Judge rejects Daily Telegraph's bid to call 'Witness X' in Rush trial
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Judge rejects Daily Telegraph's bid to call 'Witness X' in Rush trial

A woman dubbed "Witness X" who has made allegations of a sexual nature against Geoffrey Rush will not be permitted to give evidence in support of The Daily Telegraph in a defamation case brought against it by the Oscar-winning actor, after a judge rejected the newspaper's eleventh-hour bid to amend its defence.

Federal Court Justice Michael Wigney ruled on Tuesday that he would not allow the prospective new witness to give evidence in the high-stakes trial, which has run for 12 days and is expected to conclude by the end of the week.

Geoffrey Rush leaves the Federal Court in Sydney on Monday.

Geoffrey Rush leaves the Federal Court in Sydney on Monday.Credit:Peter Rae/AAP

Justice Wigney said the evidence of the witness, known as "Witness X" because Mr Rush's lawyers successfully applied for an interim non-publication order over her identity and the details of her proposed evidence, related to Mr Rush's alleged conduct during a theatre production that is not at the centre of the case.

The alleged incidents raised by Ms X "could broadly be said to be sexual in nature”, Justice Wigney said, and included electronic messages.

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The last-ditch bid by the Telegraph to call new evidence was regarded as an outside chance.

Justice Wigney said the amendments proposed by the Telegraph were "substantial and significant" and raised "entirely new allegations" regarding Mr Rush's conduct "many years" before the alleged incidents in the newspaper's reports. Mr Rush would be forced to return to the witness box to respond to the claims.

He said allowing the newspaper to amend its defence so late in the proceedings would have led to an immediate adjournment of the trial until April "at the very earliest," owing to the availability of Ms X and his own work commitments. The prejudice to Mr Rush was "manifest and palpable," he said.

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Mr Rush is suing the Telegraph's publisher, Nationwide News, over two articles and a newsagent poster published in late 2017, which alleged the actor was involved in "inappropriate behaviour" towards an unnamed co-star during the Sydney Theatre Company's 2015-16 production of King Lear. Mr Rush, who performed the lead role, vehemently denies the claims.

The co-star was later revealed to be Eryn Jean Norvill, who played King Lear's daughter Cordelia. Ms Norvill did not cooperate with the newspaper before the stories were published and initially did not agree to give evidence for the publisher in court.

Tom Blackburn, SC, acting for Nationwide News, told the court last week that Witness X would give "vitally important evidence, Your Honour might think," that could assist in resolving "a difficult factual dispute".

But Justice Wigney said the evidence proposed to be given by Ms X was largely irrelevant to the focus of the newspaper's articles, which concerned Mr Rush's alleged conduct during King Lear.

Eryn Jean Norvill and lawyer Leon Zwier arrive at the Federal Court on Friday.

Eryn Jean Norvill and lawyer Leon Zwier arrive at the Federal Court on Friday. Credit:Joel Carrett/AAP

Justice Wigney said Ms X worked "with or alongside" Mr Rush some years before King Lear and initially refused to assist the Telegraph, but changed her mind after seeing media reports of the case.

On October 26, Arnold Bloch Leibler partner Leon Zwier, who also acts for Ms Norvill, indicated to the Telegraph that Ms X may be willing to give evidence.

Contrary to submissions made by Mr Rush's legal team, Justice Wigney said he was not satisfied Ms X or her solicitor had engaged in an abuse of process or contempt of court by allegedly putting "improper pressure" on Mr Rush during a conversation with his solicitor.

Justice Wigney said the incidents about which Ms X was expected to give evidence were "all said to have occurred during the season of a particular theatre production," mostly in a social setting outside the production, and could be said to be sexual in nature.

He said the alleged conduct, which did not occur during the performance or rehearsals, included electronic messages.

Justice Wigney said the proposed new evidence, at its "very highest", would only have been potentially relevant to a small number of general imputations Mr Rush claimed were conveyed by the Telegraph's articles, including that he was a "pervert" and engaged in "scandalously inappropriate" behaviour in the theatre.

The bulk of the allegedly defamatory claims pleaded by Mr Rush related to the STC production of King Lear, he said.

He said an argument that the evidence proposed to be given by Witness X might amount to "tendency evidence" - which would require an allegation Mr Rush had a tendency to behave in a particular way - was "not developed" by Nationwide News.

Justice Wigney noted the torturous procedural history of the proceedings, including repeated amendments by the Telegraph to its defence. By contrast, Mr Rush's claim had been "consistent since the day it was filed" in December 2017 and "there have been no amendments by him".

At every stage Mr Rush had pressed for an early hearing of his case while the Telegraph and its reporter Jonathon Moran, who is also being sued, had "frustrated and impeded" that "at every turn," Justice Wigney said.

He said that his observations of Mr Rush and his wife Jane Menelaus during the case was that it had exacted a "great emotional toll on them" and it was reasonable to infer they would suffer continued stress and anxiety if the amendments were permitted and the trial was adjourned for six months.

Ms Norvill gave evidence last week that Mr Rush "deliberately" groped her on the side of her right breast during a preview performance in late 2015 when King Lear grieved over Cordelia's corpse.

She also alleges Mr Rush made lewd gestures during rehearsals such as "cupping" her breasts above her body, along with sexually suggestive comments. Mr Rush denied the claims.

Mr Rush was supported in court by the production's director, Neil Armfield, and his co-stars Robyn Nevin and Helen Buday.

But actor Mark Leonard Winter, who played the role of Edgar in King Lear, gave evidence he witnessed Mr Rush performing a "Three Stooges-y" style sketch above Ms Norvill's body during rehearsals which included a "boob-squeezing gesture".

He said he also witnessed Mr Rush "cupping" Ms Norvill's breast on stage, but said it was the left side of her body. Ms Norvill has given evidence Mr Rush touched her on the side of her right breast.

The parties will start delivering their closing addresses to Justice Wigney on Wednesday.