Rupert Murdoch's The Daily Telegraph has launched an appeal against a judgment awarding actor Geoffrey Rush $850,000 in damages for defamation, as the Sydney newspaper braces for a second damages bill for millions of dollars in financial loss.
Nationwide News, the publisher of the Telegraph, filed a notice of appeal in the Federal Court on May 1.
The publisher says the trial miscarried because the conduct of the proceedings by Federal Court Justice Michael Wigney "gave rise to an apprehension of bias".
It does not accuse Justice Wigney of actual bias, but says the way he conducted the hearings created an appearance that he was biased.
Nationwide News also says it was denied procedural fairness and the amount of damages awarded by Justice Wigney was "excessive".
The publisher sets out a range of findings or rulings made by Justice Wigney that it says supports the allegation of apprehended bias, including that he refused to allow a woman dubbed Witness X to give evidence in support of its defence.
It also points to his findings about the credit of witnesses on either side of the case.
In a scathing judgment on April 11, Justice Wigney said the Telegraph's reports in 2017 accusing Mr Rush of "inappropriate behaviour" towards an unnamed co-star - the first of which was headlined "King Leer" - were "extravagant, excessive and sensationalist".
The co-star was later revealed to be Eryn Jean Norvill, who appeared opposite Mr Rush in the Sydney Theatre Company's 2015-16 production of King Lear.
"This was, in all the circumstances, a recklessly irresponsible piece of sensationalist journalism of the worst kind. The very worst kind," Justice Wigney said in a judgment summary read in court.
Ms Norvill did not co-operate with the Telegraph before the stories were published and only agreed at a late stage to give evidence for the publisher in court.
She gave evidence during the trial that Mr Rush had sexually harassed her, including by stroking down the side of her right breast to her hip during a preview performance of King Lear in late 2015. She said she "believed he had done it deliberately".
Mr Rush vehemently denied the claims and Justice Wigney accepted his evidence.
"How could Mr Rush maintain the focus and state of mind which he considered necessary ... and yet engage in such a base and crude action as intentionally stroking Ms Norvill's breast?" Justice Wigney said in his judgment.
In its notice of appeal, Nationwide News says Justice Wigney's finding that Ms Norvill was an unreliable witness prone to exaggeration supports its case that his conduct of the proceedings gave rise to an apprehension of bias.
Justice Wigney awarded Mr Rush $850,000 in general and aggravated damages and said further damages would be awarded for economic loss after the parties had provided him with submissions.
The parties are due back in court on Friday to argue about the appropriate figure to compensate Mr Rush for economic loss.
Lawyers for Mr Rush had previously argued the actor was entitled to between $4.8 million and $20 million for lost future income.
The higher estimate was based on 10 years of potential lost earnings but Justice Wigney is expected to arrive at a lower figure. He said in his judgment that he believed Mr Rush's earning capacity would "return to the level that it was before the publications" in two years' time.
As the judgment stands, Mr Rush is presently on track to receive one of the largest defamation payouts in Australian history for a single plaintiff.
After the Victorian Court of Appeal slashed Rebel Wilson's damages payout from $4.5 million to $600,000, prominent Perth barrister Lloyd Rayney's $2.6 million payout holds the record for the largest defamation award to a single person.
- SMH/The Age