FEDERAL COURT OF AUSTRALIA

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

File number: NSD 2179 of 2017 Judge: WIGNEY J Date of judgment: 11 April 2019 Catchwords: DEFAMATION – where numerous defamatory imputations alleged – consideration of whether the alleged imputations were conveyed by the publications – consideration of principles of “ordinary reasonable person” and “natural and ordinary” meaning – consideration of whether publications conveyed guilt – consideration of whether publications contained statements as an “antidote” to the “bane” of the defamatory statements – consideration of whether alleged extrinsic facts were matters of general knowledge or notoriety – where defence of justification pleaded by respondents pursuant to s 25 of the Defamation Act 2005 (NSW) – consideration of whether on balance of probabilities the words and “defamatory sting” conveyed by publications were substantially true – where onus of proving pleaded imputations were conveyed by the publications was discharged – where defence of justification failed Held: application granted – certain defamatory imputations conveyed by the publication – defence of justification not successful DAMAGES – where applicant sought general compensatory damages for non-economic loss – where applicant sought aggravated damages – assessment of general or compensatory damages – consideration of appropriate and rational relationship between harm sustained by applicant from the publications and the amount of damages – where applicant sought special damages for past economic loss and future economic loss as a result of defamatory publications – consideration of what applicant’s future income would have been but for the defamatory publications – consideration of expert evidence – quantification of damages Legislation: Defamation Act 2005 (NSW) ss 4, 8, 25, 29, 30, 34, 35, 35(1), 35(2) and 36 Evidence Act 1995 (Cth) ss 44, 69, 102, 135 and 140 Federal Court of Australia Act 1976 (Cth) ss 51A and 52 Cases cited: Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Barrow v Bolt [2013] VSC 226 Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; 1 WLR 1526 Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 Briginshaw v Briginshaw (1938) 60 CLR 336 Bristow v Adams [2012] NSWCA 166 Broome v Cassell & Co Ltd [1972] AC 1027 Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Chakravarti v Advertiser Newspapers Limited (1998)193 CLR 519 Chalmers v Payne (1835) 2 Cr M & R 156 at 159; (1835) 150 ER 67 Chase v News Group Newspapers Ltd [2002] All ER (D) 20 (Dec); EWCA Civ 1772; [2003] EMLR 218 Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Coyne v Citizen Finance Limited (1990 – 1991) 172 CLR 211 Crampton v Nugawela (1996) 41 NSWLR 176 Cripps v Vakras [2014] VSC 279 Cross v Queensland Newspapers Pty Limited [2008] NSWCA 80 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Duffy v Google Inc (No 2) [2015] SASC 206 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 Fink v Fink (1946) 74 CLR 127 Flegg v Hallett [2015] QSC 167 Flood v Times Newspapers Ltd [2012] 2 AC 273 at [8]; 4 All ER 913 Fox v Boulter [2013] EWHC 1435 (QB) Fox v Percy (2003) 214 CLR 118 Habib v Nationwide News Pty Ltd (2010) 78 NSWLR 619 Haertsch v TCN Channel Nine Pty Ltd [2010] NSWSC 182 Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 Hough v London Express Newspaper, Ltd [1940] 2 KB 507 at 515; [1940] 3 All ER 31 Howden v “Truth” & “Sportsman” Ltd (1937) 58 CLR 416 John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; (2003) 201 ALR 77; [2003] HCA 50 Jones v Skelton [1963] 1 WLR 1362; [1963] 3 All ER 952 Lee v Wilson and MacKinnon (1934) 51 CLR 276 Lewis v Daily Telegraph Ltd [1964] AC 234 Ley v Hamilton (1935) 153 LT 384 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Mastronardo v Commonwealth Bank of Australia Ltd [2018] NSWCA 136 Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992)110 ALR 449 Norris v Blake (No 2) (1997) 41 NSWLR 49 O’Brien v McKean (1968) 118 CLR 540 Pahuja v TCN Channel Nine Pty Ltd (No 3) [2018] NSWSC 893 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 Palmer v The Queen (1998) 193 CLR 1 Plato Films Ltd v Speidel [1961] AC 1090 Puels v Exelerate Funding Pty Ltd (2005) 214 ALR 616 R v SAB (2008) 20 VR 55 R v Uhrig (unreported, New South Wales Court of Criminal Appeal, 24 October 1996) Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 Rush v Nationwide News Pty Ltd (No 4) [2018] FCA 1558 Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851 Rush v Nationwide News Pty Ltd [2018] FCA 357 Sands v South Australia (2015) 122 SASR 195 Selecta Homes and Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd (2001) 79 SASR 451 Sims v Wran [1984] 1 NSWLR 317 Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 Slim v Daily Telegraph Ltd [1968] 2 QB 157 Slipper v British Broadcasting Corporation [1991] QB 283 Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140 Speight v Gosnay (1891) 60 LJQB 231 Tabet v Gett (2010) 240 CLR 537 Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 Triggell v Pheeney (1951) 82 CLR 497 Trkulja v Google LLC (2018) 356 ALR 178 Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Wilson v Bauer Media Pty Ltd [2017] VSC 521 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 Date of hearing: 22, 23, 24, 25, 26, 29, 30, 31 October 2018 and 1, 2, 5, 6, 7, 8 and 9 November 2018 Registry: New South Wales Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 927 Counsel for the Applicant: Mr B R McClintock SC with Ms S T Chrysanthou [Mr K Smark SC on 31 October 2018 and 2 November 2018] Solicitor for the Applicant: HWL Ebsworth Lawyers Counsel for the Respondents: Mr T D Blackburn SC with Ms L Barnett Solicitor for the Respondents: Ashurst Australia

ORDERS

NSD 2179 of 2017 BETWEEN: GEOFFREY ROY RUSH Applicant AND: NATIONWIDE NEWS PTY LIMITED First Respondent JONATHON MORAN Second Respondent

JUDGE: WIGNEY J DATE OF ORDER: 11 April 2019

THE COURT ORDERS THAT:

1. Verdict and judgment be entered for the applicant.

2. The respondents pay the applicant damages for non-economic loss, including aggravated damages, assessed at $850,000.

3. The assessment of special damages for economic loss suffered by the applicant be reserved for further consideration.

4. The matter be listed for a Case Management Hearing at 9.30 am on 10 May 2019 for the purpose of making procedural orders for the determination of all outstanding issues, including the assessment of special damages for economic loss, injunctive relief, costs and interest.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

O, you are men of stones!

Had I your tongues and eyes, I’d use them so

That heaven’s vault should crack. She’s gone for ever.

I know when one is dead and when one lives;

She’s dead as earth. Lend me a looking-glass;

If that her breath will mist or stain the stone,

Why then she lives.

1 So howls a distraught and apparently deranged King Lear as he carries the lifeless body of his youngest daughter, Cordelia, across the stage and then gently lays her on the ground. He then cradles her.

A plague upon you, murderers, traitors all!

I might have saved her; now she’s gone for ever.

Cordelia, Cordelia, stay a little. Ha!

What is’t though sayest? Her voice was ever soft,

Gentle and low, an excellent thing in woman.

I killed the slave that was a-hanging thee.

2 In the Sydney Theatre Company (STC) production of this famous Shakespearian tragedy, performed at the Roslyn Packer Theatre in Sydney in late 2015 and early 2016, King Lear was played by one of Australia’s most celebrated actors, Mr Geoffrey Rush. Cordelia was played by an emerging star of the stage, Ms Eryn Jean Norvill. By all accounts, this production of King Lear was well received, as were the performances by Mr Rush and Ms Norvill. The STC hailed Mr Rush’s return to the STC in its production as one of the highlights of its 2015 season.

3 Well over a year later, however, in the midst of the “Harvey Weinstein scandal” and the worldwide explosion of the phenomenon which later became known as the #MeToo movement, Sydney’s The Daily Telegraph newspaper published what was said to be a “world exclusive” story concerning the behaviour of Mr Rush during the STC production. That story ran on 30 November 2017. It was heralded by a billboard or poster that screamed “GEOFFREY RUSH IN SCANDAL CLAIMS” and “THEATRE COMPANY CONFIRMS ‘INAPPROPRIATE BEHAVIOUR’”.

4 The front page of the 30 November 2017 edition of the Telegraph reproduced the striking, if not somewhat haunting, STC promotional portrait of Mr Rush, made up as the deranged Lear, above the headline “KING LEER”; no doubt an intentional pun. The accompanying story, under another pun-laden headline, “STAR’S BARD BEHAVIOUR”, stated, amongst other things, that Mr Rush had been accused of, but had denied, engaging in “inappropriate behaviour” during the STC’s production of King Lear.

5 The following day’s edition of the Telegraph doubled-down on the story. Under the prominent headline “WE’RE WITH YOU”, the front page story claimed that two STC actors had “spoke[n] out in support of the actress who has accused Oscar winner Geoffrey Rush of touching her inappropriately during the stage production of King Lear”. While the accompanying articles again noted Mr Rush’s denial of the accusation, one of the other STC actors was quoted as saying, “I was in the show. I believe (her)” and the other was quoted as saying, “[i]t wasn’t a misunderstanding. It wasn’t a joke”. The articles characterised Mr Rush’s denials as “acts of defiance”. Unnamed sources were said to have told the Telegraph that they “believed the woman’s claims” and that the STC would not work with Mr Rush again.

6 The Telegraph articles on both days also appeared, directly or indirectly, to link the accusations that were said to have been made against Mr Rush to other cases where prominent movie executives, actors and “show business” personalities, both overseas and in Australia, had been accused of sexual harassment or misconduct. The 30 November 2017 articles were positioned alongside an article concerning allegations that a former “TV personality”, Mr Don Burke, had been accused of being, amongst other things, a “sexual predator”. One of the 1 December 2017 articles alluded to what was, by that time, the notorious “Harvey Weinstein scandal” and the almost equally notorious accusations of sexual misconduct that had been made against the actor, Mr Kevin Spacey.

