The judge hearing the Geoffrey Rush v The Daily Telegraph defamation trial has raised the prospect of the case being delayed six months because of a late attempt by the newspaper to introduce a mystery witness.
Justice Michael Wigney made his displeasure with the Telegraph clear as he heard argument whether it should be allowed to amend its “truth” defence based on an 85-page affidavit from a woman.
“Your client chose to publish,” he said to Tom Blackburn, SC.
“Maybe they should have made some more inquiries before they published.”
The court heard that “Ms X” has made allegations which would help the paper defend imputations that it alleged Mr Rush behaved as a pervert and “engaged in scandalously inappropriate behaviour in the theatre”.
Justice Wigney noted that “the case would be all over but for this” and that if he allowed it into evidence he would have to adjourn the case until April.
He said Ms X, whose name he has suppressed, could not give evidence before the end of February and he had judicial commitments until April.
“You have effectively run the whole case … to say it’s less than desirable is the biggest understatement I have heard,” he said.
Mr Rush is suing News Corp, publisher of The Daily Telegraph, over a poster and two articles in late 2017 that said the Sydney Theatre Company had received a complaint accusing him of “inappropriate behaviour” towards a cast member, who was later identified as Eryn Jean Norvill. Ms Norvill played Cordelia, the daughter of Mr Rush’s titular character in a 2015-16 production of King Lear.
Both Mr Rush and Ms Norvill were in court on Friday to hear the argument around Ms X’s statement.
When Mr Blackburn suggested “nothing in this trial has been wasted”, Justice Wigney bristled.
“What about Mr Rush’s evidence? He was in the witness box for three days…he would have to wait six months for these new matters to be determined… Mr Rush would have to be recalled among other things …
“From the very first case-management hearing, it was made abundantly clear that Mr Rush was anxious to have this case heard at the very earliest opportunity.”
The judge said the delay would likely have an “egregious effect” on Mr Rush’s health and finances.
“That, to be blunt, is what concerns me.”
Mr Blackburn submitted that Ms X’s evidence went to “the heart of the case” and to deny its inclusion would cause a “loss of public confidence in the legal system”.
“The public will know there is an application, which goes to the truth or falsity, and the public will know those matters were never ventilated.”
Kieran Smark, SC, for Mr Rush said the Telegraph was “quick to publish but slow to defend”.
He said “allowing a fresh case to be brought would not sit well with generalised notions of justice”.
“They didn’t have a story when they first published in relation to Ms Norvill or Ms X.”
Mr Smark said the Telegraph had “pestered Ms X since shortly after the commencement of the proceedings”.
Justice Wigney said the case “involves not just money, but people and lives – and there are no winners”.
He reserved his decision on the affidavit.
The case resumes on Monday.