A new witness alleging acts of a “sexual nature” against Geoffrey Rush has been blocked from giving evidence in the Oscar-winning actor’s high-profile defamation case against the Daily Telegraph.

On Tuesday the judge, Michael Wigney, told the federal court he had decided not to allow the Sydney newspaper to make an eleventh-hour change to its legal defence to admit the evidence of “Witness X”. He also ordered that a suppression of Witness X’s identity and the details of her claim remain in place.

The new evidence, Wigney said on Tuesday, related to events “broadly said to be of a sexual nature” and was alleged to have “occurred during the season of a particular theatre production”.

Wigney conceded that the new evidence could potentially go to proving three general defamatory imputations at the centre of the case, including that Rush was a “pervert” and had engaged in inappropriate behaviour of a sexual nature in the theatre.

But he said the potential for prejudice against Rush by the delay admitting the evidence would create was “manifest and palpable” and “individually and cumulatively well-outweighed” the benefits of allowing it.

Delivering his reasons on Tuesday, Wigney said the alleged incidents in Witness X’s statement “did not occur in performances or rehearsals” and some of the alleged incidents had “occurred in social settings outside [the] theatre and one in a professional setting. The alleged conduct also included electronic messages.”

Wigney said Witness X’s evidence had “nothing to do with Mr Rush’s conduct during the [Sydney Theatre Company] production of King Lear ... which was the main if not sole focus of the articles Mr Rush contends were defamatory against him”.

Describing the Telegraph’s defence in the case as “a movable feast”, Wigney said Witness X’s evidence would “raise a series of entirely new allegations concerning Mr Rush’s conduct” and referred to the “delay and prejudice” the actor would suffer if the new evidence were allowed.

Rush is suing the Telegraph over a series of articles published in November and December in 2017 that alleged he had behaved inappropriately towards a cast member, Eryn Jean Norvill, during a 2015 production of Shakespeare’s King Lear.

But the allegations of Witness X, Wigney said, “do not involve Mr Rush’s behaviour during the production of King Lear, do not involve Ms Norvill and do not involve the STC”.

Instead, he said, they related to “incidents alleged to have occurred many years before 2016”.

The trial is now in its third week, having previously heard testimony from Rush, Norvill, and a roll call of Australian film, television and theatre personalities.

Last week the court heard that the case would have to be delayed until at least April next year if the newspaper had been allowed to call the new witness.

The Telegraph sought to have Witness X’s evidence admitted after it was contacted last Friday by Norvill’s solicitor, the Arnold Bloch Leibler partner Leon Zwier, who said “X” would be willing to give evidence.

Last week the Daily Telegraph’s barrister, Tom Blackburn SC, told the court the new witness would help the newspaper defend imputations that it alleged Rush was a “pervert, a sexual predator and of inappropriate behaviour of a sexual nature”.

But, Wigney said most of the imputations alleged by Rush went to specific acts during the King Lear production, and that the evidence of Witness X could only go to “general imputations”.

“The proposed new particulars and evidence of Witness X can at their very highest only go to establishing the substantial truth of [the] general imputations,” he said.

The Telegraph attempted to amend its defence on a number of occasions in the lead-up to the trial. On Tuesday Wigney said the Telegraph had sought to “frustrate and impede” Rush’s attempts for a speedy trial and said his previous characterisation of its conduct in the lead-up to the trial as being “unsatisfactory” was “if anything … an understatement”.



