The appeal judges also upheld the trial judge’s ruling that Norvill’s social interactions with Rush contradicted some of her testimony. The original judgment listed three things: one was that Norvill went to a play with Rush and had dinner with him, one was that Norvill invited Rush to a Christmas party at her parents’ home, and one was that she sent an “affectionate” email to him, two days before the last performance of King Lear. In court, Norvill said she was “not proud” of the email, but sent it because she was “in survival mode”. “I wanted to get to the end of the show,” she said. “I had two shows to go. I was very frightened. I didn’t want to risk the performance. I guess I chose to put Geoffrey’s comfortability above my own.” The appeal judges have today agreed with the trial judge that these interactions cast doubt on her reliability. “Like the Judge, we have difficulty understanding why Ms Norvill responded to Mr Rush’s email of 7 January 2016 using the term of endearment which she did if he had been behaving towards her in the manner she described,” they wrote. “We accept that there was a power imbalance in the relationship between Mr Rush and Ms Norvill. It is also appropriate to take into account the difficulties commonly experienced by those who have suffered sexual harassment in reporting the conduct. “However, even having regard to those matters, it is difficult to understand that they may explain the very affectionate (if not effusive) terms of Ms Norvill’s response to the email.” So what was that other evidence? The appeal court has agreed with the original judge that the testimony of other veteran actors on set, and director Neil Armfield, contradicted Norvill. The appeal judges said there was evidence that “there was a positive relationship” between Norvill and Rush. Most of that, as written in this judgment, is via the testimony of Armfield, and actors Robyn Nevin and Helen Buday. Mr Armfield said that, based on his observations of Ms Norvill and Mr Rush during the rehearsals and the performances, he had thought that they were getting on “wonderfully” and that they had “a deep friendship”. Ms Buday said that she had not noticed any indications of discomfort by Ms Norvill; Ms Nevin described Mr Rush’s relationship with Ms Norvill as the same as with her and everyone else (“jovial, friendly, enthusiastic, cheerful”) and said that she had not noticed anything “out of the ordinary”; and Mr Rush said that he thought that he had “a very sparky, congenial rapport” with Ms Norvill. None of that evidence was challenged. The judges acknowledged that Norvill argued she was pressured to maintain “good relationships”. But: One may accept that Ms Norvill may have endeavoured at relevant times, in the interests of the performance of King Lear as a whole, to maintain good relationships with all cast members... However, we consider, as counsel for Mr Rush submitted, that Ms Norvill’s relationship with Mr Rush, as described by these witnesses did not sit well with her claims that she had felt “compromised”, “pressured”, “extremely intimidated”, “frightened”, “threatened” and “panicked”. That is to say, there was other evidence suggesting that Ms Norvill’s contemporaneous behaviour was not consistent with the claims she made at trial concerning Mr Rush’s conduct. For these reasons, we do not consider that the erroneous significance which the Judge attached to Ms Norvill’s contemporaneous statements to the journalists should be regarded as material. Other contemporaneous conduct of Ms Norvill, occurring when she was not subject to the same constraints as those applying in the promotional interviews, was also seemingly inconsistent with the conduct of Mr Rush about which she gave evidence, and justified the Judge’s assessment. Court agrees Eryn Jean Norvill"s positive statements about Rush given too much "significance" Though the appeal was dismissed, the appeal court has agreed with one part of the Daily Telegraph’s submissions, which is that the trial judge put too much weight on promotional press interviews where Eryn Jean Norvill praised Rush. The trial judge, Michael Wigney, had said that Norvill had undermined her reliability as a witness by giving a positive press interview about Rush to the Telegraph in 2015, as she promoted King Lear. Norvill had said Rush was “just forever playful” and “very cheeky”. Wigney wrote that these “contemporaneous statements to the media about her positive experience working with Mr Rush ... count against the reliability and credibility of Ms Norvill’s evidence concerning the rehearsals.” Norvill testified that she had been pressured into making these positive comments so as not to ruin the promotions for the show. The appeal court has today agreed with the argument that Wigney put too much significance on these comments. There is some force in the appellants’ submission that the judge attached greater significance to Ms Norvill’s statements in the promotional interviews than the circumstances warranted. The purpose of the interviews was obvious, namely, the promotion of the STC’s production of King Lear. The actors sought to present a positive image of the production so as to encourage audiences to attend. In such interviews, it is almost de rigueur for the participants to speak about the complexity of the play, the delight which they are experiencing in performing it and about the good “chemistry” which exists between the actors. [Rush] was at the time a (if not the) pre-eminent actor in Australia and was an obvious drawcard for the STC production. In that context it would have been natural for Ms Norvill to make positive statements about performing with him, whatever her private feelings. We consider respectfully that the judge should not have attached the significance which he did to the positive terms in which Ms Norvill spoke of Mr Rush in the promotional interviews.” The judges said that Norvill’s press comments were in fact “consistent” with her other testimony, that she felt uncomfortable, but had to suppress this for the “corporate” interest in promoting the play. But, they concluded that there was “a good deal of other evidence”, apart from the press interviews, which “indicated that there