7 Mr Rush sued the Telegraph’s publisher, Nationwide News Pty Limited, and the main author of the stories, Mr Jonathon Moran. Mr Rush alleges that the publications conveyed a number of defamatory imputations, including, in summary, that: he had engaged in scandalously inappropriate behaviour in the theatre; he had engaged in inappropriate behaviour of a sexual nature in the theatre; he had committed sexual assault in the theatre; he was a pervert; and he had behaved as a sexual predator and had inappropriately touched an actor while working on the STC’s production of King Lear. Mr Rush claims that the articles published by Nationwide and Mr Moran had brought him into “hatred, ridicule and contempt”, that he has been “gravely injured in his character and reputation as an actor” and that he has “suffered hurt and embarrassment and ha[d] suffered and will continue to suffer loss and damage”. He claims damages, including aggravated damages and special damages for economic loss running into the millions of dollars.

8 Nationwide and Mr Moran defended the proceeding. They allege that the publications did not convey the alleged imputations. They also claim that, in any event, all but one of the imputations that Mr Rush claims were conveyed by their publications were substantially true. In their defence, they maintained that Mr Rush had in fact engaged in scandalously inappropriate behaviour of a sexual nature in the theatre, that he had in fact committed sexual assault in the theatre, that he was in fact a pervert, that he had in fact behaved as a sexual predator and that he had inappropriately touched an actor while working on the STC’s production of King Lear. Their contentions were based on claims that Mr Rush had, during the production of King Lear, amongst other things, made lewd gestures and acted in a sexually inappropriate and predatory manner towards Ms Norvill, that he had intentionally touched one of Ms Norvill’s breasts during one of the preview performances, and that he had touched Ms Norvill’s lower back as he was about to carry her on stage during the final scene in the play.

9 Nationwide and Mr Moran also claim that, even if Mr Rush was defamed, he is not entitled to aggravated damages or any damages in respect of economic loss.

10 The issues raised by this case are relatively easy to identify. They are not, however, so easy to resolve.

11 The first issue is whether the poster and the articles published on 30 November and 1 December 2017 conveyed the imputations that Mr Rush alleges they did. If none of the alleged imputations were conveyed, Mr Rush’s case must fail and judgment would have to be entered for Nationwide and Mr Moran.

12 As is so often the case in defamation matters involving the media, the poster and the relevant articles for the most part did not expressly or literally state the defamatory meanings that Mr Rush contends they in fact conveyed. For example, the articles did not, in terms, state that Mr Rush was a “pervert” or had behaved as a “sexual predator”. The issue is whether the articles nevertheless would have conveyed those meanings to the ordinary reasonable reader. Would the ordinary reasonable reader in the circumstances have “read between the lines” and concluded that the articles read as a whole were implying or imputing those very meanings?

13 The second issue only arises if it is found that the poster and articles conveyed one or more of the alleged imputations. The issue, in those circumstances, is whether the imputations found to have been conveyed were substantially true as contended by Nationwide and Mr Moran. Importantly, Nationwide and Mr Moran bore the onus of proving the substantial truth of the imputations that were conveyed. To resolve this issue, it is necessary to carefully and dispassionately consider and assess the often conflicting evidence adduced by Nationwide and Mr Moran, on the one hand, and Mr Rush, on the other, concerning Mr Rush’s behaviour towards Ms Norvill during the STC’s production of King Lear. Did, for example, Mr Rush do anything, or act in any way, so as to justify the assertion that he was a “pervert”, or had engaged in “inappropriate behaviour of a sexual nature”, or had inappropriately touched Ms Norvill during the production of King Lear?

14 The third issue concerns the loss and damage that Mr Rush claims he has suffered by reason of the defamatory publications. This issue, of course, only arises if it is found that one or more of the imputations was conveyed and Nationwide and Mr Moran cannot demonstrate that they were substantially true.

15 The issue of damages involves three elements. The first element concerns the assessment of the appropriate amount of money to compensate Mr Rush for the personal distress and hurt caused to him by the publication of the defamatory imputations and to vindicate his reputation. The second element involves determining whether Mr Rush is entitled to aggravated compensatory damages arising from any improper or unjustifiable conduct by Nationwide and Mr Moran, including in their conduct of this proceeding, which increased the subjective hurt suffered by Mr Rush. The third, and perhaps most difficult, element involves determining whether Mr Rush suffered a financial or economic loss by reason of the defamatory publications and, if so, determining what that loss was or is.

16 The trial commenced on 22 October 2018 and concluded on 9 November 2018.

17 Mr Rush gave evidence. He also called a number of witnesses in support of his case. In response to Nationwide and Mr Moran’s truth defence, he called evidence from the director of the STC’s production of King Lear, Mr Neil Armfield AO and two actors who performed in the play: Ms Robyn Nevin AM and Ms Helen Buday. Mr Armfield, Ms Nevin and Ms Buday gave evidence about Mr Rush’s reputation, as did a number of other witnesses called in Mr Rush’s case: his wife, Ms Jane Menelaus, Mr Trevor Smith, Ms Robyn Kershaw, Ms Margaret O’Bryan, Mr Simon Phillips, Mr John Gaden AO and Ms Judith Davis. He adduced expert opinion evidence relating to his economic loss claim from three witnesses who were highly experienced in the movie and entertainment industry: Mr Fred Schepisi AO, Mr Fred Specktor and Ms Robyn Russell. He also adduced evidence relating to the quantification of his economic loss claim from a forensic accountant, Mr Michael Potter.

18 Nationwide and Mr Moran’s principal witness in support of their truth defence was Ms Norvill. They also adduced evidence on that issue from another actor who appeared in King Lear, Mr Mark Winter. Finally, they tendered expert opinion evidence in response to Mr Rush’s claim for economic loss. That evidence came from Mr Richard Marks, an entertainment attorney, and Mr Tony Samuel, a forensic accountant.

19 Before addressing the three key issues which have just been highlighted, it is necessary to identify the relevant publications and the imputations that Mr Rush contends were conveyed by them.

The DEFAMATORY matters complained of

20 Section 8 of the Defamation Act 2005 (NSW) provides that a person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the “matter”. As has already been noted, Mr Rush’s claim concerns three publications, or “matters complained of”, each of which he contends contained numerous defamatory imputations.

The first matter complained of – The poster

21 The first matter complained of was a poster which was distributed for display outside newsagencies throughout New South Wales and the Australian Capital Territory on 30 November 2017. The poster advertised a story which appeared in the Telegraph that day. It contained the words: “World Exclusive Geoffrey Rush in Scandal Claims” and “Theatre Company Confirms ‘Inappropriate Behaviour’”.

22 The poster is reproduced in Schedule 1 to these reasons.

The second matter complained of – The 30 November 2017 articles

23 The second matter complained of was a series of articles published in the Telegraph on 30 November 2017. Those articles appeared on the front page and pages four and five of the Telegraph. The substance of the articles was also published on the Telegraph’s website and tablet “app”.

24 The front page of the Telegraph published on 30 November contained a large head and shoulders photograph of Mr Rush apparently made up in the character of King Lear. The photograph appeared above a large headline: “KING LEER”, and the smaller headline: “WORLD EXCLUSIVE Oscar-winner Rush denies ‘inappropriate behaviour’ during Sydney stage show”.

25 The text of the article on the front page of the Telegraph on 30 November 2017 was as follows:

OSCAR winning Australian actor Geoffrey Rush has been accused of “inappropriate behaviour” during Sydney Theatre Company’s recent production of King Lear.

However, Rush – through his lawyers – last night vigorously denied the claims. The Sydney Theatre Company told The Daily Telegraph it “received a complaint alleging that Mr Geoffrey Rush had engaged in inappropriate behaviour”. “The Company received the complaint when Mr Rush’s engagement with the Company had ended,” it said. “The Company continues to work with the complainant to minimise the risk of future instances of the alleged behaviour occurring in its workplace.”

Mr Rush’s lawyers said he had “not been approached by the Sydney Theatre Company, the alleged complainant nor any representative of either”. “Further, he has not been informed by them of the nature of the complaint and what it involves,” a statement from HWL Ebsworth Lawyers said.

“If such a statement has been issued by the STC it is both irresponsible and highly damaging.”

26 The story concerning Mr Rush occupied almost all of the front page. Three shorter unrelated stories appeared down the left-hand side of the page.

27 The front page of the Telegraph on 30 November 2017 is reproduced in Schedule 2 to these reasons.

28 The articles concerning Mr Rush continued on pages four and five of the newspaper. Pages four and five faced each other so as to form a two page spread devoted to the story.

29 Page four contained a large headline: “STAR’S BARD BEHAVIOUR”, below a smaller headline continuing across both pages stating: “Oscar-winner Geoffrey Rush denies complaint made in Sydney Theatre Shakespeare production”. Below the headline was a large photograph of Mr Rush when he received his Academy Award and smaller photographs of Mr Rush in character in Twelfth Night and as Einstein in the television series, Genius, as well as a photograph of Mr Rush shaking hands with Governor-General Peter Cosgrove when he received his Order of Australia.

30 The text of the article on page four was as follows:

OSCAR-winning Australian actor Geoffrey Rush has been accused of “inappropriate behaviour” during the Sydney Theatre Company’s recent production of King Lear.

But the star vigorously denies the allegations and says the company has never told him of any allegations of wrong doing.

The Daily Telegraph can today reveal that one of the country’s most successful actors was the subject of a complaint during the production of King Lear.

It is understood the allegations of inappropriate behaviour occurred over several months. The local production of the classic William Shakespeare play ran from November 2015 to January 2016 at the Roslyn Packer Theatre.

There were also several months of rehearsals.

“Sydney Theatre Company received a complaint alleging that Mr Geoffrey Rush had engaged in inappropriate behaviour,” a spokeswoman said to The Daily Telegraph.

