On Thursday, a federal court found that Sydney’s Daily Telegraph had defamed Geoffrey Rush by alleging he “engaged in inappropriate behaviour” towards an actor, later revealed to be Eryn Jean Norvill, during a theatre production of King Lear. Here are the reasons judge Michael Wigney cited behind his decision and some key moments from the judgment:
On Eryn Jean Norvill:
Wigney said Norvill presented as “intelligent, articulate and confident” but he was nonetheless critical of her as a witness.
“Putting Ms Norvill’s demeanour to one side, however, there are a number of aspects to the evidence which raise significant issues about her credibility as a witness and the reliability of the evidence she gave concerning the disputed events. Those issues generally relate to the consistency or inconsistency of her version or account of the relevant events over time, and the consistency or inconsistency of her evidence with more contemporaneous statements or objective indications of the nature of her relationship with Mr Rush at the relevant time. There were also some indications in Ms Norvill’s evidence that she was a witness who was, at times, prone to embellishment or exaggeration.”
On Geoffrey Rush
Wigney described Rush as an “impressive witness” even though he tended to give “long-winded and wordy answers”.
“On balance, however, I do not consider that this reflected adversely on his credibility or the reliability of his evidence. That is because he did not appear to be giving the long-winded answers to avoid answering the question. Rather, he presented as a highly articulate and analytical person who was, by his very nature, prone to giving such complex and wordy responses. Also, when closely analysed, most of his long-winded answers related to the theatre and the play in question, those being matters about which he was clearly passionate. His answer to questions directed to the disputed events were, for the most part, more concise and responsive.”
On director Neil Armfield
“Mr Armfield was an impressive witness. There was no issue about his credibility as a witness or the reliability of his evidence generally. Nationwide and [Daily Telegraph journalist Jonathan] Moran did not suggest that any of his evidence should not be accepted. Despite his obviously close friendship with Mr Rush, I consider that he gave forthright, honest and reliable evidence about the facts and circumstances relevant to the allegations.”
On co-stars Helen Buday and Robyn Nevin
Wigney said Buday, an actress and longtime friend of Rush who broke into song on the witness stand, was an “unusual witness” but her evidence was “compelling”.
“… Ms Buday gave clear, direct and forceful answers to the questions that were put to her in relation to the events and circumstances in question. I can see no reason why her evidence should not be accepted as being reliable.”
Theatre veteran Robyn Nevin told the court she had a “tearful” conversation with Norvill in which Norvill is said to have referred to “trouble” with Rush, but denied “anything sexual” had been discussed. Wigney also described her as “an impressive witness”.
“My assessment was that Ms Nevin was a frank, forthright and honest witness, and that her evidence was reliable.”
On co-star Mark Leonard Winter
Winter told the court Rush had “cupped” Norvill’s breast on stage on one occasion and made a “boob-squeezing gesture” over her body during rehearsal.
Wigney’s view was that “the rather matter-of-fact way in which Mr Winter gave his evidence of those incidents, and the inconsistency between Mr Winter’s description of the incident and his otherwise positive views about how Mr Rush ‘led the company’, cast some considerable doubt on the reliability of Mr Winter’s evidence generally.”
On a generational gap
“[Norvill suggested that] in respect of Ms Nevin, that ‘[w]e’re from different generations; maybe we have different ideas about what is culturally appropriate in a workplace’. The suggestion appeared to be that Ms Nevin, Ms Buday and Mr Armfield witnessed the alleged behaviour of Mr Rush, but did not appreciate that it was culturally inappropriate because of their age.
“That submission is rejected … No such suggestion was put to Ms Nevin, Ms Buday or Mr Armfield in cross-examination. Even putting that to one side, each of them was a highly-qualified, experienced, accomplished and well-respected, if not revered, figure in theatre circles … The suggestion that, by reason of their age or otherwise, any of them may not have considered the conduct to be culturally inappropriate is untenable.”
Wigney went on to say that Norvill’s “apparent willingness to cast such aspersions” on her colleagues “did not reflect well on her credibility and reliability as a witness. It displayed a propensity to exaggerate and embellish.”
On playfulness
Wigney noted that the evidence suggested Rush was “at times ebullient, enthusiastic and playful during the rehearsals” but that it was “appreciated and seen by the cast and crew as a positive thing”.
“The evidence as a whole does not support the allegation, and Ms Norvill’s evidence, that Mr Rush’s jokes or playfulness was directed at Ms Norvill, or was of a lewd, sexual or sexist nature, or could be characterised as amounting to sexual harassment as Ms Norvill effectively asserted. Indeed, the evidence as a whole is quite to the contrary.”
