Geoffrey Rush v Nationwide News Pty Ltd & Jonathon Moran

Introduction:

Two recent decisions by Justice Wigney emphasize the precision required in pleading defences to defamation proceedings. 

This case note summarises two interlocutory decisions:

1. Rush v Nationwide News Pty Ltd [2018] FCA 357 (The First Rush Decision); and
2. Rush v Nationwide News Pty Ltd (No. 2) [2018] FCA 550 (The Second Rush Decision).

Background

On 8 December 2017 acclaimed Oscar winning actor Geoffrey Rush commenced defamation proceedings in the Federal Court of Australia against Nationwide News Pty Ltd (Nationwide News) and Jonathon Moran (together, the Respondents). Nationwide News, a subsidiary of News Corporation, is the publisher of a number of Australian based newspapers, including the Daily Telegraph in Sydney. Mr Moran is a journalist for the Daily Telegraph.

The Proceeding related to three publications published by Nationwide News (the Publications):

1. A Billboard which advertised or promoted a story that was published in the Daily Telegraph on 30 November 2017 (the First Matter);
2. A series of articles authored by Mr Moran and published in the Daily Telegraph on 30 November 2017, (the Second Matter); and
3. A series of articles authored by Mr Moran and published in the Daily Telegraph on 1 December 2017 (the Third Matter).

The Second and Third Matter (the Articles), were to the effect that an actress (the Complainant) had made a complaint about Rush’s behaviour during the production of King Lear by the Sydney Theatre Company (STC), in which he played the lead role.

The Defamatory Imputations

It is trite to say that a plaintiff must plead and articulate the alleged defamatory imputations with a great deal of care and precision. In doing so the plaintiff may rely on facts extrinsic to the publication to construe the defamatory imputations. A credible defence will only be maintained if it is responsive to the defamatory imputations pleaded by the plaintiff.

The Publications were made following a string of high profile exposés making allegations of sexual harassment and assault against a number of prominent men in the film and entertainment industries. Film producer Harvey Weinstein, actor Kevin Spacey, and Australian television personality Don Burke were all the subject of media scrutiny. Publication of the Weinstein allegations sparked the global “MeToo” movement which encouraged individuals to use social media platforms to share their stories of sexual assault and harassment. The “MeToo” movement and further allegations of sexual harassment continued to dominate the social and mainstream media landscape throughout the latter part of 2017.

Rush alleged that in the context of the “MeToo” movement, the Publications were highly defamatory by implying that, among other things, the alleged “inappropriate behaviour” being complained of was of a sexual nature.

The particular defamatory imputations asserted by Rush are set out below:

The First Matter

The First Matter a billboard, advertising the November Article, stated “Geoffrey Rush in Scandal Claims” and “Theatre Company Confirms Inappropriate Behaviour”. The Billboard was displayed in front of newsagencies throughout NSW and the ACT on 30 November 2017. Rush alleged it contained the following imputations that Rush had engaged in:

1. Scandalously inappropriate behaviour in the theatre; and
2. Inappropriate behaviour of a sexual nature.

Rush further contended that in light of the global attention on sexual harassment and assault in the work place (the Extrinsic Facts), the Billboard also contained two further defamatory imputations that he had:

1. Committed sexual assault in the theatre; and
2. Engaged in inappropriate behaviour of a sexual nature in the theatre.

(The Extrinsic Fact Imputations).

The Second Matter

On 30 November 2017, the front page of the Daily Telegraph contained a full page photograph of Rush, adorned in his King Lear stage makeup and crown with the large headline of “King Leer”.

The front page article stated “World Exclusive Oscar-winner Rush denies ‘inappropriate behaviour’ during Sydney stage show”. Essentially, the article stated Rush had been accused of “inappropriate behaviour” during the production of King Lear and that Rush vigorously denied those claims.

The main article appeared on pages 4 and 5 of the Daily Telegraph under the headline “Star’s Bard Behaviour”. (As his Honour observed it appeared that those responsible for the headlines and sub-headlines “simply could not help themselves”.¹)These articles stated, among other things, that Rush was “the subject of a complaint during the production of King Lear” and that it was understood “the allegations of inappropriate behaviour occurred over several months”. On the same page and adjacent to the articles concerning Rush was an article regarding the allegations made against Mr Burke which, relevantly, described Mr Burke as a “sexual predator”, and “psychotic bully”. Rush alleged the Second Matter contained the following imputations that he:

1. Is a pervert;
2. Behaved as a sexual predator whilst working on the STC’s production of King Lear;
3. Engaged in inappropriate behaviour of a sexual nature whilst working on the STC’s production of King Lear; and
4. Engaged in inappropriate behaviour against another person over several months while working on the STC’s production of King Lear.

