’t giving evidence on oath in a court of law, your Honours. Ms Norvill was giving evidence at a press conference, or at a press interview … to support the Sydney Theatre Company’s production of King Lear, and she was giving evidence about the drawcard, Mr Rush.” 

The bias claim was a bold strategy by News Corp’s lawyers, designed to resurrect the paper’s reputation and save the company from a record defamation payout. 

Apprehended bias, Justice Richard White told the court, is “a very serious submission to make”, to which Blackburn responded: “It is a very serious matter, your honour, I don’t treat it other than serious.”

But just minutes after the first hearing in the appeal began, the Telegraph dropped another bombshell.

Blackburn emerged from a 10-minute adjournment to reveal that the paper would be abandoning its “very serious” bias claim.

The shock announcement prompted disquiet among the judges, with notes being passed across the bench, and Rush’s barrister Bret Walker SC saying that a “slur” has been committed against Justice Wigney. 

“It is a very serious step that has occurred,” he said.

Instead, News Corp focused on Justice Wigney’s findings that the stories implied Rush was a “pervert” and that Norvill was an unreliable witness. 

Their appeal was centered around 13 claims, including that Wigney erred in finding that the defamatory articles painted Rush as a “pervert”; finding Norvill’s evidence unreliable; not allowing Stone’s testimony; and accepting evidence about Rush’s offers and salaries from two experts.

It also argued that the damages were excessive, with little proof Rush lost work as a result of the emotional impact of the stories. They claimed the payout was based on “cobbled together” findings of Rush’s inability to work. 

Rush and his wife Jane Menelaus attended the appeal hearings, as did Telegraph entertainment reporter Jonathon Moran, who wrote the articles that ignited the case. It was the first court appearance for the reporter, whose stories Justice Wigney had so viciously torn apart months earlier. Now, free from the risk of being called as a surprise witness, he sat in the courtroom alongside News Corp’s in-house lawyer Michael Cameron. 

Critically, during the appeal hearings, Justice Gleeson asked Blackburn whether any part of Wigney’s judgment had dealt with the issue of imbalance of power in the relationship between Rush and Norvill. 

“No,” Blackburn responded. “It’s simply not apparent anywhere in the judgment that he actually took any of those matters into account.” 

Walker argued that while they were at different stages of their career, the fact that Norvill had invited Rush to her birthday party and sent playful texts to Rush suggested she had some agency in the relationship. 

“It certainly is not indicative of, as it were, somebody under the thumb of another, somebody in fear, lest they were to fend another,” Walker said.

* * *

When the appeal hearings ended in November 2019 there was no sign as to when a final judgment would be handed down. Weeks turned into months, and by March 2020 the trial had well and truly faded in the minds of a population caught up in a global pandemic. 

When the judgment finally came on Thursday, July 2, it was delivered into a very different world to the one that had watched the case unfold.

Gone were the crowded courtrooms and media scrums. Instead, the 169-page judgment was quietly dropped into the email inboxes of journalists, lawyers and anybody interested in the case.

The full bench of the Full Court — Justices Jacqueline Gleeson, Richard White and Michael Wheelahan — rejected News Corp’s appeal on all grounds, and upheld the record $2.9 million payout. In many ways the three judges went further than anticipated in upholding Wigney’s judgment.

The payout was “not manifestly excessive”, they said — in fact, damages could have been higher. Allowing Yael Stone’s evidence would have unreasonably extended the trial, and evidence didn’t show Rush intentionally touched Norvill’s breast.

On the issue that Wigney had erred in finding Norvill had given unreliable evidence, they said that — while Wigney had perhaps given too much weight to comments made in the promotional interviews — there was a “good deal of other evidence” that indicated a positive relationship between the pair, such as testimony from theatre director Neil Armfield that they were getting along “wonderfully” and they had a “deep friendship”. 

The fact that Norvill and Rush had had dinner and seen a play together was a point of contention: “It seems implausible that Ms Norvill would have wished to be in the company of a person who made her feel that way longer than was necessary, had in fact the conduct she alleged been occurring.” 

Similarly, the text Rush had sent Norvill — “I was thinking of you (as I do more than is socially appropriate)” accompanied by a winking emoji with its tongue hanging out — would have been inappropriate, the court found, had the court not known about the history of the pair’s text messages.

And on the critical question of whether Wigney had overlooked the imbalance of power that existed between Norvill and Rush, the judges said:

“We accept that there was a power imbalance in the relationship between Mr Rush and Ms Norvill. It is also appropriate to take into account the difficulties commonly experienced by those who have suffered sexual harassment in reporting the conduct.”

“Those difficulties can be of diverse kinds and are sometimes found in the conflicting emotions, loyalties and interests of the complainant. However, even having regard to those matters, it is difficult to understand that they may explain the very affectionate (if not effusive) terms of Ms Norvill’s response to the email.”

“Like the Judge, we consider that Ms Norvill’s contemporaneous conduct did give cause to question the reliability of her account of the incidents on which the appellants rely.”

Rush, who had reportedly tried to settle the case for $50,000 and was now walking away with almost $3 million, was quiet after the judgement. Eryn Jean Norvill was also silent; her lawyer Leon Zwier declined to comment.

Ben English, the editor of The Daily Telegraph, issued a public statement to the media shortly after the verdict.

He said that while the paper respected the findings of the court, the Rush case had exposed the inadequacies of Australia’s defamation laws and heightened the need for “urgent legislative reform to enable public debate and to encourage women to come forward with their concerns”.

“In that context we are very disappointed that the appellate court did not reverse Justice Wigneys findings as to the credibility of Eryn Jean Norvill or reverse His Honour’s decision to exclude the testimony of Yael Stone,” he said.

“We support both women in their decision to share their complaints. We will continue to report on issues such as these which are of great concern to the Australian public. As stated by High Court Chief Justice Susan Kiefel last week, there is no place for sexual harassment in any workplace.”

In the two years since Rush’s trial, High Court judge Dyson Heydon has been one of the only high profile men to be publicly accused of sexual harassment.

The Telegraph’s “reckless” reporting, as Wigney put it, has been accused of stalling the Me Too movement in Australia.

Both Rush and Norvill continue their acting careers.

And as for the Telegraph, it’s unclear whether the newspaper will make one last chance of appealing to the High Court.