“The Company received the complaint when Mr Rush’s engagement with the Company had ended. The Company continues to work with the complainant to minimise the risk of future instances of the alleged behaviour occurring in its workplace.

“The complainant has requested that their identity be withheld.

“STC respects that request and for privacy reasons, will not be making any further comments.”

In a strongly worded legal letter, lawyers for Rush at HWL Ebsworth last night said he had never been involved in any “inappropriate behaviour” an that his “regard, actions and treatment of all the people he has worked with has been impeccable beyond reproach.

“Mr Rush has not been approached by the Sydney Theatre Company and the alleged complainant nor any representative of either of them concerning the matter you have raised,” the letter states.

“Further, he has not been informed by them of the nature of the complaint and what it involves.”

The letter from the legal firm’s partner Nicholas Pullen goes on to say that Rush has not been involved with the Sydney Theatre Company or its representatives for a period of more than 22 months.

“In the circumstances, if such a statement has been issued by the STC it is both irresponsible and highly damaging to say the least.

“Your ‘understanding’ of what has occurred is, with the greatest respect, simply fishing and unfounded.

31 The article concerning Mr Rush occupied almost all of page four save for a short article at the foot of the page concerning the New South Wales government’s recycling scheme.

32 Page four of the Telegraph on 30 November 2017 is reproduced in Schedule 3 to these reasons.

33 Page five contained another large photograph of Mr Rush and a smaller photograph showing Mr Rush in character as King Lear. At the top of the page, in larger typescript than was used in the body of the article, statements made by an “STC spokeswoman” and “[l]awyer for Rush, Nicholas Pullen” were quoted. The STC spokeswoman is recorded as having said: “Sydney Theatre Company received a complaint alleging that Mr Geoffrey Rush had engaged in inappropriate behaviour”. Mr Rush’s lawyer is recorded as having said: “It does not warrant comment except that it is false and untrue”.

34 The text of the article on page five was as follows:

“It does not warrant comment except that it is false and untrue.”

Rush has worked with the STC many times – both acting and directing productions like Uncle Vanya, Oleanna, The Importance of Being Ernest, You Can’t Take It With You, King Lear and The Government Inspector.

Rush won the Academy Award for Best Actor in 1996 for his role as David Helfgott in the movie Shine and was nominated for the best supporting actor role two years later for Shakespeare in Love.

His other Oscar nominations include best actor in 2000 film Quills and for The King’s Speech in 2011 in the same category.

He has found fame for becoming one of the few people to have won acting’s “Triple Crown” – the Academy Award, the Primetime Emmy Award and the Tony Award.

The 66-year-old married father-of-two and Melbourne resident is also the president of the Australian Academy of Cinema Television and Arts and is expected to attend the annual AACTA Awards at The Star Event Centre next week.

35 The article concerning Mr Rush occupied most, but not all, of page five. The layout of page five was such that the article concerning Mr Rush appeared in a box. Two smaller articles appeared outside the box. Importantly, however, another article appeared inside the same box as the article concerning Mr Rush. That article concerned allegations of sexual assault that had been levelled at the former “TV personality”, Mr Don Burke. The text of that article, which appeared under the small headline, “Service to counsel affected Nine staff”, was as follows:

CHANNEL Nine has opened an independent counselling service following allegations this week of sexual assault by former TV personality Don Burke as the network’s boss Hugh Marks addresses staff for the first time, saying “we cannot rewrite history”.

A new phone line was set up yesterday to allow people to report instances of past behaviour they would like addressed.

“Former Nine employees with complaints can provide their personal contact details and HR will follow up directly on a strictly confidential basis,” Nine said in an email to staff.

The counselling will be provided at no cost to them, Nine said, and will support the person to “work through any issues that relate to their time” at Nine.

Mr Marks, meanwhile, told staff that allegations of harassment and misconduct by Burke was “appalling”, vowing to deal with misconduct, harassment, discrimination and bullying issues “effectively”.

Burke returned to Nine’s A Current Affair, this week where he admitted to behaving like a bullying tyrant, and having “a number of affairs”, but cannot remember “exact things I did 20 years ago”.

He has been described as a “sexual predator” and “psychotic bully” during the 17-year run of Burke’s Backyard. Speaking to ACA host Tracy Grimshaw, he claimed to be a victim of a “witch hunt” ignited by the Harvey Weinstein scandal.

36 As will be seen, Mr Rush contends that, in considering the imputations that were conveyed by the 30 November 2017 articles, it is relevant to have regard to the positioning and content of the article concerning Mr Burke.

37 Page five of the Telegraph on 30 November 2017 is reproduced in Schedule 4 to these reasons.

The third matter complained of – The 1 December 2017 articles

38 The third matter complained of is a series of articles, published in the Telegraph on 1 December 2017. Those articles appeared on the front page and pages four and five. The articles were also substantially published on the Telegraph’s website and tablet app.

39 The front page of the Telegraph on 1 December 2017 contained a banner headline: “UNSCRIPTED DRAMA: THE OSCAR STAR SCANDAL”, above a very large headline: “WE’RE WITH YOU”, and a smaller headline: “Theatre cast back accuser as Rush denies ‘touching’”. The front page also included a large photograph of the actor, Mr Meyne Wyatt, alongside the words, apparently attributed to Mr Wyatt: “I was in the show. I believe (her)”.

40 The text of the article on the front page was as follows:

TWO Sydney Theatre Company actors yesterday spoke out in support of the actress who has accused Oscar winner Geoffrey Rush of touching her inappropriately during the stage production of King Lear.

Rush – one of Australia’s biggest stars – was yesterday continuing to vehemently deny the claims.

Meyne Raoul Wyatt, who also appeared in King Lear, said he believed the allegations. “I believe (the person who) has come forward. It’s time for Sydney Theatre Company and the Industry in Australia and worldwide as a whole to make a stand,” Wyatt said.

And Brandon McClelland, who has worked alongside the actress, urged others to believe the complaints. “It wasn’t a misunderstanding,” he said.

Two STC sources said the company stood by her claims. Both said the company wouldn’t work with Rush again. Despite denials, Rush was told who made the claims in a phone call with executive director Patrick McIntyre weeks ago. Mr McIntyre last night said the STC had “reviewed policies” about “inappropriate behaviour”.

41 The story concerning Mr Rush occupied almost all of the front page. Three smaller unrelated stories appear at the very foot of the page.

42 The front page of the Telegraph on 1 December 2017 is reproduced in Schedule 5 to these reasons.

43 Pages four and five of the Telegraph on 1 December 2017, which again appeared as a double page spread, contained a series of articles all of which related, in one way or another, to the allegations made against Mr Rush. Spread across the top of both pages was a large headline: “ACTS OF DEFIANCE”. Appearing under that headline were extracts from social media “posts” by Mr Wyatt and another actor, Mr Brandon McClelland. Mr Wyatt and Mr McClelland were pictured alongside short descriptions of their acting careers.

44 Mr Wyatt’s post, as portrayed in the articles, was:

I was in the show. I believe whoever has come forward. It’s time for Sydney Theatre Company and the industry in Australia and worldwide as a whole to make a stand on this behaviour!!!

45 Two lines of Mr Wyatt’s post were blacked-out or redacted.

46 Mr McClelland’s post or “tweet”, as reproduced in the articles, was:

It wasn’t a misunderstanding. It wasn’t a joke.

47 The article which accompanied the social media posts of Mr Wyatt and Mr McClelland appeared under the headline: “Sydney Theatre Company actors support complainant’s claims against megastar Rush”. The text of that article was as follows:

TWO actors who work with the Sydney Theatre Company yesterday publicly threw their support behind the actress who has accused Oscar-winner Geoffrey Rush of touching her inappropriately during the stage production of King Lear.

It comes as Rush – one of the country’s most successful actors – was yesterday continuing to vehemently deny claims he inappropriately touched a cast member of the local production of the classic William Shakespeare play.

Rising young actor Meyne Raoul Wyatt, who appeared in King Lear, said he believed his castmate’s version of events.

“I was in the show,” Wyatt, who has also starred in Neighbours and Redfern Now, wrote on Facebook yesterday after The Daily Telegraph broke the story.

“I believe (the person who) has come forward. It’s time for Sydney Theatre Company and the industry in Australia and worldwide as a whole to make a stand on this behaviour!!!”

And Brandon McClelland, who has worked alongside the woman at the centre of the alleged complaint and is in the company’s current production of Three Sisters, urged others on Twitter to believe the actress.

“It wasn’t a misunderstanding. It wasn’t a joke,” he posted.

McClelland’s tweet was also reposted by several other Sydney theatre actors as the story dominated social media yesterday.

The STC production of King Lear ran from November 2015 to January 2016.

The 66-year-old acting legend yesterday said he “immediately phoned and spoke to senior management” at the STC when he became aware of rumours there was a complaint.

But he said the STC refused to give him any details.

“They refused to illuminate me,” he said through a statement.

“I also asked why this information was being withheld, and why, according to standard theatre practice, the issue had not been raised with me during the production via stage management, the director, my fellow actors or anyone at management level.

“However, no response was forthcoming.”

Rush’s lawyer Nicholas Pullen said it was a “great disappointment” that the STC had “chosen to smear his name and unjustifiably damage his reputation”.

“Not to afford a person their right to know what has been alleged against them, let alone not inform them of it but release such information to the public, is both a denial of natural justice and is not how our society operates,” he said.

The actor’s lawyer, a partner in legal firm HWL Ebsworth, said Rush “abhorred any form of maltreatment of any person”.

“Until there is the decency afforded to Mr Rush of what the ‘inappropriate behaviour’ actually is then there is nothing more that can be said at this stage.” Mr Pullen said.

Two sources who spoke to The Daily Telegraph yesterday said Rush was made aware who made the claims in a conversation with executive director Patrick McIntyre three weeks ago.

The sources said they believed the woman’s claims.