The Third Matter

The Third Matter was a series of articles published on the front page and pages 4 and 5 of the Daily Telegraph on 1 December 2017. The front page had the large headline “We’re with you” and “Theatre cast back accuser as Rush denies ‘touching”’. The front page also stated:

“Two Sydney Theatre Company actors yesterday spoke out in support of the actress who had accused Oscar winner Geoffrey Rush of touching her inappropriately during the stage production of King Lear”

…

“Two STC sources said the company stood by her claims. Both said the company wouldn’t work with Rush again… Mr McIntrye (the Executive Director of the STC) said the STC had ‘is reviewed policies’ is about ‘is appropriate behaviour”²

Rush alleged the Third Matter contained the following imputations that he:

1. Had committed sexual assault while working on the STC’s production of King Lear;
2. Behaved as a sexual predator while working on the STC’s production of King Lear;
3. Engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear;
4. As, an acting legend, had inappropriately touched an actress while working on the STC’s production of King Lear;
5. Is a pervert;
6. Had conducted himself inappropriately by touching an actress during King Lear that was so serious that the STC would never work with him again; and
7. Falsely denied that the STC had told him the identity of the person who had made a complaint against him.

Rush also alleged, in the alternative, that the Third Matter contained the Extrinsic Fact Imputations.

The First Rush Decision

In their amended defence filed on 20 February 2018, the Respondents denied the Publications conveyed any of the imputations. They also sought to rely on the statutory defences of justification in section 25³ of the Defamation Act 2005 (NSW) (the Act); and qualified privilege, in section 30 of the Act.

Defence of Justification

The Respondents alleged the following imputations relied upon by Rush were substantially true, namely:

1. He had engaged in scandalously inappropriate behaviour in the theatre;
2. He engaged in inappropriate behaviour against another person over several months while working on the STC’s production of King Lear;
3. He had inappropriately touched an actress while working on the STC’s production of King Lear; and
4. His conduct in inappropriately touching an actress during King Lear was so serious  the STC would never work with him again.

In “particulars of truth” in respect of the defence of justification included that:

1. In or around November 2015, in an interview with the Sydney Morning Herald Rush described himself as having a “stage-door Johnny crush” on the Complainant. The phrase “stage-door Johnny” refers to a man who frequents a theatre for the purpose of courting an actress or a chorus girl;
2. On or about 5 January 2016, Rush touched the Complainant in a manner which made the Complainant feel uncomfortable. This touch, which was not directed or scripted or necessary for the performance of the production, occurred during the final scene of King Lear where Rush carried the Complainant on to the stage;
3. Following the performance the Complainant said to Rush words to the effect “stop doing it”. Despite this alleged demand, Rush repeated the conduct on 4 further occasions. Following each incident the Complainant was visibly upset; and
4. During the after party for the King Lear production Rush entered the female bathroom located in the foyer of the Roslyn Packer Theatre, knowing that the Complainant was in there, and stood outside a cubicle that was occupied by the Complainant. The Complainant told Rush to ‘fuck off’ and he left the bathroom. (the Bathroom Incident).

Application to strike out the Justification Defence

Rush sought to strike out the particulars to the defence of justification on the basis they were “both inadequate by reason of their lack of precision and insufficient in the sense that they were not capable of supporting the substantial truth of the imputations they purport to justify“.⁴ Rush further sought to have both the particulars to the defence of justification, and the defence itself struck out.

Striking out Pleadings and Particulars

In assessing the merits of Rush’s strike out application, his Honour first considered the general principles in relation to an application to strike out pleadings and particulars. The power to strike out pleadings is discretionary and should be exercised with a degree of caution to ensure the “party is not to be denied the opportunity to place his or her case before the court in the ordinary way”.⁵

Particulars to a pleading must “clearly define the issues to be tried, and to allow the other party an opportunity to know the case they are required to meet.⁶ If particulars do meet that threshold, “it is difficult to see why they should be regarded as being deficient and liable to be struck out, even if it is possible to conceive of ways the pleading could perhaps be improved”.⁷Particulars, in relation to a defence of justification must demonstrate:

