Telegraph’s bid to sue Sydney Theatre Company in Rush defamation proceedings labelled ‘absurd’

Sydney Theatre Company cannot possibly be held accountable for stories published by The Daily Telegraph in which actor Geoffrey Rush was accused of inappropriately touching an actress during a production of King Lear, the Federal Court has heard.

Lawyers acting for Rush said it was “absurd” the newspaper was seeking leave to sue the theatre company as part of the current defamation proceedings.

Alec Leopold, acting for Daily Telegraph publisher Nationwide News and journalist Jonathon Moran, had earlier argued that STC supplied the information which led to the stories, and was therefore liable.

The notice of cross claim lodged by The Daily Telegraph and Moran “seek contribution or indemnity for any damages recovered by the Applicant [Rush] in the proceedings”.

Leopold stressed it did not mean in “any way, shape or form” that his clients were resigned to losing the case.

Rush is suing the Telegraph and Moran over stories late last year which said Rush engaged in “inappropriate behaviour” while appearing in a production of King Lear on a Sydney stage.

He claims the stories portrayed him as a “pervert” and a “sexual predator” – imputations he has vigorously rejected.

Sue Chrysanthou, acting for Rush, said for the cross claim to have merit, the STC must be liable for each of the matters Rush has taken issue with.

They include posters containing the word “scandal” which advertised the Telegraph’s story on November 30, photographs of Rush made to resemble a criminal “mug shot”, and the “incorrect spelling of King Leer”.

There were also four mentions of the word “touching” in the Telegraph’s stories, a word Chrysanthou said was never used by STC.

“STC must be liable for each of the entire matters complained of. That is quite a difficult proposition to accept indeed,” she told Justice Michael Wigney.

Chrysanthou argued that Moran and The Daily Telegraph’s treatment of the story and the way it was presented bore little resemblance to the information contained in statements supplied by the theatre company, and its executive director Patrick McIntyre.

None of the information supplied to Moran contained references to sexual impropriety and did not suppose guilt on the part of Rush, she said.

The phrase “inappropriate behaviour” could have meant anything, she added.

“It could have meant bullying, swearing, there was no suggestion of sexual opprobrium.”

The content and manner of the stories on the other hand suggested Rush was guilty of the allegations and that they were of a sexual nature.

“Why should Mr McIntyre or the STC be liable for how Mr Moran has put these facts together in his head, irrationally, to one million people?”, Chrysanthou told the court.

The barrister also scoffed at the “exclusive” tag attached to the story, saying “it’s an exclusive to Mr Moran because he’s made it up”.

Chrysanthou said the STC had “no control” over what was published by the Daily Telegraph and could not possibly be regarded as the “publisher”, an argument put forward by Leopold.

“When someone is approached by a journalist and they respond…it doesn’t mean they are a publisher,” she told the hearing.

She also dismissed Leopold’s argument that STC media relations officer Katherine Stevenson has given tacit approval of the article after it was read to her over the phone by Moran.

Saying nothing, however, did not mean she agreed with the way it was written or its content, Chrysanthou told the court.

Leopold had argued that by not objecting or questioning the story, Stevenson had effectively approved it for publication.

The court also heard that McIntyre told Moran – in comments that were to be unattributed – that the STC has vowed never to work with Rush again in light of the allegations.

Chrysanthou again said there has been no mention of sexual misconduct.

“Maybe he [Rush] had shouted at her [the actress] and made her cry and they said they’d never work with him again,” she said.

“Mr McIntyre said nothing about touching. They have come up with that themselves.”

She said if Rush had sued the STC based on the information they supplied to The Daily Telegraph, and she was his representing barrister, “I’d have been laughed out of court”.

Chrysanthou questioned why News Limited was going down the path of suing the theatre company, asking whether the publisher was “going broke”.

She repeated previous allegations that it simply wanted to launch a cross claim in order to gets its hands on STC documents that may support its case.

In an earlier hearing, Justice Wigney had rejected the Telegraph’s request to subpoena STC, describing it as a “fishing expedition”.

Leopold rejected the allegations, accusing Chrysanthou of playing to the media gallery and trying to “bag her competitors”.

Earlier, Leopold told Justice Wigney the one person who would potentially suffer if the cross claim was rejected was Rush himself.

He argued that if the newspaper is forced to launch separate proceedings against STC after the defamation case is concluded, the case would drag on and prolong the actor’s anguish.

Leopold told the court that STC produced three statements which provided information relating to Rush’s alleged wrong-doing. They formed the basis for the stories which appeared soon after, under the headline ‘King Leer’.

Justice Wigney questioned why the allegation of “inappropriate behaviour” had automatically been assumed to be behaviour of a sexual nature.

“It could have been about the use of rude language,” he suggested.

Leopold said that in the eyes of the “ordinary, reasonable reader”, and by “reading between the lines” such “inappropriate behaviour” would mean behaviour of a sexual nature.

It would be the “obvious conclusion”, he said, “particularly in 2017 when there has been a #MeeToo movement”.

Referring the Telegraph’s use of the word “scandal”, Leopold argued Rush is a famous actor and said the average reader would regard the allegation of inappropriate behaviour as “scandalous”.

Justice Wigney is due to make a judgement on whether to allow the cross claim against the STC on Friday afternoon.

The defamation trial itself is likely to take place in August or September.

Timeline of Geoffrey Rush defamation case: 

30 November: Geoffrey Rush denies ‘inappropriate behaviour’ during Sydney Theatre Company play
3 December: 
Geoffrey Rush steps down as AACTA president ahead of awards on Wednesday
7 December: Lion dominates at the AACTA Awards as producer thanks industry for calling out sexual harassment
8 December: Geoffrey Rush to sue The Daily Telegraph for defamation
18 December: Sexual harassment allegations prompt collaboration between major state theatre companies and MEAA
20 March: Federal Court rules against Daily Telegraph in Geoffrey Rush defamation hearing
27 March: Daily Telegraph seeks leave to appeal decision as Geoffrey Rush defamation battle continues
9 April: Daily Telegraph lawyers accused of treating Geoffrey Rush litigation ‘like a game’
16 April: Daily Telegraph lawyers make case to launch cross claim against Sydney Theatre Company as Geoffrey Rush case continues


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