The Sydney newspaper faced with a $2.9 million bill after losing a defamation lawsuit brought by film star Geoffrey Rush has asked for access to audio recordings of the 2018 trial as it fights to overturn the verdict.
The newspaper will argue that Justice Michael Wigney's "tone" during parts of the trial made him look biased, and the audio provides necessary context that can't be gleaned from a court transcript.
In April, Wigney ruled against the News Corp publisher of the Daily Telegraph, finding the newspaper had unfairly painted Rush as a "pervert" and a "sexual predator" in articles published in the height of the #MeToo movement alleging the Australian actor had sexually harassed an unnamed female cast member during a run of the play King Lear.
Wigney threw out the Telegraph's entire truth defence and awarded Rush a total of $2.9 million in damages — Australia's highest ever defamation payout to one person.
But the case is not over yet, as the Telegraph fights an appeal on a number of grounds, including that Wigney's conduct gave rise to an apprehension of bias.
This argument does not suggest Wigney was actually biased, but rather that his conduct would have looked biased to an ordinary observer.
During a brief hearing on Wednesday morning, Telegraph barrister Pouyan Afshar asked for access to the audio of the entire three-week trial for the appeal.
The audio was needed for the argument that Wigney's repeated "derogatory" references to the Telegraph and its stories, and the "tone" he used while making those remarks, would have led someone to think he was biased, Afshar said.
Afshar said only the "relevant portions" of the audio would be actually included in the appeal documentation.
Rush's barrister Sue Chrysanthou said she did not object to the Telegraph accessing audio of the trial, but only the recordings relating to three specific moments the newspaper identified in its appeal claim.
Justice Anthony Besanko said he would need more information before granting the request, and ordered the Telegraph to file submissions on why it should be able to access the recordings by June 21.
Other grounds of appeal include that Wigney made errors by finding that the Telegraph's stories suggested Rush is a "pervert"; that star witness Eryn Jean Norvill was unreliable and lacked credibility; and that Rush had been unable to work due to the emotional effect the articles had on him.
The Telegraph also argues that Wigney made errors by disallowing the late inclusion of evidence from actors Yael Stone — at the time identified only by the pseudonym Witness X — and Colin Moody, who were both set to testify in the newspaper's favour.
A date for the appeal hearing has not been set. Chrysanthou reiterated that Rush is eager to have it heard in August.
The case is back in court on July 15.