And they said the STC would not be working with Rush again. That’s despite the veteran actor having worked with the company both acting and directing productions such as Uncle Vanya, Oleanna, The Importance Of Being Ernest and The Government Inspector.

A new statement from the STC yesterday said it had responded “truthfully” after being approached by The Daily Telegraph earlier this week.

It also clarified the anonymous nature of the alleged complainant, who had “requested the matter be dealt with confidentially, and did not want Mr Rush notified”.

“STC complied, acting in the interest of the complainant’s health and welfare.” Mr McIntyre last night said the STC had “reviewed policies and procedures” including “educating actors when they come in to the company about our intolerance of inappropriate behaviour, who they should speak to and encouraging them to speak up”.

48 Extracts from statements made by Mr Rush and the STC also appeared under the “ACTS OF DEFIANCE” headline. The extract from Mr Rush’s statement was as follows:

The moment I became aware of rumours of a complaint I immediately phoned and spoke to senior management at the Sydney Theatre Company asking for clarification about the details of the statement. They refused to illuminate me with the details … I also asked why this information was being withheld, and why, according to standard theatre practice the issue had not been raised with me during the production via stage management, the director, my fellow actors or anyone at management level. However, no response was forthcoming.

49 The extract from the STC’s statement was as follows:

Sydney Theatre Company was asked by a News Corp journalist earlier this month whether it had received a complaint alleging inappropriate behaviour by Mr Rush while he was employed by the company. STC responded truthfully that it had received such a complaint.

50 On the left-hand side of page four, a separate article appeared under the headline: “HR overhaul to lift curtain on bad deeds”. The text of that article was as follows:

THE Sydney Theatre Company has revised its HR policies in a bid to ensure it maintains a safe environment for staff.

Executive director of the STC Patrick McIntyre (below) said it was important actors feel safe to speak up and believes maintenance of confidentiality to be key.

“We have reviewed policies and procedures in place and that includes educating actors when they come in to the company about our intolerance of inappropriate behaviour, who they should speak to and encouraging them to speak up,” Mr McIntyre said.

Mr McIntyre’s comments come after the STC confirmed it had received a complaint by a staff member over allegations of “inappropriate behaviour” by Oscar winner Geoffrey Rush. Rush vehemently denies any wrongdoing.

Mr McIntyre stressed that he and the executive team at the theatre company have a duty of care to ensure all staff feel safe and respected in the workplace.

“This isn’t about creating drama and blame but if everyone holds each other accountable, we create the kind of workplace we all want to be in,” he said. More broadly, Mr McIntyre suggested it is a wideranging issue for the industry to address in the wake of the Harvey Weinstein scandal.

“Many still view that speaking up comes with adverse repercussions,” he explained.

“This is a trust issue that the industry needs to work towards resolving and the observance of confidentiality is key to this. If people don’t trust us with their stories, they won’t speak up.”

The HR overhaul follows preliminary findings of an Actors Equity survey aimed at theatre actors which found that 40 per cent of respondents claimed they had directly experienced sexual harassment, bullying or misconduct.

Oscar winner Kevin Spacey became embroiled in the ongoing controversy rocking the entertainment industry with numerous victims coming forward – including 20 complaints from his time as artistic director at London’s Old Vic Theatre between 2004 and 2015.

A law firm’s investigation into allegations about Spacey stated: “Despite having the appropriate escalation processes in place, it was claimed that those affected felt unable to raise concerns and that Spacey operated without sufficient accountability.”

51 A photograph of the Old Vic Theatre in London appeared above the article. That photograph was obviously included because the article referred to complaints having been made against Mr Spacey arising from his time as artistic director at that theatre.

52 The following article appeared at the foot of page four under the headline: “Statement for acting veteran blasts STC ‘smear’”:

MANAGEMENT for Oscar-winning actor Geoffrey Rush issued a comprehensive statement yesterday denying allegations of “inappropriate behaviour” during the 66-year-old veteran actor’s time with the Sydney Theatre Company’s production of King Lear.

The statement, following The Daily Telegraph’s exclusive report yesterday, took aim at the Sydney Theatre Company, alleging that it had “chosen to smear his name and unjustifiably damage his reputation”.

It also claimed that: “His treatment of fellow colleagues and everyone he has worked with is always conducted with respect and the utmost propriety.

“The allegation made against Mr Rush comes from a statement provided by the Sydney Theatre Company,” it reads.

The widely released document says it is understood that the STC’s own statement concerns a complaint made to it more than 21 months ago.

“To date, Mr Rush or any of his representatives have not received any representations from the STC or the complainant.

“In other words, there has been no provision of any details, circumstances, allegations or events that can be meaningfully responded to.”

It goes on to quote Mr Rush:

“The moment I became aware of rumours of a complaint I immediately phoned and spoke to senior management at the Sydney Theatre Company asking for clarification about the details of the statement.

“They refused to illuminate me with the details.”

The statement then says Mr Rush can only reiterate that he denies being involved in any “inappropriate behaviour” whatsoever.

53 Two smaller articles relating to Mr Rush also appeared at the foot of page five. The first of those articles, which appeared under the headline: “THEATRE’S FIRM STATE OF PLAY”, was in the following terms:

THE Sydney Theatre Company yesterday confirmed it responded “truthfully” when asked if it had received a complaint alleging inappropriate behaviour by leading Australian actor Geoffrey Rush.

In an updated statement, the STC said it “was asked by a News Ltd journalist earlier this month whether it had received a complaint alleging inappropriate behaviour by Mr Rush while he was employed by the company. STC responded truthfully that it had received such a complaint.”

It also clarified the alleged complainant had “requested the matter be dealt with confidentially, and did not want Mr Rush notified or involved” in any inquiry.

“STC complied, acting in the interest of the complainant’s health and welfare. As already stated, the Company received the complaint after Mr Rush’s engagement had ended.”

54 The other article, which appeared under the headline: “Execs’ exile for star”, and alongside a photograph of Mr Rush in character in the film, Pirates of the Caribbean, was in the following terms:

EXECUTIVES at the Sydney Theatre Company yesterday came forward in support of the woman at the heart of the Geoffrey Rush scandal, saying they wholeheartedly believe her claims.

They also said due to the seriousness of the allegations, the award-winning theatre company would not work with the Pirates of the Caribbean star again. “There is no chance,” the source told The Daily Telegraph. “How could we work with him again? That question doesn’t even need an answer.”

The executive added: “Another actor backed what she said … we’ve taken this very seriously.”

The source also defended not naming the woman, saying: “It is not our story to tell.”

A high-profile actor, who did not want to be named, came forward to support the woman.

55 Pages four and five of the Telegraph on 1 December 2017 are reproduced in Schedules 6 and 7.

THE ALLEGED DEFAMATORY IMPUTATIONS

56 As has already been noted, Mr Rush alleges that each of the three matters complained of carried a number of different defamatory imputations.

Imputations allegedly conveyed by the poster

57 Mr Rush claims that the poster conveyed the following two defamatory meanings or imputations:

(a) Mr Rush had engaged in scandalously inappropriate behaviour in the theatre.

(b) Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre.

58 Mr Rush also alleges that, by reason of certain “extrinsic facts”, the poster conveyed two further defamatory imputations, being:

(a) Mr Rush had committed sexual assault in the theatre.

(b) Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre.

59 The particulars of the alleged extrinsic facts pleaded by Mr Rush are as follows:

(a) Mr Rush is a famous Australian Hollywood actor.

(b) In the weeks preceding the publication of the first matter complained of, a number of famous actors and movie and television executives, including in Hollywood, had been portrayed in the media and on social media as sexual predators who had committed acts of sexual assault and/or sexual harassment.

(c) In the weeks preceding the publication of the first matter complained of, famous Hollywood film producer Harvey Weinstein had been portrayed as a sexual predator who had committed acts of sexual assault and/or sexual harassment.

(d) In the weeks preceding the publication of the first matter complained of, famous Hollywood actor Kevin Spacey had been portrayed as a sexual predator who had committed acts of sexual assault and/or sexual harassment.

(e) In the days preceding the publication of the first matter complained of, Australian television personality Don Burke was portrayed by the media as being a sexual predator.

(f) Each of the facts set out in (a)-(e) above were notorious facts.

(g) Readers of the first matter complained of were aware of the facts set out in (a)-(e).

60 Nationwide and Mr Moran deny that the poster conveyed any of the alleged imputations, either in its natural and ordinary meaning, or with the aid of the alleged extrinsic facts or otherwise.

Imputations allegedly conveyed by the 30 November 2017 articles

61 Mr Rush alleges that the 30 November 2017 articles conveyed the following defamatory imputations:

(a) Mr Rush is a pervert.

(b) Mr Rush behaved as a sexual predator while working on the STC’s production of King Lear.

(c) Mr Rush engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear.

(d) Mr Rush, a famous actor, engaged in inappropriate behaviour against another person over several months while working on the STC’s production of King Lear.

62 Mr Rush also alleges, in the alternative, that the 30 November 2017 articles conveyed those four defamatory imputations by reason of the same extrinsic facts referred to earlier in the context of the poster.

63 Nationwide and Mr Moran deny that the 30 November 2017 articles conveyed any of the alleged imputations, either in their natural and ordinary meaning, or with the aid of the alleged extrinsic facts or otherwise.

Imputations allegedly conveyed by the 1 December 2017 articles

64 Mr Rush alleges that the 1 December 2017 articles conveyed the following defamatory imputations:

(a) Mr Rush had committed sexual assault while working on the STC’s production of King Lear.

(b) Mr Rush behaved as a sexual predator while working on the STC’s production of King Lear.

(c) Mr Rush engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear.

(d) Mr Rush, an acting legend, had inappropriately touched an actress while working on the STC’s production of King Lear.

(e) Mr Rush is a pervert.

(f) Mr Rush’s conduct in inappropriately touching an actress during King Lear was so serious that the STC would never work with him again.