On Norvill’s press interviews
Wigney said positive statements made by Norvill in press interviews during the rehearsal period were “entirely inconsistent” with the evidence she gave in court.
“It could be accepted that, if the events that Ms Norvill referred to in her evidence did in fact occur in the rehearsal room, she could not be reasonably expected to have told a journalist about that behaviour in the course of a promotional interview, particularly one conducted together with Mr Rush. That does not, however, entirely explain why Ms Norvill made such positive statements about both Mr Rush and the rehearsals.”
Wigney noted an interview she gave to the Telegraph in 2015 where she described Rush as “just forever playful” and “so generous, he’s very cheeky which is perfect for me …”
“In all the circumstances, Ms Norvill’s contemporaneous statements to the media about her positive experience working with Mr Rush during the rehearsal period, and the rather unsatisfactory explanation given by Ms Norvill in relation to them, count against the reliability and credibility of Ms Norvill’s evidence concerning the rehearsals.”
On Rush’s closeness with the cast
Wigney said it was “difficult to accept” Norvill’s suggestion that Neven, Buday and Armfield would not have known what to do in the face of the alleged behaviour, or were for some reason frightened to do anything about it.
“In the case of Ms Nevin and Ms Buday, even putting their impeccable character and integrity to one side, both of them gave every impression of being an independent, strong-willed woman who was not be to reckoned with.
“As for Mr Armfield, he had worked with Mr Rush for many years. Mr Rush described him as his ‘artistic brother’. They were obviously close. The suggestion that Mr Armfield might have been frightened of Mr Rush, or otherwise unable or unwilling to confront him if he had engaged in the sort of behaviour described by Ms Norvill, is fanciful.”
On whether calling someone “yummy” and “scrumptious” is inappropriate behaviour
Wigney noted that Rush had denied allegations from Norvill that he had referred to her as “scrumptious” and “yummy” and that he had made lewd gestures towards her.
“That is significant. It may be accepted that in some contexts, and in some circumstances, it may be inappropriate for a man to refer to a woman’s appearance in a workplace setting as ‘scrumptious’ or ‘yummy’. However context is everything. I do not accept that it is invariably or necessarily inappropriate, let alone ‘scandalously inappropriate’ to use such words in a workplace setting when talking to a woman.
“Nor do I accept that it would necessarily constitute ‘inappropriate behaviour of a sexual nature’. Had Mr Rush used those words while making any of the gestures referred to by Ms Norvill in her evidence, it would undoubtedly have been ‘scandalously inappropriate’ and would clearly have constituted ‘inappropriate behaviour of a sexual nature’. Mr Rush denied, however, using the words in that context.”
On the allegation that Rush stroked Norvill’s breast in the final scene of the play
“I consider the allegation and Ms Novill’s evidence concerning it to be somewhat implausible and improbable. Mr Rush was a dedicated actor and consummate professional. The STC’s production of King Lear, under the direction of Mr Rush’s long-term friend and artistic colleague, Mr Armfield, was a serious and significant artistic endeavour for Mr Rush.
“He saw Act V Scene III as proving the biggest challenge in the play … He and Ms Norvill, as the grieving Lear and the dead Cordelia respectively, were the focus and centre of attention for the audience during the scene. Aside from Mr Rush, several members of the cast were standing nearby on stage and were apparently observing Mr Rush’s actions during the scene. The preview performance in which the alleged breast-touching was said to have occurred was attended by over 900 patrons in a theatre in which many patrons would undoubtedly have had a ‘birds-eye view’ of the stage.
“The suggestion that Mr Rush would intentionally stroke or cup Ms Norvill’s breast during this scene in a preview performance is highly implausible.”
On the Daily Telegraph front page
“The front page is particularly sensational and unfair. It deployed a head and shoulders photograph of Mr Rush taken for the purposes of promoting King Lear. He is made up as the ‘deranged’ Lear, complete with stark white make-up and a garland of flowers or weeds.
“The photograph is a striking image. It occupies almost the entire front page, along with the very large headline: “KING LEER”. That pun clearly conveyed, and it may be inferred was clearly intended to convey, that Mr Rush had been involved in some sort of sexually inappropriate behaviour. It was, and it may readily be inferred was intended to be, a direct and full-frontal attack on Mr Rush’s reputation. That is so particularly given that this publication occurred in the midst of the emerging #MeToo movement.
“It is difficult to see how the front page image could possibly be considered to be justifiable in light of the relative paucity of the information apparent from the content of the articles.”