1. They are capable, “at their highest” of showing the truth of the defamatory meaning sought to be justified. In considering whether the particulars establish the “truth” of the defamatory meaning courts must adopt an approach which remains cognisant of the fact that particulars are “simply a summary of relevant facts, and are therefore unlikely to be as fulsome as the evidence that may ultimately be lead to prove those facts”⁸; and
2. They are sufficiently specific to enable a claimant to know the case that they are required to meet. The specificity with which a defence of justification should be particularised is said to be comparable to that of an indictment.⁹

His Honour first considered whether the particulars satisfied the requirement of “specificity”. Insofar as the particulars of touching were concerned his Honour observed that the particulars failed to set out:

1. Where Rush was alleged to have touched the actress, the nature and duration of the touching, or how the touching exceeded the required amount of touching appropriate for a scene where Rush carried the Complainant across the stage;
2. Why the touch made the Complainant uncomfortable, in particular whether the Complainant experienced physical or emotional discomfort as a result of the touching;
3. The reasons motivating Rush’s behaviour. Although, his Honour observed that the particulars of the “Stage door Johnny Crush” suggested the behaviour was motivated by a romantic or sexual attraction, the particulars failed to make this inference express; and
4. The particulars of the Complainant’s demand to Mr Rush to “stop doing it”. Although, once again by inference, the “it” was seemingly a reference to the touching, the “absence of further details about this conversations (made it) … difficult to know exactly what the actress was referring to”¹⁰.

In relation to these particulars his Honour observed that:

In my opinion, the particulars that have been provided in relation to the alleged “touch” during the performance on 5 January 2016, the alleged “demand” that occurred sometime after that performance, the alleged repetition of the “conduct” and the allegation that the actress was visibly upset are not sufficiently specific or precise. They are loose and ineffective and tend to obscure, not elucidate or clarify the issues. In terms of r 16.21(1) of the Rules, they are evasive and ambiguous. They are also likely to cause prejudice or embarrassment in the proceeding. That is because they do not give Mr Rush fair or reasonable notice of the case that is made against him.

Mr Rush is required to file, or consider filing, a reply to the Amended Defence. It is difficult to see how he could do that given the lack of specificity and precision in those paragraphs of the particulars. Nationwide and Mr Moran contended that it is open to Mr Rush to deny the allegations in the particulars. The problem is, however, that he is entitled to know exactly what it is he is denying. Perhaps more importantly, Mr Rush must also give consideration to what evidence he might marshal in response to the justification defence and what interlocutory processes of the Court he should utilise in that regard. The lack of specificity and precision of the particulars will undoubtedly prejudice Mr Rush in that regard. What evidence could he give in response to such vague allegations? How could he decide what witnesses to call?¹¹

His Honour similarly found that the particulars provided in relation to the Bathroom Incident were also deficient in that they raised many unanswered questions.

Ultimately his Honour concluded that the:

It follows that I am satisfied that the particulars in paragraphs 14 to 24 and 28 are insufficiently precise and specific to constitute proper particulars for a defence of justification in defamation proceedings. They are, in that specific context, evasive and ambiguous: r 16.21(1) (c) of the Rules. They are also likely to cause prejudice or embarrassment in the proceeding: r 16.21(1) (d) of the Rules. That is because they do not give Mr Rush fair or reasonable notice of the case that is made against him and are likely to prejudice his preparation and presentation of his case at trial. I should emphasise that, while I have to some extent dealt with some of the particulars separately, I have also considered the particulars as a whole.

These findings are not made lightly. They are made cognisant of the fact that if the particulars are struck out, the defence of justification defence must also be struck out as disclosing no reasonable cause of action. As discussed earlier, the authorities clearly show that the power to strike out a defence in a defamation case should be exercised with considerable care and caution and a defence should generally only be struck out in a clear, if not exceptional, case. For the reasons just given, this is such a case.¹²

Given his Honour’s observations about the “paucity of detail, ambiguity and lack of specificity in the particulars, it is difficult if not impossible to conclude that the particulars, taken at their highest, are capable of proving the truth of some, if not all, of the imputations”.¹³ Accordingly, his Honour struck out both the particulars and the defence of justification.

Qualified Privilege

Qualified privilege provides a defence to a claim in defamation, where a publisher can show  the recipient of the publication, in this instance the readers of the Articles, have an interest in receiving the information, the matter was published to give the recipient the information on that subject and the publisher acted reasonably in publishing the matter.¹⁴

In considering the reasonableness of the publisher, the court may take into account the matters set out at section 30(3) of the Act which includes, “any other circumstances that the court considers relevant”¹⁵.

