The Sydney newspaper accused of defaming actor Geoffrey Rush has failed in an attempt to make the theatre company that was a source for its stories about Rush's alleged "inappropriate behaviour" a party to the high profile lawsuit.
In a decision on Friday afternoon, Federal Court justice Michael Wigney said the cross claim had a "weak and tenuous" chance of success and it was "to say the least, unusual" to have a major media organisation trying to make a source liable for defamation.
Australian actor Rush launched the defamation suit over articles published in the Daily Telegraph in late 2017 that alleged a complaint of "inappropriate behaviour" had been made against him, and that he had "inappropriately touched" a female cast member during a 2015-16 Sydney Theatre Company (STC) production of King Lear.
Rush denies the allegations and is suing The Daily Telegraph publisher Nationwide News and the journalist who wrote the stories, Jonathon Moran.
He claims the newspaper coverage suggested, among other things, that he is a "pervert", that he acted as a "sexual predator" on the set of King Lear, and that he engaged in "scandalously inappropriate behaviour of a sexual nature" in the theatre.
Rush's defamation claim also argues that mentions of other prominent men in the media industry who had allegations published against them as part of the movement widely known as #MeToo – Harvey Weinstein, Kevin Spacey and Don Burke – contributed to the imputations against him.
In the cross claim to bring the STC into the lawsuit, Nationwide News argued that the company had defamed Rush in statements it provided to the newspaper prior to publication, and should therefore also pay up if Rush wins.
But Rush's lawyers rejected the argument as "absurd" and said the Telegraph stories had gone much further than the STC statements.
"The biggest problem is that there’s nothing at all of any sexual impropriety alleged [in the STC statements]," said barrister Sue Chrysanthou at the hearing on Monday.
In his decision on Friday, Wigney hit out at Nationwide News for delaying proceedings, saying Rush was "anxious" to have the matter dealt with quickly.
"It would not be unfair to say in all the circumstances that while Nationwide News and Mr Moran were quick to publish they have been slow to defend," he said.
In a blow to Nationwide News, Wigney dismissed both the application for leave to bring the STC into the case and a second application from Nationwide News to amend its written defence before trial.
"The claims in the proposed cross-claim were, on just about any view, novel," he said. "The notion of a major media organisation and one of its journalists joining one of its sources for a story is, to say the least, unusual.
"More importantly, I have found that, upon close analysis, the claims in the proposed cross claim face a number of major legal and factual hurdles. Those hurdles are examined at length in my reasons. For present purposes it is sufficient to say no more than that the proposed cross claim is very weak, if not tenuous. The weakness of the cross claim militates against the grant of leave."
Wigney said the application to bring the STC into the case would lead to an inevitable delay in proceeding to trial and was "very much connected with [Nationwide News'] intent to obtain documents from the STC in the hope it can provide a justification defence against Mr Rush’s claim".
He said the same about the application to amend the defence, commenting that "there are at least reasonable grounds to suspect that the real reason for Nationwide and Mr Moran’s zealous, if not desperate, pursuit of these amendments was to justify a further subpoena to the STC".
Wigney noted that his decision doesn't mean Nationwide News cannot pursue the STC for money if it loses the case, but just that it would have to do that in a separate lawsuit.
Earlier in the defamation proceedings, Wigney had rejected an application from the newspaper to subpoena the STC, saying it was a "fishing expedition" to try and find material to support its defence.
In the same decision, Wigney struck out a substantial portion of the Nationwide News defence, obliterating its truth defence and taking out part of its qualified privilege defence (in which the paper must prove it acted reasonably in publishing the stories).
Nationwide News is appealing the decision to reject the subpoena and to strike out the qualified privilege defence (but not the truth defence strikeout). The appeal proceedings are before Justice Michael Lee.
Wigney also set down a trial date for September 3.