was a positive relationship between Ms Norvill and Mr Rush”. This ultimately meant they dismissed the appeal. And here is the judgment summary for you to read. We’re still combing through the 177-page full judgment and will bring you the most pertinent parts. The total bill of damages to Rush thus stands at: Non-economic loss including aggravated damages – $850,000; Past economic loss including pre-judgment interest – $1,060,773 Future economic loss – $919,678 Pre-judgment interest on the non-economic loss – $42,302.10. The appeal court rejected all of the Telegraph’s arguments that the primary judge had overestimated how much work Rush would have lost as a result of the articles and the emotional impact of the defamatory claims. From the judgment summary, Justices Jacqueline Gleeson, Richard White, Michael Wheelahan said all of the Daily Telegraph’s grounds of appeal were rejected. They said they “agreed with the trial judge” that the Daily Telegraph’s publications conveyed the imputation that Rush was a “pervert”. They rejected the newspaper’s claim that the original judge had erred in striking out their defence of truth. “Nationwide News’ only substantive defence at the trial was the claim that all but one of the imputations alleged by Mr Rush were substantially true ... The full court concluded that the [trial] judge’s assessment of Ms Norvill was based on findings that are not glaringly improbable.” And, they ruled that the damages awarded were “appropriately high but not manifestly excessive having regard to the extremely serious nature of the imputations that were conveyed by the publications, the extent of publication, the hurt and distress caused to Mr Rush by the publications, the conduct of Nationwide News that aggravated the harm caused to Mr Rush and the harm caused to Mr Rush’s reputation”. Daily Telegraph loses appeal Nationwide News has lost its appeal against the Geoffrey Rush defamation verdict. The judges also rejected all of the newspaper’s grounds of appeal. This means the Daily Telegraph has lost its appeal for a retrial, and their appeal for costs to be reduced. Rush will be awarded the full $2.9m in damages – the largest defamation payout to a single person in Australian history. More detail to come. The judgment today could go a few ways. The Daily Telegraph is appealing against the original verdict, as well as the costs awarded against them. Their grounds of appeal include (but not limited to): The primary judge erred in finding that the article carried the imputation that Rush “was a pervert”. The judge erred in denying their defence that the imputations were “substantially true”. The judge erred in finding that Norvill gave unreliable evidence. The amount of general damages is excessive. The judge erred in awarding such a large sum of damages based on Rush’s argument that he lost work as a result of the emotional impact of the article. They are arguing that Rush gave no proof of this. If the court agrees with the argument that the trial judge erred regarding the imputations, the truth defence, or that he erred in finding Norvill gave unreliable evidence, it could order a retrial. If the court agrees only with the grounds of appeals around damages, it could reduce the money paid to Rush – while still upholding the original verdict. Earlier, the Daily Telegraph had intended to run an appeal on the grounds that the trial judge, Justice Wigney, had displayed bias. But it later withdrew that completely. The ruling is due at 9.30am. To refresh our memories, the appeal today centres around an article published in November 2017, headlined “King Leer”, that said Rush had “engaged in inappropriate behaviour” during a Sydney Theatre Company production of King Lear in 2015 and 2016. Rush denied the claims and sued the Daily Telegraph and its parent company Nationwide News. In April 2019, Justice Michael Wigney ruled that the newspaper had defamed Rush. He said the articles conveyed the imputations that Rush was “a pervert”, “a sexual predator” and “committed sexual assault in a theatre” during the production. The Telegraph argued that these imputations were not actually conveyed by the text and images of the article. Failing that, they also argued the defence of truth. Both arguments were rejected. During the trial, the court heard testimony from a rollcall of Australian theatre and film personalities – including actors Judy Davis, Robyn Nevin and director Neil Armfield – who all testified in favour of Rush. The actor who alleged she was harassed and groped by Rush, Eryn Jean Norvill, had not consented to the Telegraph’s initial story. But she later agreed to testify in court. Her testimony was backed up by fellow actor Mark Leonard Winter. Actor Yael Stone also agreed to testify, alleging she was harassed by Rush during a different play, but her testimony was not allowed to be admitted, and she was given the pseudonym Witness X. In ruling in favour of Rush, Wigney said that Norvill was “prone to exaggeration and embellishment”. He said the Telegraph’s reports were “in all the circumstances, a recklessly irresponsible piece of sensationalist journalism of the worst kind”. Good morning Good morning and welcome to our live coverage of the appeal in the Geoffrey Rush defamation case. This morning we will find out if the Daily Telegraph is successful in appealing against Rush’s 2019 court win, which awarded him $2.9m in damages – the largest defamation payout to a single person in Australian history. The Telegraph is appealing both the size of the payout and the decision itself, meaning that the case could go to a retrial. The judgment from the federal court will be handed down today at 9.30am. Now, due to Covid-19, the court has told us that there will be “no access to the courtroom”. That includes media and even the parties themselves. The court has also said there will be no livestream. The court’s public information officer has assured us the judgment will be published online shortly after 9.30am and sent to media. Previously, the site has temporarily crashed when popular judgments have been posted, so we’ll see. As we wait, we’ll be explaining the legal issues and looking at rulings the court could make today. Stay with us.