The Respondents in particularising their defence of qualified privilege sought to rely on the “objective truth” of the Articles as matter relevant to establishing the reasonableness of their conduct.

Rush, relying upon the decision in Makim v John Fairfax & Sons Ltd¹⁶(Makim) objected to the inclusion of certain particulars of truth on the basis they were entirely irrelevant to a defence of qualified privilege.

Relevance of objective truth to a defence of Qualified Privilege

In Makim the Justice Hunt observed that:

Where a defendant seeks to establish that he believed in the truth of a particular fact, the only thing which is relevant is the defendant’s state of mind, and the circumstance that the fact turns out to have been true does not advance the proof of the defendant’s belief in the truth of that fact. The question of privilege only arises where the defendant has failed to establish a defence of truth.¹⁷

In essence, Justice Hunt considered that as the defence of qualified privilege is concerned with the subjective knowledge of the defendant; the objective truth of the publication is not relevant to that investigation. The approach of his Honour in Makim was followed by a number of decisions in Australia.¹⁸ The Respondents, in accordance with the decision of Hockey v Fairfax Media Publications Pty Ltd,¹⁹(Hockey) sought to depart from the position outlined in Makim and contended that objective truth was a matter relevant to determining the reasonableness of the publisher’s conduct.

In Hockey, his Honour was required to determine whether the defendant could examine the plaintiff in relation to matters solely relevant to the objective truth of statements contained in the defamatory publication. In considering the objections, his Honour stated that Makim “while persuasive, is no longer decisive of the question of whether proof of objective truth of facts comprising, or contributing to, a defamatory imputation is admissible in support of a defence of qualified privilege”.²⁰ His Honour concluded that s 30(3) of the Act, which was not in force at the time of Makim, had expanded the matters relevant to the defence of qualified privilege. In particular, his Honour held that s 30(3)(j) which granted a court the right to take into account “any other circumstances that the court considers relevant“, appeared to “indicate that courts may now have regard to matters going beyond the belief of the defendant in the truth of the defamatory imputation”.²¹

In considering the decisions of Makim and Hockey his Honour observed that:

1. Neither case dealt with the issue that was before the court in Rush, namely whether particulars of truth can be used to establish the reasonableness of a defendant’s conduct for the purposes of a defence of qualified privilege; and
2. The reasoning in Makim was focused on determining whether the publisher’s conduct was reasonable and, in particular, whether they took all reasonable steps and believed in the truth of the publication. In respect of that enquiry, Justice Hunt considered the objective truth of matters in the publication was irrelevant. Given the limited scope of the matters in issue in Makim, Justice Wigney considered it should not be viewed as a case which stands for the proposition that truth was never relevant to the reasonableness of a publisher’s conduct in respect of the defence of qualified privilege.

In any event, his Honour concluded that he preferred the position set out in Makim instead of that in Hockey. In particular:

1. His Honour did not accept that the Act had enlarged the matters that were relevant to the determining the reasonableness of the Defendant’s conduct;²²or
2. That the objective truth was a relevant consideration in determining the reasonableness of the Defendant’s conduct.²³His Honour observed that “the defence of qualified privilege proceeds on the basis that the relevant statements were not true…The main question for determination in respect of the defence of qualified privilege is whether the defendant acted reasonably in publishing despite the fact that what was published turned out to be untrue”.²⁴

Accordingly, his Honour held the pleadings of objective truth were not relevant to determining the reasonableness of the Respondents’ behaviour. He also considered that some of the matters relied upon were ambiguous, likely to cause embarrassment, prejudice or delay the proceeding.

Appeal

An appeal was made by the Respondents to the pleadings that were struck out for the s.30 statutory qualified privilege defence. The Court of Appeal denied leave to appeal.²⁵

The Second Rush Decision

Following Justice Wigney’s decision striking out parts of their defence, the Respondents subsequently sought leave to file:

1. A further amended defence; and
2. A cross-claim for contribution against the Sydney Theatre Company (STC) as a joint or concurrent tortfeasor.

The Application in relation to the Amended Defence

The Application must be viewed in light of the Respondents attempt to rely on objective truth as part of their defence of qualified privilege. Although, the Respondents initial attempt to rely on the defence of qualified privilege was unsuccessful, they now sought to reintroduce the paragraphs of the struck out qualified privilege defence, as matters in relation to the mitigation of damages. The Respondents relied upon the “Burstein Principle”,²⁶ which entitles a Defendant to “rely upon such facts within the directly relevant background context”²⁷ for the purposes of mitigation, even in circumstances where those same facts were not pleaded or particularised in its substantive defence to the defamation claim.

