The newspaper accused of defaming Geoffrey Rush says the theatre company that confirmed a complaint had been made about Rush's alleged "inappropriate behaviour" should also have to pay up if the publisher loses the high profile lawsuit.
In the Federal Court on Monday, lawyers for Nationwide News, the publishers of Sydney newspaper The Daily Telegraph, argued that the Sydney Theatre Company (STC) should be brought into the defamation case.
The publisher contends that the STC defamed Rush in statements it provided to the newspaper prior to publication, and is also liable for the lawsuit.
But lawyers for Rush vehemently disagreed, saying the cross claim was "ridiculous" and "absurd" and that it would add a week to the defamation trial, majorly inconveniencing Rush.
The Australian actor launched the defamation suit over articles published in the Daily Telegraph in November 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 STC production of King Lear.
Rush denies the allegations and is suing 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.
Nationwide News barrister Alec Leopold told the court the STC had provided three statements to the Daily Telegraph that were subsequently used in the newspaper's coverage.
He argued before Justice Michael Wigney that the STC statements carried the same imputations Rush alleges the Telegraph published – that he is a pervert, a sexual predator, and so on – and the company should therefore also have to pay damages if Rush wins the case.
Asked how the STC statements, which do not give any detail of the complaint, implied that the complaint was about sexual behaviour, Leopold said the ordinary reader would engage in some “loose thinking and speculation”.
"Particularly in 2017 when there's been a MeToo movement that cannot be ignored, that's likely to be what readers will contemplate," he said.
Leopold also said that the STC had effectively approved the publication of one of the stories because Moran had read it out over the phone to Katherine Stevenson, who works at the STC and provided two of the statements.
Barrister Sue Chrysanthou, acting for Rush, slammed the cross claim as "ridiculous" and said STC could not be held liable for the Daily Telegraph stories, because they implied a whole lot more than what the theatre company had actually said.
"The biggest problem is that there’s nothing at all of any sexual impropriety alleged [in the STC statements]," she said.
Chrysanthou described one of the front pages – which mentioned inappropriate "touching" and also used the word "scandal" – as "a complete world away from the statement made by Miss Stevenson at 3:57pm on November 28".
She rejected that the STC had agreed to the publication of one of the stories because Moran had read it out over the phone, asking the court whether Moran had told Stevenson about the "King Leer" cover with a picture "that makes [Rush] look like it's a guilty mugshot", and whether Stevenson had been made aware that the story was running right next to an article about allegations against Don Burke.
"[Moran] might have just said King Leer and Ms Stevenson might have assumed it was spelt correctly," she said.
Last month, Nationwide News suffered a major setback when Justice Michael Wigney struck out its entire defence of truth, a small section of its qualified privilege defence (in which the newspaper has to prove it acted reasonably in publishing the stories), and, crucially, a subpoena to the STC.
Wigney labelled the subpoena a "fishing expedition" to try and find material to support its case.
Chrysanthou contended that the cross claim is simply an attempt to override that decision and get the subpoena from the STC anyway.
“We keep saying this is all about the subpoena. What else could possibly explain this?” she told the court. “Is News Limited going broke? Why does it need cross-contribution from the STC?"
Nationwide News has launched an appeal against the Wigney strikeout decision.
However, it may drop the appeal altogether if Wigney approves its application to bring the Sydney Theatre Company into the proceedings, along with a second application to amend its defence.
Wigney will hand down a decision on the two applications on Friday afternoon.
At 4:15pm on Monday, the hearing before Wigney briefly paused so everybody could go to a short hearing on the appeal, which is being heard by a different Federal Court judge – Justice Michael Lee.
Lawyers and journalists packed up their belongings and trudged to the Law Courts building elevators to set up shop in a courtroom one level down, where the opposing legal teams switched sides for the five minute case management hearing.
Asked by Justice Lee when he will know for sure if the appeal is going ahead, Leopold said he would know by 5pm Monday, three days after Wigney's decision is handed down.
If the appeal does go ahead, it will next be in court on April 27.