(g) Mr Rush had falsely denied that the STC had told him the identity of the person who had made a complaint against him.

65 Mr Rush also alleges, in the alternative, that the 1 December 2017 articles conveyed those seven defamatory imputations by reason of the extrinsic facts referred to earlier.

66 Nationwide and Mr Moran deny that the 1 December 2017 articles conveyed any of the alleged imputations, either in their natural and ordinary meaning, or with the aid of the alleged extrinsic facts or otherwise.

ISSUE ONE: Were the imputations conveyed by the matters complained of?

67 Nationwide and Mr Moran ultimately conceded that if the relevant publications conveyed the imputations alleged by Mr Rush, they were defamatory of him. That concession was properly made. Plainly the imputations, if conveyed, would have tended to lower Mr Rush’s reputation in the opinion of right thinking members of the community: cf. Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638-639.

68 The critical question is whether the imputations were conveyed as alleged by Mr Rush.

69 The publications did not directly or literally state that Mr Rush had engaged in scandalously inappropriate behaviour in the theatre; that he had engaged in inappropriate behaviour of a sexual nature in the theatre; that he had committed sexual assault in the theatre; that he was a pervert; or that he had behaved as a sexual predator and had inappropriately touched an actress while working on the STC’s production of King Lear. But did the publications nonetheless convey some or all of those meanings to the ordinary reasonable reader? Would the ordinary reasonable reader have “read between the lines” and understood that those meanings were implied or imputed by the publications?

Relevant principles

70 The principles to be applied in determining whether a publication conveyed defamatory imputations are well settled and were not significantly in issue in this proceeding. The lead authorities and the principles established by them were summarised by Hunt CJ at CL (with whom Mason P and Handley JA agreed) in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164-165, and were more recently considered in this Court by White J in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at [63]-[73]; see also Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [14]-[27]. The basic principles were also recently considered by the High Court in Trkulja v Google LLC (2018) 356 ALR 178 at [30]-[32] in the context of an appeal from the summary dismissal of a defamation action.

71 It is, for the most part, unnecessary to discuss or even cite all the well-known authorities. The basic principles relevant to this case may be summarised as follows.

The “ordinary reasonable person” and the “natural and ordinary” meaning

72 First, the applicant, here Mr Rush, bears the onus of proving, on the balance of probabilities, that the alleged defamatory meanings or imputations were conveyed by the publication in question.

73 Second, the question of whether the defamatory meanings were in fact conveyed is a question of fact.

74 Third, the relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person. Where, as here, the publications are in writing, the question is what the words used would have conveyed to the ordinary reasonable reader. The Court is required to put itself in the shoes of, or assume the role of, the ordinary reasonable reader. The question is not a question of construction of the words used in the article in the legal sense.

75 Fourth, in this context the authorities ascribe the ordinary reasonable reader with certain character traits, qualities or characteristics. The ordinary reasonable reader is variously said to be of fair to average intelligence, experience and education. The ordinary reasonable reader is also taken to be fair-minded and neither perverse, morbid nor suspicious of mind, nor “avid for scandal”. Of course, as the High Court pointed out in Trkulja at [31], ordinary men and women in fact have different temperaments, outlooks, degrees of education and life experience, so the exercise is really one of “attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning”.

76 Fifth, the meaning that the words would convey to the ordinary reasonable reader is often called “the natural and ordinary meaning” of the words. In some cases, the natural and ordinary meaning of the words may be obvious from the direct or literal meaning of the words themselves. More often than not, however, the question turns on what implications or imputations the ordinary reasonable reader would understand were conveyed by the words.

77 Sixth, in determining what implications or imputations the ordinary reasonable reader would understand or draw from the words, the authorities suggest that the ordinary reasonable reader should generally be taken to approach or consider a publication in a particular way or ways. The ordinary reasonable reader is, for example, said not to be a lawyer who examines the publication overzealously, but rather someone who views the publication casually and is prone to a degree of “loose thinking”. The ordinary reasonable reader also apparently does not live in an “ivory tower” but can and does “read between the lines” in light of their general knowledge and experience of worldly affairs. While they do not search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would. While they read the entire publication and consider the context as a whole, they take into account emphasis that may be given by conspicuous headlines or captions.

78 Seventh, the mode or manner of publication can be a relevant matter in determining what was conveyed to the ordinary reasonable reader. The ordinary reasonable reader of a book, for example, is likely to read it with more care than he or she would read an article in a newspaper, particularly if that article is sensational. The ordinary reasonable reader of such an article is more prone to engage in loose thinking. That is all the more so where the words which are published are imprecise, ambiguous, loose, fanciful or unusual.

79 Eighth, as already adverted to, each alleged defamatory imputation has to be considered in the context of the entire publication. It does not follow, however, that each part of the publication must be given equal significance. A headline, for example, may give the reader a predisposition about what follows and may therefore assume particular importance: John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [187]; (2003) 201 ALR 77 at [187]; [2003] HCA 50 at [187] (Callinan J; Gleeson CJ agreeing at [1]; Heydon J agreeing at [219]; see too McHugh J at [26]). Equally, contrary statements in an article will not necessarily or automatically negate the effect of other defamatory statements contained in the article: Rivkin at [26] (per McHugh J) and the cases there cited.

80 Ninth, the meaning that an ordinary reasonable reader would attribute to a publication, or the impression that the reader forms, may be influenced by the overall tone or tenor of the article in question. The article may, for example, be tinged with, or even pregnant with, insinuation or suggestion. It may also implicitly invite the reader to adopt a suspicious approach. As Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137:

It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong.

81 Tenth, the natural and ordinary meaning of words may be either the literal meaning, or an implied or inferred or an indirect meaning based on the general knowledge of the ordinary reasonable reader: Jones v Skelton [1963] 1 WLR 1362 at 1370; [1963] 3 All ER 952 at 958F. General knowledge, in this context, includes ““matters of universal notoriety” – that is to say, matters which any intelligent viewer or reader may be expected to know”: Fox v Boulter [2013] EWHC 1435 (QB) at [16] (citing Lord Mansfield CJ in R v Horne [1775-1802] All ER Rep 390 at 393E). Evidence is not admissible to prove the general knowledge of the ordinary reasonable reader: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506-507.

82 Eleventh, the determination of what an ordinary reasonable reader would read into or imply from the words complained of is often a matter of impression.

83 Twelfth, while a publication may in some cases be reasonably capable of bearing more than one meaning, the tribunal of fact, whether it be a jury or a judge sitting alone, must ultimately determine whether the alleged defamatory meaning was in fact the single natural and ordinary meaning of the words complained of: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173-175: Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 at [34], [47]-[50]; Hockey at [73].

84 Thirteenth, in determining the meaning in fact conveyed by the publication, the intention of the publisher is irrelevant: Lee v Wilson and MacKinnon (1934) 51 CLR 276 at 288 (per Dixon J); Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; 1 WLR 1526 at [24].

85 Fourteenth, the manner in which the publication was actually understood is also irrelevant in determining what meaning was conveyed to the ordinary reasonable reader: Hough v London Express Newspaper, Ltd [1940] 2 KB 507 at 515; [1940] 3 All ER 31 at 35; Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at 301-302. The question is to be determined on the basis of the natural and ordinary meaning of the publication alone.

Investigation, suspicion and guilt

86 A mere statement that a person is being investigated by the police or prosecution agencies, or that a person is suspected of committing a crime, does not necessarily impute guilt. It may convey no more than that there are reasonable grounds to suspect that the person is guilty, or that there are reasonable grounds for investigating whether the person is guilty: Lewis v Daily Telegraph Ltd [1964] AC 234 at 267-268 (per Lord Morris of Borth-y-Gest); Chase v News Group Newspapers Ltd [2002] All ER (D) 20 (Dec); EWCA Civ 1772; [2003] EMLR 218; Flood v Times Newspapers Ltd [2012] 2 AC 273 at [8]; 4 All ER 913 at [8]; Sands v South Australia (2015) 122 SASR 195 at [237]-[240]. The question in such a case is which of the possible meanings was in fact conveyed to the ordinary reasonable reader in all the circumstances. Much will depend on the context, the words used and the information conveyed by the publication considered as a whole.

87 In that context, in Lewis v Daily Telegraph, Lord Devlin said (at 285):

It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.

88 Similarly, in Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 (the facts of which, unlike Lewis v Daily Telegraph, somewhat ironically concerned a publication about a fire), Gleeson CJ, McHugh, Gummow and Heydon JJ said (at [12]):

A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise.

(Emphasis in original. Footnote omitted.)

89 There is no reason to suppose that those principles do not equally apply where the relevant publication concerns a complaint which has been made to, or is being investigated by, a person or body other than the police or the prosecution service.

“Bane and antidote”

90 There may be cases where the relevant publication includes not only defamatory statements (the “bane”), but also contrary statements or conclusions (the “antidote”). The applicable principle in such a case is that if “[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together”: Chalmers v Payne (1835) 2 Cr M & R 156 at 159; (1835) 150 ER 67 at 68; Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 at [16].

91 The question whether defamatory meanings conveyed by statements made in a publication have been removed by other statements in the publication – whether the antidote has overcome the bane – is a question of fact which again must be approached from the perspective of the ordinary reasonable reader. In that context, it must also be noted that the “bane and antidote theory reflects the fundamental proposition [that] the “reader is entitled to give some parts of the article more weight than other parts””: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [146], citing Rivkin at [50] (per McHugh J). It follows that contrary statements or conclusions in a publication will not necessary remove or undo the defamatory meanings otherwise conveyed.

“True innuendo” and extrinsic facts

92 As was noted earlier, Mr Rush contends that, if the alleged imputations did not arise from the natural and ordinary meaning of the words used in the publications, they nevertheless arose in circumstances where the words would have been read in conjunction with certain extrinsic facts. In World Hosts, Mason and Jacobs JJ said (at 641):

When read in conjunction with extrinsic facts, words may, in the law of defamation, have some special or secondary meaning additional to, or different from, their natural and ordinary meaning. This special or secondary meaning is not one which the words, viewed in isolation, are capable of sustaining. It is one which a reader acquainted with the extrinsic facts will ascribe to the matter complained of by reason of his knowledge of those facts because he will understand the words in the light of those facts.