The matters which the Respondents proposed to rely upon in mitigation of damage included particulars of:

1. Two STC actors indicating their support for the Complainant on social media; and those posts had been retweeted by other actors from the STC;
2. Two sources stating that the STC would no longer work with Rush;
3. The STC revising its HR policies; and
4. Statements made by Mr Patrick McIntyre, the Executive Director of the STC, that “it was a wide ranging issue for the industry to address in the wake of the Harvey Weinstein scandal”, and“it was important actors felt safe to speak up and he believed maintenance of confidentiality was key”.

In considering the scope of matters which could legitimately be the subject of a pleading in accordance with the Burstein Principle his Honour considered that:

Facts which are able to be pleaded and proved in the mitigation of damages pursuant to the Burstein principle must concern specific conduct that is directly relevant to either the subject matter of the alleged defamatory statement, or the claimant’s reputation in the part of his or her life the subject of the defamatory publication.

The rationale for permitting evidence of such facts being led is that otherwise damages may be assessed on a false basis. It is equally clear that courts, including this Court, must proceed with caution in applying Burstein, should guard against “extending too creatively” the concept of “directly relevant background”, and should subject the proposal to adduce facts under the Burstein principle to careful scrutiny. Mere resort to the label “directly relevant background context” will not suffice.²⁸

His Honour found the matters which the Respondents sought to rely upon in mitigation did not have the necessary connection with the matters the subject of the defamatory imputations. The Imputations, were plainly concerned with Rush being “guilty of engaging in” (emphasis added) of inappropriate conduct, whereas the facts the Respondents sought to rely upon were, at their highest, evidence of “allegations” of inappropriate conduct or suspicions that Rush had engaged in such behaviour.

In this regard, his Honour concluded that evidence of allegation or suspicion could not be relied upon as mitigation in respect of defamatory imputations of guilt. Further, his Honour was critical of the nature of the evidence the Respondents sought to rely on describing it variously as “hearsay statements about allegations that had been made against Mr Rush”,²⁹ “rumour or innuendo“,³⁰ or entirely irrelevant to Rush’s conduct or reputation.³¹

Application in relation to the Cross Claim

The Respondents in what his Honour described as an “unusual” approach sought to claim contribution or indemnity from the STC, as a joint tort feasor or otherwise. The particularly novel aspect of this application was the Respondents sought to:

1. Take action against a source of the Articles; and
2. Discard the confidentiality they originally gave to the STC’s General Manager, Mr McIntyre.

The Respondents asserted STC’s liability arose from:

1. Publication of three statements (collectively the Statements) to the Respondents which contained the defamatory imputations alleged by Rush. The three statements were said to be:
   • an email stating, among other things, the STC had “received a complaint alleging Rush had engaged in inappropriate behaviour” (the STC Statement);
   • the ‘silence’ of Katherine Stevenson, an employee of the STC, after the Second Respondent read to her over the phone the contents of the proposed article including the headline; and
   • statements made by McIntyre to the Respondents, that:
     • “Mr Rush was aware of the complaint and I told him who had made the complaint, but I’m not sure how much detail he knew“; and
   • “the STC has changed its HR policies and practices and, don’t attribute this to me, but the STC has vowed never to work with Mr Rush again“.

2. Damages being the foreseeable consequences of publication of the Statements to the Respondents. (1 and 2 are collectively referred to as the Publication Claim);
3. The STC’s conduct in “encouraging, assenting to, or conducing or was accessorial in the publication of each of those matters”.(The Webb v Bloch³² Claim); and
4. The STC was the original publisher of the defamatory matters, being the Statements, it was liable for their republication by the Respondents in the Articles. (The Speight v Gosnay³³ Claim).

The Publication Claim

The Respondents alleged the Statements conveyed all of the Imputations alleged by Rush in relation to the Articles. His Honour was critical of the Respondents’ submission querying how the Statements could convey “any, let alone all”³⁴ the Imputations. In addressing each of the Statements his Honour stated:

1. The STC Statement was made with an apparent degree of caution and could not be considered to convey the Imputations; and
2. The “silence” of Stevenson in and of itself, could not ordinarily constitute publication. Accordingly, Stevenson’s silence in response to having the article read to her did not amount to a “publication” as asserted by the Respondents unless she “was aware of the entirety of the defamatory publication and had the opportunity ability and power to put a stop to it”.³⁵ His Honour was particularly reluctant to classify Stevenson’s silence as assent to the November Article in circumstances where she did not have any knowledge of the layout of the article, the use of the word “Leer” in lieu of “Lear” in the headline, and the adjacent article referring to harassment claims against Don Burke.

