Geoffrey Rush case: Can our courts deal with sexual harassment?

Entering into the arena of sexual harassment is fraught for all.

Actress Eryn Jean Norvill’s claims were largely disbelieved by the court’s appeal judges and by the original trial judge. Picture: AAP

“We’re ashamed that this could have happened at the High Court of Australia.’’ In what has been ­described as the High Court’s #MeToo moment, earlier this month, Chief Justice Susan Kiefel made this startling and forthright statement.

With those words, Kiefel threw her support behind six female associates who alleged they had been sexually harassed by former High Court judge Dyson Heydon. Heydon has strenuously denied the claims, but an investigation commissioned by the court found they were borne out. Kiefel said that following the court’s investigation, “we have made a sincere apology to the six women … Their accounts of their experiences at the time have been believed.”

It was a vastly different story this week, however, as a full bench of the Federal Court brought down its judgment in The Daily Telegraph’s appeal against actor Geoffrey Rush’s record $2.9m defamation win. This high-profile case hinged on whether sexual harassment claims The Daily Telegraph published about the Oscar winner in 2017 were substantially true.

In stark contrast to Kiefel’s comments, those harassment claims — made by actress Eryn Jean Norvill, the Telegraph’s key witness — were largely disbelieved by the court’s appeal judges and by the original trial judge, ­Michael Wigney. Justice Wigney had found Norvill was an unreliable witness, “prone to exaggeration and embellishment’’. In its appeal, the Telegraph challenged this finding, along with 19 other aspects of the trial judgment.

On Thursday, all of the newspaper’s appeal grounds were rejected, with appeal judges Jacqueline Gleeson, Michael Wheelahan and Richard White stating: “The judge’s assessment of Ms Norvill was based on findings that are not glaringly improbable.’’

Geoffrey Rush, the accused. Picture: Jonathan Ng

The full court also ruled the historic defamation payout awarded to Rush by Wigney — which The Daily Telegraph also challenged — was “not manifestly excessive’’, given “the hurt and distress’’ the newspaper’s defamatory articles had caused the actor. In a minor concession, it accepted the newspaper’s argument that Wigney should not have “attached significance’’ to positive statements ­Norvill made about Rush in promotional press interviews.

The appeal decision represents a decisive legal victory for Rush and a devastating loss for The Daily Telegraph, but also for ­Norvill and, potentially, the broader #MeToo movement.

While the High Court has been at pains to demonstrate that women who make sexual harassment complaints will be believed and taken seriously, the Federal Court’s decisions in this gruelling defamation battle paint a contrasting picture: The reality is that lone witnesses who come to court with sexual harassment claims often face bruising cross-examination, a lack of support from their own industries and an uphill battle to produce evidence corroborated to a standard that will satisfy judges.

As Karen O’Connoll, associate professor of law at the University of Technology, Sydney, argued this week: “When Wigney suggested Norvill was ‘prone to exaggeration and embellishment’ and ‘not an entirely credible witness’, this is something a lot of women have ­experienced when talking about sexual harassment. There’s a clash between how people experience harassment in their daily lives and the way the law talks about it.’’

Writing on The Conversation website, O’Connoll said that “ultimately, criticism of the case last year centred on a deeply gendered discomfort about the way Norvill was treated as a witness’’. While this case was primarily about ­defamation and truth rather than sexual harassment, the appeal decision, she said, was “a reminder we don’t have good systems for dealing with sexual harassment’’.

The appeal judges also backed Wigney’s decision excluding evidence by prospective witness Yael Stone, who came forward after the 2018 trial had begun. Wigney rejected the newspaper’s application to call the Orange is the New Black star — then known as Witness X — on the grounds it would delay the trial for months and cause “egregious prejudice” to Rush.

The appeal judges concluded Wigney’s exclusion of Stone’s evidence was “hardly surprising’’. They said the most “significant issue” in his decision was his own lack of availability.

In subsequent interviews with the ABC and The New York Times, Stone accused Rush of behaving inappropriately towards her during a Belvoir Street Theatre production of Diary of a Madman. She alleged he exposed himself to her backstage, sent her sexually suggestive text messages, and attempted to spy on her while she was showering. Rush has said the allegations are “incorrect’’ or “taken completely out of context’’.

The upshot: Rush has been handed the biggest defamation payout in Australian history over defamatory newspaper articles alleging sexual harassment, while separate allegations of serious ­sexual harassment, aired in other media outlets, have not been addressed in court.

Even in the #MeToo era, this defamation case raises troubling questions about whether an artist who makes complaints about a powerful figure can expect her industry’s full support.

Just one King Lear cast member — and no permanent staff or board member from the Sydney Theatre Company — came to court to corroborate Norvill’s claims. Yet the STC issued a statement to The Australian and The Telegraph in late 2017, stating that Rush had been the subject of an “inappropriate behaviour’’ complaint. (It later emerged that Norvill, who played opposite Rush in a 2015-16 King Lear STC production, was the woman behind the complaint.)

In contrast, a starry rollcall of film and theatre luminaries appeared in court on Rush’s behalf, including two-time Oscar nominee Judy Davis, theatre legend Robyn Nevin, filmmaker Fred Schepisi, theatre director Neil Armfield and 85-year-old Hollywood agent Fred Specktor.