93 Cases where the alleged defamatory imputations are alleged to have been conveyed having regard to the existence of extrinsic facts are said to involve a plea of “true innuendo”. In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, French CJ, Gummow, Kiefel and Bell JJ described a plea of true innuendo in the following terms (at [51]):

When a true innuendo is pleaded evidence may be given of special facts, known to those to whom the matter was published, such as would lead a reasonable person knowing those facts to conclude that the words have another, defamatory, meaning. The essential requirement of the plea is that the matter is not one within the general knowledge of the hypothetical referees.

(Footnotes omitted.)

94 As was made clear in Chesterton, an essential requirement of the plea of true innuendo is that the alleged extrinsic or special facts are not within the general knowledge of those to whom the matter was published. The reason for that requirement is, as has already been noted, matters of general knowledge can in any event be considered in determining whether the alleged imputations were conveyed by the natural and ordinary meaning of the words used in the publication. This was explained by Lord Morris of Borth-y-Gest in Jones v Skelton at 1370-1371:

The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.

95 As also noted earlier, matters of general knowledge are usually “matters of universal notoriety” or “matters which any intelligent viewer or reader may be expected to know”: Fox v Boulter at [16]. Evidence is not admissible to prove the general knowledge of the ordinary reasonable reader: Reader’s Digest at 506. Evidence is, however, admissible to prove special or extrinsic facts.

96 Given Mr Rush’s alternative plea of true innuendo, it is necessary, before considering whether the alleged imputations were conveyed, to briefly address whether the alleged extrinsic facts pleaded by Mr Rush were matters of general knowledge or notoriety, or whether they were facts that it was necessary for Mr Rush to prove.

Were the alleged extrinsic facts generally known or notorious?

97 The approach taken by the parties to this issue was not entirely helpful.

98 Mr Rush’s pleading was somewhat schizophrenic in relation to the way it dealt with the alleged extrinsic facts. That is because the pleading alleged that the so-called extrinsic facts were notorious. As has just been made clear, however, if the facts were notorious, they cannot be extrinsic or special facts for the purposes of a plea of true innuendo.

99 Ultimately, however, the submissions advanced on behalf of Mr Rush made it clear that their primary case was that the alleged imputations were conveyed by the natural and ordinary meaning of the publications. In that context, Mr Rush submitted that the alleged extrinsic facts were notorious facts and matters of general knowledge and that regard could accordingly be had to those facts in determining whether the imputations were so conveyed.

100 Mr Rush’s true innuendo case was pleaded in the alternative. He contended that if the Court did not find that the alleged extrinsic facts were matters of common knowledge, he was entitled to prove, and had proved, that they were nevertheless facts which were known to ordinary readers of the Telegraph. In that regard, Mr Rush tendered two lever-arch folders containing copies of numerous articles, including many published in the Telegraph, which he contended showed that in the weeks preceding the publication of the poster and the 30 November and 1 December 2017 articles, numerous actors and movie and television executives, including Harvey Weinstein, Kevin Spacey and Don Burke, had been portrayed by the media as being sexual predators who had committed acts of sexual assault or sexual harassment. He contended that those extrinsic facts were “special”, in the sense that that they would lead ordinary reasonable readers who knew them to conclude that the words used in the relevant Telegraph publications concerning Mr Rush conveyed the alleged defamatory imputations, even though they may not have been conveyed by the natural and ordinary meaning of the words used in the publications.

101 The position taken by Nationwide and Mr Moran in relation to the alleged extrinsic facts was even less helpful. They did not admit the alleged extrinsic facts, either in their defence or in response to a Notice to Admit Facts served on them by Mr Rush. They did not, however, object to the tender of the two lever-arch folders containing copies of the media articles. More significantly, they did not submit that the articles included in the lever-arch folders did not prove the alleged extrinsic facts. The response given by Nationwide and Mr Moran’s senior counsel, when pressed on that issue in the course of oral submissions, could best be described as noncommittal; it was not conceded that the articles proved the facts, though equally it was not said that they did not. No specific submissions were advanced concerning the content of the articles in the folders. Virtually nothing was said about them.

102 It was almost conceded, somewhat begrudgingly, that it may have been general knowledge that Mr Rush was a “famous Australian Hollywood actor”, though even that apparent concession was hedged by a quibble about the meaning of “Australian Hollywood actor”. It may be noted, in that context, that Mr Rush was repeatedly referred to as an “Oscar winning Australian actor” in the relevant Telegraph publications.

103 The question whether the pleaded extrinsic facts were or were not notorious, or within the general knowledge of the ordinary reasonable reader is, in a sense, rather academic or arcane. If they were, they can be considered in determining whether the natural and ordinary meaning of the words used in the impugned publications conveyed the alleged imputations to the ordinary reasonable reader. If they were not notorious, they can, if proved to be facts known, or likely to be known, to ordinary reasonable readers of the Telegraph, be considered in determining whether the impugned publications conveyed the imputations to those readers, even if they were not conveyed by the natural and ordinary meaning of the words used.

104 Nonetheless, it is necessary to make findings in relation to this issue.

105 In my view, the substance or effect of the pleaded extrinsic facts could be described as having been notorious or matters of general knowledge at the relevant time. It is, in those circumstances, unnecessary for Mr Rush to have recourse to the true innuendo plea.

106 In my view, it may be readily accepted that, by the date of the allegedly defamatory publications, it was generally known by most people who engaged in any way with the print or broadcast media, as well as social media, that in the months preceding the publications serious allegations of sexual harassment or sexual misconduct had been made against a number of prominent actors and movie and television executives. The allegations which had been made against Mr Weinstein were perhaps most notorious, though allegations that had been made against Mr Spacey had also been widely reported. In Australia, it was also widely known that allegations of bullying and harassment, including of a sexual nature, had been made against Mr Burke. The exposure of the claims and allegations against such persons eventually became known collectively as the #MeToo movement, particularly on social media, which had provided a popular public platform for the discussion and exposure of such allegations, particularly in the entertainment industry. Hence the hashtag.

107 It may also be readily accepted that, at the time of the publications, it was widely and generally known, to the point of being notorious, that the famous actors and movie and television actors who had been exposed as having allegedly engaged in such conduct were frequently portrayed in the media, and on social media, as sexual predators who had committed acts or sexual assault and sexual harassment. That was despite the fact that, in many cases, only allegations of such conduct had been made. It was in my view common knowledge throughout much of the world at the time that, as part of the growing public discourse that became the #MeToo movement, Harvey Weinstein and Kevin Spacey were regularly portrayed in the media, and on social media, as sexual predators. The same could be said about Don Burke, at least in Australia.

108 It should be noted, in this context, that Nationwide and Mr Moran initially appeared to accept that the existence of the #MeToo movement, and the underlying allegations of sexual misconduct that were the subject of it, were matters of universal notoriety or general knowledge at the time of the publication of the articles in question. In their Second Further Amended Defence, Nationwide and Mr Moran pleaded the following “background context” to the publications as part of their then pleaded defence of qualified privilege:

29. In the months preceding the publication of the matters complained of:

29.1 There have been widespread reporting in Australia and internationally in relation to allegations of sexual misconduct, bullying and harassment in the entertainment industry which originated with allegations of misconduct by Harvey Weinstein, a powerful Hollywood movie producer and include allegations of misconduct by other men in the entertainment industry including, but not limited to, Kevin Spacey, Dustin Hoffman, Louis CK and Casey Affleck, as well as a report by the Media Entertainment & Art Alliance Actors Equity into widespread sexual harassment in Australian theatre.

29.2 The reporting included allegations to the effect that the misconduct was known in the industry but covered up, silenced or protected.

29.3 The reporting gave rise to a movement commonly referred to as the #MeToo movement which encouraged women who had been subject to sexual misconduct, bullying or harassment to speak out with a view to discouraging such conduct from occurring.

109 Nationwide and Mr Moran ultimately abandoned their defence of qualified privilege and their defence was amended accordingly by striking those paragraphs out. Those paragraphs in the superseded pleading cannot, in those circumstances, be taken to be a concession or admission by Nationwide and Mr Moran that the facts referred to in them were matters of notoriety or general knowledge. That said, they would appear to be a fair reflection of what were, in fact, matters of general knowledge at the relevant time.

110 In any event, even if I am wrong in finding that the pleaded extrinsic facts were matters of notoriety and general knowledge at the time of the publications, I am nevertheless satisfied that the ordinary reader of the Telegraph would have been aware of the extrinsic facts and would have read the relevant publications in the context of that knowledge. As already noted, Nationwide and Mr Moran did not object to the tender of the two lever-arch folders which contained copies of many media articles which had, for the most part, been published in October and November 2017. Many, if not most, of those articles in fact portrayed Harvey Weinstein, Kevin Spacey and a number of other actors and movie and television executives as sexual predators who had committed acts of sexual assault and/or sexual harassment. Many of the articles also portrayed Don Burke as a sexual predator who had committed acts of sexual assault and/or sexual harassment.

111 It is unnecessary to discuss this evidence in any great detail, particularly given the absence of any meaningful submissions from Nationwide and Mr Moran on this issue. It is perhaps sufficient to give some pertinent examples.

The front page of the Telegraph on 20 October 2017 included a “scoop” by Mr Moran which reported that “[v]eteran TV journalist Tracey Spicer claims she has uncovered up to 40 ‘household’ names’ guilty of sexual harassment and assault while working in the nation’s media industry.” Ms Spicer was also reported to have “vowed” in the “wake of the Harvey Weinstein scandal in the US” to “name and shame those in the industry she claims have perpetrated indecent acts on colleagues”.

