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Judge in Rush defamation trial throws out evidence from ‘Witness X’

Late evidence from a mystery witness in the Geoffrey Rush defamation trial will not be heard, the Federal Court has ruled.

In a judgment this morning, Justice Michael Wigney said he would not allow the affidavit from ‘Witness X’ to form part of a new defense for The Daily Telegraph.

A court order forbidding publication of the witnesses name and the specific allegations remains in place.

Final submissions in the trial will now be heard tomorrow and Thursday.

The witness was introduced last Friday by lawyers for the Telegraph who applied to the court to amend their defence on the back of an 85-page affidavit received the previous weekend.

The evidence contained fresh allegations and, according to Telegraph barrister Tom Blackburn SC, went to the “heart” of the imputations that Rush engaged in “inappropriate behaviour of a sexual nature”.

Blackburn had described it as “vital evidence”.

In a 90-minute ruling, Justice Wigney said allowing the new evidence would cause more uncertainty, harm and prejudice to Rush and his family, and result in an unacceptable delay of “at least six months” to the defamation proceedings which are “all-but finished”.

The prejudice to Rush would be “manifest and palpable”, he said, and would require the actor to return to the witness box.

Justice Wigney said it was clear that giving evidence had taken an “emotional and physical toll” on both Rush and his wife Jane Menelaus.

He said the allegations from ‘Witness X’ were completely separate to the accusations at the centre of the Telegraph stories which related to inappropriate behaviour towards actress Eryn Jean Norvill during a Sydney Theatre Company production of King Lear.

It concerned an “entirely new set of allegation from a different person, in a different setting and a different time”.

Justice Wigney said they took place “many years ago” in both a professional and social setting, and included electronic messages.

But while separate from the current defamation proceedings, he did concede they could, at “their very highest” potentially support three “general imputations”; that of scandalously inappropriate behaviour in a theatre, inappropriate behaviour of a sexual nature and that the actor he is a “pervert”.

But Justice Wigney, while acknowledging it was “by no means an easy exercise”, ruled the evidence should not be allowed, saying the reasons “out-weighed” the benefits for allowing it.

He noted that Nationwide News had contacted Witness X on several occasions over the past few months in a bid to get her to co-operate. All had been unsuccessful until they were contacted on October 26 by the same solicitor who represents Norvill.

She is said to have to come forward after reading media reports of the defamation trial, he told the court.

Justice Wigney added that the defense of Nationwide News and its journalist Jonathon Moran had, throughout proceedings, been “to say the least a  moveable feast”.

Such conduct has been “unsatisfactory”, he continued, adding that it had attempted to “frustrate and impede Mr Rush at every opportunity”.

In pre-trial hearings, Justice Wigney had described Nationwide News as being “quick to publish and….slow to defend”.

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