A new court document has revealed the judge on Geoffrey Rush’s defamation win ‘erred’ when he ruled the actor did not perform a “groping and fondling gesture” over co-star Eryn Jean Norvill.
The document also found the judge Michael Wigney was mistaken when he ruled Norvill was “an unreliable witness”.
The Daily Telegraph, which is appealing against Rush’s $2.9 million defamation win, has filed an amended notice of appeal with the Federal Court, giving more evidence for its argument that Wigney’s conduct of the case gave rise to “an apprehension of bias’’.
The amended appeal notice says “the primary judge erred in finding … that the fact some of Ms Norvill’s evidence was uncorroborated, supported a finding … that she was an unreliable witness prone to exaggeration and lacking in credibility’’.
The appeal says Wigney was wrong to rely on “a supposed inconsistency between Ms Norvill’s evidence … and positive statements made by her about the Respondent (Rush) to the press for the purpose of promoting King Lear’’.
The new document also challenges Wigney’s finding that the evidence of actor Mark Winter, who worked with Rush and Norvill, “provided little support for Ms Norvill’s version of events’’.
Barrister for Rush, Sue Chrysanthou, argued at a case management hearing the amended document did not actually identify what the mistakes were with these findings.
The Tele’s grounds for appeal have risen from 16 to 20, including where Wigney allegedly referred to the Telegraph “in derogatory terms … and the tone in which certain of those references were delivered.”
The Telegraph’s lawyers said in court on Wednesday they wanted to receive the audio of the proceedings to show the judge’s “tone.”
The Telegraphs has until June 21 to file an application and supporting affidavit to access these recordings.
Rush’s lawyer said she did not oppose the audio being obtained, as long as the recordings related to the Tele’s appeal claim.
The case will return to court on July 15.