The 12 October 2017 edition of the Telegraph contained an article under the heading “Gropes of Wrath” which reported that Harvey Weinstein had been accused of raping three women “as a string of stars also alleged he had harassed or assaulted them during decades of predatory behaviour” (emphasis added).

The 31 October 2017 edition of the Telegraph contained an article about Harvey Weinstein which reported that “[m]ore than 70 high-profile women, including actors Ashley Judd, Daryl Hannah and Gwyneth Paltrow” had “come forward with horrifying stories about the disgraced Weinstein’s behaviour”. Some of the women were said to have “accused him of serious misconduct, ranging from harassment to sexual assault and rape”. On the same page (and in the same formatted box) a prominent article reported that Kevin Spacey had been accused of making drunken sexual advances to a 14 year old boy, actor Anthony Rapp, at his Manhattan apartment. It was reported that the allegations were “the latest in a string of high-profile sex scandal[s] to dog Hollywood in recent weeks”.

The digital edition of the Herald Sun on 31 October 2017 included an opinion piece which opined that “Kevin Spacey should be treated exactly the same as serial predator Harvey Weinstein” (emphasis added). The article referred to Kevin Spacey’s “predatory sexual advances”.

An opinion piece in the Telegraph on 1 November 2017 said that “[j]ust as we were coming to terms with the extent of Harvey Weinstein’s predatory behaviour with the list of women allegedly assaulted growing to more than 80, the industry has again been rocked by allegations of sexual misconduct, this time against a child, by much loved and respected Hollywood A-lister, Kevin Spacey” (emphasis added). The piece continued: “[i]n the past, stories about prominent figures were often suppressed but times are changing and the famous and powerful are being named and shamed. That is empowering for genuine victims but it can be terrifying for innocent people who are falsely accused”.

An online edition of The Sydney Morning Herald on 3 November 2017 referred to a production assistant describing Kevin Spacey’s behaviour on set as “predatory”. Mr Spacey’s behaviour was said to have included “non-consensual touching” and “crude comments”.

The 3 November 2017 edition of the Telegraph contained a series of articles, grouped together in a box, all of which dealt with allegations of sexual misconduct by Hollywood actors. One article referred to Dustin Hoffman being “caught up in the Hollywood sex scandal” because he had been accused of “groping a teenager”. Another article reported that Kevin Spacey was facing more accusations of “preying on young men and teenagers” and “grooming and sexual harassment”. The main article on the page, under the headline “YOU ARE A DIRTY RATNER”, reported that “Hollywood’s widening sleaze crisis has now snared director Brett Ratner after six women accused him of sexual misconduct”. The article stated that “Ratner is the latest Hollywood heavyweight to be accused of sexual misconduct following the scandals engulfing Harvey Weinstein, James Toback and Kevin Spacey”.

The 18 November 2017 edition of the Telegraph included a prominent article by Mr Moran which reported that Mr John Jarratt, the “star of one of Australia’s most harrowing horror films has been accused of sexual assault in the wake of the Harvey Weinstein scandal that has engulfed Hollywood”. The article again referred to Tracey Spicer’s investigation and to the fact that the “scandal” surrounding Mr Weinstein had “swiftly spread throughout the industry, leading to allegations against other US personalities, most notably Kevin Spacey and stand-up comedian Louis CK”.

A prominent article in the Telegraph on 27 November 2017 reported that Don Burke had declared “I’m no Harvey Weinstein” after sexual harassment allegations had been made against him. The article referred to a joint ABC/Fairfax investigation which alleged that Don Burke was a “psychotic bully”, a “misogynist” and a “sexual predator” who had sexually harassed and bullied a number of female employees (emphasis added). Mr Burke was said to have linked the attacks on him to the “media outrage” that followed the “outing of the powerful boss Harvey Weinstein as a sexual abuser and harasser”.

The edition of the Telegraph which was published on 28 November 2017 (only a few days before the publication of the articles the subject of this proceeding) contained a front page article about the “Grubby TV gardener”, Don Burke. The article reported that Mr Burke had denied he was a “sexual predator and put down accusations of misconduct from several women as nothing more than a ‘social media witch hunt’.”

Page eight of the Telegraph on the same day contained a prominent story which appeared under a headline which employed a pun that perhaps only a die-hard AC/DC fan would have detected (and which would probably have made Bon Scott and Malcolm Young turn in their graves): “DIRTY DEEDS: DON BURKE CREEP”. The article reported that Don Burke was facing “multiple accusations he used his star power to harass and bully women for years”. It was reported that Mr Burke had said that “in light of the recent domino effect of the Harvey Weinstein saga” his accusers had seen this as a chance to “nail him”.

The digital edition of the Telegraph on the same day also reported that Don Burke had “denied being a sexual predator and a bully” (emphasis added). He claimed to be “a victim of a “witch hunt” ignited by the Harvey Weinstein sexual harassment scandal”.

112 There were many similar articles.

113 I am satisfied on the balance of probabilities that, even if the substance and effect of the pleaded extrinsic facts were not notorious or matters of general knowledge, Mr Rush was entitled to rely on the extrinsic facts in support of his alternative true innuendo plea.

Imputations conveyed by the poster

114 The imputations allegedly conveyed by the poster were that Mr Rush had engaged in scandalously inappropriate behaviour in the theatre and that he had engaged in inappropriate behaviour of a sexual nature in the theatre. Those imputations were alleged to have been conveyed by the natural and ordinary meaning of the words used in the poster, or alternatively by the extrinsic facts. Mr Rush also alleged that, by reason of the extrinsic facts, the poster also conveyed the imputation that Mr Rush had committed sexual assault in the theatre.

Mr Rush had engaged in scandalously inappropriate behaviour in the theatre

115 While denied on the pleadings, Nationwide and Mr Moran ultimately accepted that this imputation would have been conveyed to the ordinary reasonable reader. That concession was hardly surprising given the words used in or on the poster.

Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre

116 The additional element in this imputation is that the “inappropriate behaviour” was “of a sexual nature”. The difficulty for Mr Rush is that the poster does not refer to the nature of the inappropriate behaviour, other than that it was sufficient to amount to a “scandal”. The word “sexual” is not used.

117 Mr Rush submitted that the ordinary reasonable reader would infer or conclude that the “inappropriate behaviour” referenced in the poster was of a sexual nature from the use of the word “scandal”. He contended, in effect, that scandals are almost invariably of a sexual nature. He referred, in that context, to the so-called Profumo affair; a “scandal” which played out in the early 1960s in Britain and involved a sexual relationship between the then Secretary of State for War, Mr John Profumo, and a 19-year-old would-be model.

118 There are at least two difficulties with that argument. First, the Profumo affair or scandal would perhaps only be a notorious fact or a matter of general knowledge amongst persons of a particular vintage (no offence to Mr Rush’s senior counsel is intended) and background. Second, and more fundamentally, not all scandals necessarily involve sexual affairs or behaviour, even if scandals which involve British politicians often do. A scandal is generally considered to be something which involves disgraceful or discreditable actions or circumstances. It is possible to think of many events or occurrences over the years which have been described as scandals, but which do not involve any conduct of a sexual nature. Nationwide and Mr Moran referred to the Watergate scandal in that regard. Closer to home, to give but two examples, the allegations concerning the Australian Wheat Board’s sale of wheat to Iraq in the mid-2000s was described by many as the “oil-for-food scandal”; and the various corruption allegations levelled against former New South Wales politicians, Mr Eddie Obeid and Mr Ian Macdonald, were also generally described as scandals.

119 Mr Rush also submitted that the expression “inappropriate behaviour” is consistent only with some form of sexual misconduct. It is difficult to accept such a broad submission. Much will depend on the context in which the expression is used. Even in a workplace setting, inappropriate behaviour may include conduct which has no sexual component, such as bullying.

120 It is true, as submitted by Mr Rush and discussed earlier, that the natural and ordinary meaning of the words used in the poster must be considered in the context of what was generally known at the time about the #MeToo movement and the allegations of sexual misconduct that had been levelled against a number of well-known figures in the entertainment industry. Even in that context, however, on balance it is doubtful that the words used in or on the poster would have conveyed to the ordinary reasonable reader that Mr Rush had engaged in inappropriate behaviour of a sexual nature.

121 Mr Rush was, of course, a well-known actor. It does not necessarily follow, however, that the ordinary reasonable reader would, without more, necessarily have connected the assertion of “inappropriate behaviour” with the #MeToo movement and, as a result, inferred or concluded that the inappropriate behaviour was sexual in nature. As discussed earlier, the ordinary reasonable reader is taken to be fair-minded and not perverse, morbid nor suspicious of mind or avid for scandal. In those circumstances, the ordinary reasonable reader may have suspected that Mr Rush’s inappropriate behaviour might have been of a sexual nature, but would have been likely to have reserved judgment as to the type of inappropriate conduct allegedly engaged in by Mr Rush until he or she read or learnt more.

122 It follows that I am not persuaded that the poster, in its natural and ordinary meaning, conveyed to the ordinary reasonable reader the imputation that Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre.

123 Nor am I persuaded, on balance, that the poster would have conveyed that imputation to the ordinary reasonable reader in light of the reader’s knowledge of the extrinsic facts relied on by Mr Rush. The reader’s knowledge that other famous actors and movie and television executives had, in very recent times, been portrayed by the media as sexual predators would not necessarily have led the reader to infer or conclude that assertions of inappropriate behaviour engaged in by Mr Rush involved inappropriate behaviour of a sexual nature. The poster did not, either directly or indirectly, portray Mr Rush in such terms, or otherwise connect him to the #MeToo movement and the portrayal of the men exposed by it. While the ordinary reasonable reader may well have suspected that the inappropriate behaviour was of a sexual nature by reason of their knowledge of the extrinsic facts, they would again most likely have reserved their judgment in relation to that issue until they learnt more from reading the article itself.

