AustraliaTelegraph takes aim at judge's 'tone' as it seeks access to Rush tapes
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Sydney tabloid The Daily Telegraph is seeking access to parts of the audio recording of the Geoffrey Rush defamation case because it believes the presiding judge's "tone" when allegedly criticising the newspaper is relevant to some of its appeal points.
The publisher of the Telegraph, Nationwide News, says the Rush trial miscarried because the conduct of the proceedings by Federal Court Justice Michael Wigney "gave rise to an apprehension of bias"..
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It does not accuse Justice Wigney of actual bias, but says the way he conducted the hearings created an appearance that he was biased.
At a preliminary hearing of the appeal on Wednesday, the Telegraph's barrister, Pouyan Afshar, said his client was seeking access to the audio recording of the proceedings.
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He said the "whole of the audio recording" was being sought but only a portion was relevant to the appeal. Mr Afshar said there were "some portions [of the audio] that my clients will contend were not included in the transcript" or were "not for whatever reason transcribed".
In an amended notice of appeal, the Telegraph says Justice Wigney made "repeated" references to the newspaper and the articles at the centre of the case "in derogatory terms", and "the tone in which certain of those references were delivered" is relevant to the appeal.
This included the judge's remarks when the newspaper sought to amend its defence towards the end of the proceedings to include new evidence from a mystery witness, initially dubbed "Witness X" owing to a suppression order and .
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Mr Rush's barrister, Sue Chrysanthou, said: "We have no opposition to the appellants obtaining audio to those particular transcript references."
The newspaper also says Justice Wigney erred in finding Mr Rush did not grope his King Lear co-star Eryn Jean Norvill on the breast during a preview performance of the Sydney Theatre Company production in late 2015.
Justice Anthony Besanko gave the Telegraph until June 21 to file written submissions and an affidavit supporting its application for the audio recordings.
Mr Rush, 67,when he was awarded $2.9 million in damages for two defamatory articles published in the Telegraph in late 2017, which accused him of "inappropriate behaviour" towards a then-unnamed actor.
It is the largest defamation payout ever awarded to a single plaintiff in Australia, and includes $1.98 million for past and future economic loss and $850,000 in non-economic damages for personal distress and hurt, plus $42,302 in interest on the smaller sum.
Nationwide News is not challenging the calculation of the $1.98 million figure for economic loss, which was agreed between the parties after Mr Rush won the case. However, the publisher disputes that any such damages are payable and wants the appeal court to enter judgment in its favour or order a new trial with a different judge to decide the issues afresh.
The parties return to court for a further preliminary hearing on July 15.
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