Given his conclusions above about the actual imputations conveyed by the Statements, his Honour held that it was “extremely difficult” to accept the STC could have foreseen the Statements would be published in the form of the actual Articles.³⁶

Webb v Bloch Claim

The Respondents sought to join the STC on the basis that by making the Statements, they essentially participated in or were accessories to the publication of the Articles.

His Honour held that this claim was “extremely weak and tenuous”.³⁷ He observed any attempt to join a party as a participant or an accessory to a publication would not be made out unless³⁸:

1. The contributor was an accessory to the entire publication;
2. The publication reproduced the “sense and substance of the statement” made by the contributor; and
3. The contributor assented to the publication of the article in its final form.

In this instance, he held that the Respondents failed to meet that threshold. Although the Statements had been made to the Respondents, the Articles went far beyond the content of the Statements. Further, the real ‘sting’ in the Articles could not be said to be derived from the Statements. Finally, his Honour considered it was fanciful for the Respondents to suggest that Stevenson’s silence could constitute “assent” to the publication of the Articles.

Speight v Gosnay Claim

In accordance with the decision in Speight v Gosnay, an original publisher of the defamatory publication may be liable for republications, if they are the natural and probable result of the original publication.

His Honour held that as the Statements did not contain the same imputations as alleged by Rush, it could not be accepted that the STC was the original publisher of the Articles and therefore liable for subsequent republications.

His Honour dismissed the Respondents’ application to file the cross-claim.

Conclusion

As is apparent from his Honour’s dismissal of both applications in order for a claim in mitigation or an application to join a tortfeasor to be accepted, there must be an alignment between those matter and the actual imputations the subject of the claim. In this instance the Respondents’ applications failed due to their inability to show a proper connection between the imputations pleaded by Rush and either the matters pleaded in support of mitigation, or the conduct of the STC.

This article was written by Nicholas Pullen, Partner and Priya Wakhlu, Associate. 

¹Rush v Nationwide News Pty Ltd [2018] FCA 357 (The First Rush Decision), [17].
²The First Rush Decision, [25].
³Section 25 of the Act provides that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
⁴The First Rush Decision, [40].
⁵Agar v Hyde (2000) 201 CLR 552, (Gaudron, McHugh, Gummow and Hayne JJ) 575 – 576.
⁶The First Rush Decision, [44].
⁷Ibid.
⁸The First Rush Decision, [49].
⁹The First Rush Decision, [54].
¹⁰The First Rush Decision, [71].
¹¹The First Rush Decision, [74] – [75].
¹²The First Rush Decision, [85] – [86].
¹³The First Rush Decision, [87].
¹⁴S 30 of the Act.
¹⁵S 30(3)(j) of the Act.
¹⁶Unreported, Supreme Court of New South Wales, Hunt J, 15 June 1990.
¹⁷First Rush Decision, [124].
¹⁸Sewell v National Australia Bank Ltd (unreported, Supreme Court of New South Wales, Levine J, 12 June 1997) and Alan Jones v John Fairfax Publications Pty Ltd [2002] NSWSC 1210 at [59]; and Anderson AUJ in Rayney v The State of Western Australia (No 2) [2009] WASC 133 at [21]- [23].
¹⁹237 FCR 33 (Hockey).
²⁰Hockey, [331].
²¹Hockey, [329].
²²First Rush Decision, [139].
²³First Rush Decision, [140].
²⁴Ibid.
²⁵Nationwide News Pty Ltd v Rush [2018] FCAFC 70.
²⁶Burstein v Times Newspapers Ltd [2000] [2001] 1 WLR 579.
²⁷Warren v Random House Group Limited [2009] QB 600, [78].
²⁸Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 (The Second Rush Decision), [45].
²⁹Ibid.
³⁰Ibid.
³¹Ibid.
³²(1928) 41 CLR 331.
³³(1891) 60 LJQB 231.
³⁴Second Rush Decision, [96].
³⁵Second Rush Decision, [104].
³⁶Second Rush Decision, [115].
³⁷Second Rush Decision, [131].
³⁸Second Rush Decision, [119] – [125].