Rush for Vindication: Nationwide News Pty Limited v Rush [2018] FCAFC 70

Geoffrey Rush has thwarted Nationwide News and Moran’s defences to his defamation action a third and final time, with the Full Court rejecting Nationwide News and Moran’s application for leave to appeal on 27 April 2018 in Nationwide News Pty Limited v Rush [2018] FCAFC 70.

The decision has put an end to a significant component of Nationwide News and Moran’s defence. It also highlights that you and your client should conduct defamation cases quickly and efficiently, without making unnecessary interlocutory applications. This is particularly important in circumstances where the defamatory attack has been made publicly, the defamatory imputations are of a serious kind, and the claimant is anxious to be vindicated.

What’s the case about?

The substantive proceedings concern three publications in which it was alleged that Mr Rush had engaged in “inappropriate behaviour” during a performance of the Shakespeare play “King Lear”. Mr Rush had made clear that he wanted an early hearing of his claim, his evidence suggesting that he had suffered tremendous emotional and social hardship as a result of the continued coverage of the case.

Two of the defences relied on by Nationwide News and Moran included the defences of justification and qualified privilege. The defence of justification offers a complete defence where the publisher can prove that the defamatory imputations were substantially true. On the other hand, qualified privilege affords a defence when truth isn’t an answer but a publisher acts reasonably in publishing the defamatory material, and when a reader has an interest in having information about the subject matter.

One of Nationwide News and Moran’s arguments was that its publication of the defamatory articles was in the public interest in the context of the #MeToo movement, and because the alleged misconduct involved an Oscar winning actor.

Why were the defences struck out by the primary judge?

Mr Rush was successful at first instance in completely striking out the defences (Rush v Nationwide News [2018] FCA 357) (Rush v Nationwide News). The defences were struck out on the basis that they didn’t disclose a reasonable cause of action, and because the particulars supporting them were so imprecise that it was difficult to know exactly what was being alleged.

For example, one of Nationwide News and Moran’s central allegations was that Mr Rush had “touched” the actress in a manner that made her feel uncomfortable, but the nature or duration of the touch wasn’t detailed, and Nationwide and Moran didn’t explain what distinguished the alleged touch from what Mr Rush was required to do as part of the play.

A further attempt by Nationwide News and Moran to re-introduce the particulars previously struck out (this time as particulars of matters said to be relevant to the mitigation of damages) was also rejected by Wigney J in Rush v Nationwide News Pty Ltd (No 2) FCA 550. In rejecting the application, Wigney J took into account that the facts sought to be relied on by Nationwide News and Moran comprised little more than hearsay statements made about Mr Rush, and also that further delay and prejudice would be suffered by him if the application were to be allowed.

Findings of the Full Federal Court in Nationwide News v Rush

Nationwide News and Moran subsequently applied to the Full Federal Court for leave to appeal.

In Nationwide News Pty Limited v Rush the Full Court refused to disturb Wigney J’s decision. It found that:

  • Nationwide News and Moran had made a public attack of a serious kind, and as such Mr Rush was entitled to proceed to hearing quickly.
  • A tight rein should be kept on interfering with decisions of judges at first instance and the tendency towards interlocutory disputes in the area of defamation law shouldn’t be encouraged by a ready grant of leave to appeal.
  • There was no reason to doubt the correctness of the primary judge’s evaluation at first instance, Allsop CJ noting that the statutory defence of qualified privilege shouldn’t be overly constrained by the creation of rules.

What this means for you

These decisions illustrate that:

  • The Federal Court will take seriously the need for a claimant to a defamation action to have their claim dealt with quickly so that they can be publicly vindicated while the defamatory publication is still fresh in the mind of the public.You should take into account case management considerations when defending defamation proceedings (including the Court’s objectives of reaching a quick, inexpensive and efficient resolution of the real issues in dispute), particularly where the defamatory attack is of a serious kind.
  • The need for particulars is more acute in defamation cases. You should prepare a defence that’s supported by precise and specific particulars (as required by state and territory rules). The particulars should clearly define the issues to be tried and give sufficient notice of exactly what’s alleged. Although the Court will generally exercise caution before striking out a defence to a defamation action, it may be prepared to do so where the particulars are so general that they’re incapable of proving the defence upon which you seek to rely.

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Nadia Janisz is a senior writer in the Practical Law Australia Commercial and Dispute Resolution legal writing teams. She has over 15 years’ experience in private practice and in-house. Nadia practised at a large law firm for 10 years acting for large corporate clients nationally and internationally, before moving in-house to work as legal counsel at a global consumer goods company, specialising in Competition and Consumer Act issues, advertising and marketing and compliance.

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