The Daily Telegraph has failed in its bid to obtain documents from the Sydney Theatre Company and to reinsert parts of the legal defence struck out earlier this year, in the defamation proceedings the newspaper is facing from Australian actor Geoffrey Rush.
The decision is another blow to the Sydney newspaper in the high-profile case, over two articles in late 2017 that alleged a complaint of "inappropriate behaviour" had been made against Rush and that he had "inappropriately touched" a woman actor during a 2015–16 Sydney Theatre Company production of King Lear.
The Daily Telegraph was also criticised in court on Friday for not speaking to the woman who allegedly made the complaint against Rush before publishing.
Rush is suing the Daily Telegraph's publisher, Nationwide News, (owned by News Corporation) and the journalist who wrote the stories, Jonathon Moran.
In the claim, Rush says the newspaper suggested 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.
He also argues that mentions in the newspaper coverage 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 Friday's hearing before the full court of the Federal Court of Australia, Nationwide News asked for permission to appeal an earlier decision to strike out parts of its qualified privilege defence (in which it must prove it acted reasonably in publishing the stories) and to dismiss a subpoena to the Sydney Theatre Company, which was labelled "a fishing expedition" by Justice Michael Wigney earlier this year.
Nationwide News barrister Tom Blackburn SC argued that the facts in the articles were true, and that this showed that the paper had taken care and been thorough in reporting them – so the paragraphs that had been struck out were relevant to the newspaper's argument that it had acted reasonably.
“Every fact in the matter, we maintain – and of course this will be tested at trial – every fact in the matter is true," he told the court.
He was met with some incredulity by Justice Steven Rares, who asked "How can you possibly say you took care?" in making a serious allegation against Rush and not speaking to the actor who allegedly made the complaint against him.
Blackburn later in the proceedings said the paper had tried to speak to the woman actor but couldn't.
"I can assure the court it’s not for want of trying," Blackburn said. "It’s not a piece of carelessness or oversight or slackness in the article. The court can make of that what it wishes."
Rares replied that "at the end of the day" the Telegraph had not spoken either to the woman actor or to a witness, and that Rush had denied the allegations.
"How can you possibly run a statement that this is true?" he asked.
"I don’t want to start talking about who we have and haven’t spoken to, your honour... It’s complicated," Blackburn said. "The fact of the matter is, these are matters for trial."
He added: "At the trial we propose to prove that we took great care to prove what we published was true. And, yes, our articles are [comprised of] what we’ve been told by a number of sources including the Sydney Theatre Company."
Rares then characterised the Telegraph's actions as "We published a rumour and did everything we could to find out if it was true but the two people at the substance of the rumour, the actress and Mr Rush, haven’t spoken to us?"
"No, Mr Rush denied it," Blackburn replied.
Rush's barrister Richard McHugh SC labelled the defence "a non-starter".
"As emerged in the argument earlier, they didn’t speak to the complainant," McHugh said. "They didn’t get a copy of the complaint. They didn’t speak to anyone who was a direct witness of what is alleged to have occurred."
The panel of three judges dismissed the application to appeal after conferring for approximately five minutes.
A week ago today, Nationwide News had two interlocutory injunctions dismissed that were seeking to add the same part back into the defence and to make the Sydney Theatre Company jointly liable in the event that Rush wins the case.
The case is listed for trial in September.