Sydneys Daily Telegraph says the damages awarded are out of line with other recent high-profile cases

The $2.9m in damages awarded to the Oscar-winning actor Geoffrey Rush in his defamation case against Sydneys Daily Telegraph were manifestly excessive and out of line with other recent high-profile cases, the newspapers lawyers have argued.

The Telegraph through its parent company, Nationwide News, began its appeal on Monday against the federal court justice Michael Wigneys ruling that the Rupert Murdoch-owned newspaper had defamed Rush by alleging he engaged in inappropriate behaviour during a Sydney Theatre Company production of King Lear in 2015.

The first day of a two-day trial ended on a dramatic note, when in an 11th-hour change of heart the newspaper dropped its claim that Wigneys conduct in the case gave rise to an apprehension of bias.

The last-minute decision to drop the claim drew an angry response from Rushs barrister, Bret Walker SC, who told the court the Telegraphs very grave allegation of bias had been a slur both on the trial judge and on the cogency of the vindication our client has enjoyed.

But the Telegraph is still arguing Wigney erred both in finding that the newspapers star witness, Eryn Jean Norvill, gave unreliable evidence and in awarding special damages to Rush based on an inference the actor would no longer be able to work.

If the appeal is unsuccessful, Rush is due to receive $2.9m in damages the largest defamation payout to a single person in Australia including just under $2m in special damages, $850,000 in general damages to compensate for loss of reputation and hurt feelings, and $42,000 interest.

In written submissions, the newspaper has also argued the general damages awarded to Rush were manifestly excessive and pointed to a New South Wales supreme court decision to award the West Indies cricketer Chris Gayle $300,000 after a jury found a series of articles published by Fairfax Media in 2016 which alleged he exposed his penis to a masseuse were untrue.

The two cases, the Telegraph argues, had several significant similarities including that both Rush and Gayle were well known internationally in their respective fields, and critically, the imputations all relate to the same kind of imputations, namely sexual impropriety towards a woman in the workplace.

The key differences are that in the Gayle case there were more publications (28 versus three) and in the Gayle case there was no award for aggravated damages, the Telegraphs lawyers wrote in their submissions to the appeal court.

It is difficult to see how the matters of aggravation found by the primary judge in this case resulted in a damages award $550,000 higher than Mr Gayles award given the similarities in the cases, they wrote.

On Monday the Telegraphs barrister, Tom Blackburn SC, told the court that Rushs damages for economic loss were substantial and based on a belief that he couldnt work, which was cobbled together with speculation and inferences.

The decision to award them, he said, was extraordinary and absurd because while the actor had delivered his lines over three days in the witness box, he had never told the court he had not received offers to work.

Heres one thing he didnt say, that is, I am unable to work because of these articles. He just didnt say it, Blackburn said.

Neither did he say I have received no or fewer offers because of these articles. His American agent, Fred Specktor, did not say he has received no or fewer offers because of these articles, his Australian agent wasnt called, no one gave that evidence.

Blackburn said the failure to ask Rush that question was not explicable on any other conceivable basis other than that it was a deliberate decision.

He doesnt clearly come out and say I have received no offers of work, he said.

We say it is very strange for the court to be having to draw inferences about his state of mind.

The trial continues on Tuesday.



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