During the trial, Norvill testified about a pattern of alleged sexual harassment by Rush during and after her King Lear’s run. This ranged from calling her “scrumptious” and “yummy” to making groping gestures in her direction, touching her breast and stroking the skin of her lower back, to sending her a suggestive text message.

Rush denied any wrongdoing. Wigney was “not ultimately persuaded that Ms Norvill was an entirely credible witness’’ — and the appeal judges agreed.

Wigney said the most “telling’’ reason he did not accept most of Norvill’s evidence was that it was not corroborated by other witnesses, or was contradicted by witnesses who testified for Rush, including Armfield and Nevin. (The latter are close friends with the Hollywood star, with Rush describing Armfield as his “artistic brother”.) Ultimately, Wigney accepted the evidence of Armfield and cast members Nevin and Helen Buday, who said they had not seen any inappropriate behaviour by Rush.

The three-week trial, held in 2018, exposed rarely acknowledged power imbalances and generational divisions within Australia’s arts scene.

After Rush won his defamation case, younger theatre artists took to Twitter to support Norvill. ­Declan Greene, playwright and resident artist at Melbourne’s Malthouse Theatre, wrote: “Incredible victory today for the cabal of dinosaurs holding power at the top ranks of Australian theatre. I’ve never been more ashamed to be part of this industry.’’

This saga began in late 2017, when The Daily Telegraph published two front-page articles and a poster which claimed Rush had allegedly behaved inappropriately towards a younger cast member during the King Lear production. That cast member, Norvill, did not speak to the Telegraph and played Cordelia, the youngest daughter of Rush’s King Lear, in the show. Rush sued over the articles, and Wigney found them to be defamatory and untrue.

What about Mark Winter, the King Lear cast member who backed key elements of Norvill’s claims? He too, was found to be an unreliable witness by Wigney and the appeal judges.

Winter testified he had seen Rush perform a “Three Stoogesy skit’’ that ended in a “boob-squeezing gesture’’ over Norvill’s torso. The actor said he had also witnessed Rush make a “cupping” action around Norvill’s breast in a crucial scene during a live performance. However, Winter told the court the touching happened on Norvill’s left side. Norvill testified that it occurred on her right side.

The Daily Telegraph challenged Wigney’s finding that Winter’s evidence was not reliable, but once more, the full court sided with the trial judge.

Interestingly, in this case, the evidence of another King Lear cast member, Buday, was preferred over that of Norvill. Buday, who sang in the witness box, described as “a wonderful example of really good mentoring’’ a text Rush sent to Norvill in 2016, several months after King Lear wrapped up.

Rush, who was married and ­almost twice Norvill’s age, texted: “I was thinking of you, as I do, more than is socially appropriate.” The text was accompanied by a winking emoji with its tongue hanging out.

The Daily Telegraph argued the trial judge should have found this text was inappropriate, but the appeal judges disagreed. They argued it should be seen in the context of playful text messages Rush and Norvill had exchanged in 2014, some of which had “sexual connotations’’. Norvill’s view — that the 2016 text was inappropriate because it was sent months after she claims Rush harassed her at work — seemed to cut no ice with the judges.

While the Oscar, Emmy and Tony winner has been handed a huge payout, in career terms his court win may prove a Pyrrhic victory. The case has been reported around the world, and the Stone allegations aired outside court may have clouded his reputation.

During the trial, the Shine and Pirates of the Caribbean star said the period since The Daily Telegraph articles were published had been “the worst 11 months of my life”. When he won the defamation trial, he declared: “There are no winners in this case — it has been extremely distressing for everyone involved.”

His accusers, Stone and Norvill, were both offered work by STC last year and Norvill was to star in an adaptation of Oscar Wilde’s The Picture of Dorian Gray for the STC in July, though the production has been postponed due to the coronavirus pandemic.

For his part, Rush last year performed in a playreading for charity in Los Angeles alongside Hollywood great Al Pacino. His defamation payout — $850,000 in general damages and almost $2m in special damages to cover interest and past and future economic losses — sets a new record for an individual defamation plaintiff, eclipsing the previous peak payout of $2.6m that went to Perth barrister Lloyd Rayney.

This week, David Rolph, professor of law of the University of Sydney, observed: “This case again shows that given the nature of Australia’s defamation laws, it’s still better to be a plaintiff than a defendant.’’

The Daily Telegraph has not indicated whether it will appeal the Federal Court’s appeal decision to the High Court.

In a statement, Telegraph editor Ben English said: “While we respect the findings of the full court, the Rush case exposes the inadequacies of Australia’s defamation laws and heightens the need for urgent legislative reform to enable public debate and to encourage women to come forward with their ­concerns.

“In that context we are very disappointed that the appellate court did not reverse Justice Wigney’s findings as to the credibility of Eryn Jean Norvill or reverse his honour’s decision to exclude the testimony of Yael Stone. We support both women in their decision to share their complaints.’’

He added: “As stated by High Court Chief Justice Susan Kiefel last week, there is no place for sexual harassment in any workplace.”