124 In all the circumstances, I am not positively persuaded that the poster conveyed to the ordinary reasonable reader that Mr Rush had engaged in inappropriate behaviour of a sexual nature in the theatre.

Mr Rush had committed sexual assault in the theatre

125 I have reached the same conclusion in relation to this alleged imputation for essentially the same reasons. I am not satisfied on the balance of probabilities that the poster conveyed the imputation that Mr Rush had committed sexual assault, either in its natural and ordinary meaning, or by reason of knowledge of the extrinsic facts.

Imputations conveyed by the 30 November 2017 articles

126 Mr Rush claimed that the 30 November 2017 articles conveyed four defamatory imputations, either by the natural and ordinary meaning of the words used in them, or by reason of the words read together with the extrinsic facts.

Mr Rush is a pervert

127 The Telegraph articles published on 30 November 2017 did not, in terms, state that Mr Rush was or is a pervert. Indeed, the content of the articles, putting aside headlines, photographs and other contextual considerations, is essentially limited to the assertion that Mr Rush had been accused of “inappropriate behaviour” during the STC’s production of King Lear, that the STC had “received a complaint alleging that [Mr Rush] had engaged in inappropriate behaviour” and that Mr Rush “vigorously denie[d] the allegations” and said that the STC had never told him of any allegations of “wrongdoing”.

128 The factual content of the article, however, must be considered in light of what was, on any view, the striking photograph and headline on the front page, and the main headline to the story on page four. The almost full page photograph on the front page was of Mr Rush wearing a crown or garland of flowers or weeds on his head. His face and hair appear stark and pale white as a result of the application of make-up and his facial expression is one of concern or perhaps even anguish or bewilderment. While it is a head and shoulders photograph, Mr Rush does not appear to be wearing any clothes. The large headline “KING LEER” is emblazoned below the photograph.

129 The combined impact of the photograph and headline is startling, if not, somewhat unsettling. The effect of the pun on the name of the play is to clearly label Mr Rush as someone who leered; who looked at certain people in a sly or lascivious way. When combined with the prominent statement that Mr Rush had denied “inappropriate behaviour” during a Sydney stage show, the clear impression conveyed was that the “inappropriate behaviour” was sexual in nature; that Mr Rush had acted towards the complainant in a lecherous, lewd or licentious manner.

130 The impact of the photograph and headline also left little room for doubt that what the article was saying was that, despite his denials, Mr Rush had in fact engaged in that conduct. It was not simply saying that a complaint had been made against Mr Rush, but that Mr Rush denied it. The clear impression conveyed, in all the circumstances, was that Mr Rush had actually engaged in the conduct the subject of the complaint.

131 The impression conveyed by the photograph and headline on the front page was amplified by at least two features of the article on pages four and five.

132 The first feature of the article on those pages was the prominent headline: “STAR’S BARD BEHAVIOUR”; a pun referencing the fact that Shakespeare is frequently referred to as “The Bard”. The clear impression from this prominent headline was again that, despite his denial, Mr Rush had in fact engaged in bad behaviour; that he had done what had been alleged. The headline did not say: “star’s alleged bard [bad] behaviour”.

133 The second relevant feature of the article on pages four and five relates to the layout. The article concerning Mr Rush, including various photographs and quotes, was presented inside a box. Also positioned inside that box, unlike the other articles on the page, was a story concerning Don Burke. That story concerned allegations of sexual assault that had been made against Mr Burke that week. The alleged sexual assault or assaults had occurred during the time that Mr Burke was the presenter of a television show, Burke’s Backyard, which was aired on Channel Nine. The victim or victims appeared to be “Nine staff”; persons who worked with or for Mr Burke on Burke’s Backyard. In that context, the article referred to Don Burke being described as, amongst other things, a “sexual predator”. Mr Burke, on the other hand, was recorded as having claimed that he was “a victim of a “witch hunt” ignited by the Harvey Weinstein scandal”; an obvious reference to the growing #MeToo movement.

134 The placement of the article concerning Don Burke in the same box as the article concerning Mr Rush suggested that there was some link between the two cases. The obvious link was that Mr Rush’s “inappropriate behaviour” was sexual in nature and was in some way connected to the allegations that had been made against Don Burke, as well as the #MeToo movement and the “Harvey Weinstein scandal”.

135 In all the circumstances, the overall impression conveyed to the ordinary reasonable reader by the 30 November 2017 Telegraph article, considered as a whole, including the headlines, photographs, layout and context, was that Mr Rush was a pervert.

136 Nationwide and Mr Moran submitted that the imputation that Mr Rush is a pervert “is a tortured meaning”. They contended that a “pervert” is someone who, by contemporary standards, is a “sexual deviant”; for example, a “Peeping Tom” or someone who engages in sexual behaviour that would be regarded as not just offensive, but also disgusting and bizarre. In Nationwide and Mr Moran’s submission, it would strain the ordinary everyday use of language to describe a person who engages in sexual harassment as a “pervert”.

137 I disagree.

138 It may be true that dictionary definitions of the word “pervert” tend to involve some form of sexual abnormality or deviance. The Macquarie Dictionary (Seventh edition, 2017), for example, defines a pervert as including “someone who practises sexual perversion” and “a person whose sexual behaviour is regarded as deviant and unacceptable” and defines “perversion” as including “unnatural or abnormal condition of the sexual instincts”. Likewise, the Shorter Oxford English Dictionary (Fifth edition, 2002) definition of pervert includes a “perverted person” or “sexually perverted person” and defines “perversion” as including “preference for an abnormal form of sexual activity; sexual deviance”.

139 The difficulty for Nationwide and Mr Moran is that, even accepting those definitions of the word “pervert”, the article as a whole conveyed the impression that Mr Rush was someone who acted in a sexually abnormal or deviant way. That is because it conveyed that he engaged in inappropriate or bad behaviour during STC’s production of King Lear which involved leering, or slyly looking at the complainant in a lecherous, lewd or licentious manner. That is more than just offensive and objectionable. Having regard to Mr Rush’s age and standing, it would also be considered by most ordinary reasonable people as sexually abnormal or deviant. It should also be noted, in this context, that the impression conveyed by the positioning of the article concerning Don Burke suggested that Mr Rush’s “inappropriate behaviour” was in some way comparable to that of Don Burke, who had been described as a “sexual predator”. That again suggested some form of sexual abnormality or deviancy.

140 In any event, contrary to the submissions advanced by Nationwide and Mr Moran, in my view the common or everyday meaning of “pervert” is somewhat broader than the rather narrow dictionary definitions. For example, the ordinary reasonable reader would be likely to consider that a person, particularly an older man, who leers at younger women or men in a lecherous, lewd or licentious manner, particularly in a workplace setting, would rightly be called a “pervert”. Indeed, in Australia at least, a man who engages in such behaviour is often called a “perv”, which is a colloquial or shortened form of the word “pervert”. The Macquarie Dictionary defines the colloquial expression “perv” (or “perve”) as a “sexual pervert” and the expression to “have a perv (perve)” as “to look at something, with or as if with lustful appreciation” or “to look lustfully”. The impression conveyed by the article was, at the very least, that Mr Rush was a “perv” or pervert in that sense.

141 Two final points should be made.

142 The first point is that, to the extent that Nationwide and Mr Moran submitted that the “bane”, the imputation that Mr Rush was a pervert, was somehow negated by the “antidote”, being the repeated statement that Mr Rush had denied the allegation of “inappropriate behaviour”, that submission is rejected for the reasons effectively already given. While the 30 November 2017 articles must be read as a whole, the ordinary reasonable reader of those articles would in my view have given particular weight to the prominent headline and photograph on the front page. Indeed, the likely effect of the headline “KING LEER” and the striking photograph of Mr Rush was that the ordinary reader’s mind would have been poisoned from the outset. The headline and the photograph clearly implied or imputed guilt. Their effect would have been to entirely undermine, if not swamp, the reports of Mr Rush’s denials. In all the circumstances, the ordinary reasonable reader’s response to Mr Rush’s reported denials was likely to be to the effect of: “well, he would deny the claims, wouldn’t he”. The same could perhaps be said about the effect of the placement of the article concerning Don Burke on page five.

143 The second point concerns the effect of the extrinsic facts.

144 The clear impression conveyed by the articles, that Mr Rush is a pervert, was likely to be amplified or exacerbated in circumstances where the ordinary reasonable reader at the time of the publication would have read the articles in the context of the recent public exposure of the sexual misconduct of Harvey Weinstein, Kevin Spacey, Don Burke and other famous actors and movie and television executives. As discussed earlier, whether the then recent media portrayal of such persons as sexual predators was a matter of general knowledge, or a proven extrinsic fact, is essentially immaterial. Either way, the features of the article which have been highlighted, would, in that context, have more likely conveyed the impression that Mr Rush was simply another famous and powerful figure in the entertainment industry who was guilty of inappropriate behaviour of a sexual nature. He was another sexual predator. That is particularly the case given the juxtaposition of the article concerning Mr Burke, which indirectly referenced the #MeToo movement by referring to the “Harvey Weinstein scandal”. The ordinary reasonable reader’s knowledge of the extrinsic facts was likely to intensify or amplify the impression or implication otherwise conveyed by the article that Mr Rush is a pervert.

145 It should be noted in this context that Nationwide and Mr Moran submitted that a publication cannot be said to have conveyed an imputation “merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff”: cf. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301. That may readily be accepted. The question whether the relevant imputation was conveyed here is accordingly not to be approached on the basis that the general knowledge of the #MeToo movement likely to have been possessed by the ordinary reasonable reader, or their knowledge of the particular extrinsic facts, would have been likely to excite some general belief or prejudice about sexual harassment in the entertainment industry. Rather, it is to be approached by asking whether the ordinary reasonable reader who possessed that knowledge would conclude, or more readily conclude, that the article was implying or otherwise conveying that Mr Rush is a pervert in light of their posse