Did Mr Rush give evidence of the emotional effect that the articles had on him?
530 In support of the Judge's finding that the impact that the publications had on Mr Rush and his state of mind was a material reason, if not the main reason, why he stopped working, his Honour held at [843] that as a result of the publications, and the effect they had on Mr Rush mentally and physically, he was simply unable to muster the confidence, concentration, drive, enthusiasm, and stamina to act. His Honour held that this was plainly the most rational, logical and reasonable inference in all the circumstances. At [848] of the reasons for judgment, his Honour accepted that Mr Rush did not himself directly address his inability to work in his evidence, but held that the evidence of the observations of others who were close to him was compelling. We have already referred at [394]-[404] above to the substantial body of evidence concerning the effect that the publications had on Mr Rush, which was unchallenged at trial.
531 The appellants submitted that Mr Rush gave no evidence that he was unable to work in the future due to the emotional toll that the publications had taken on him, and submitted that the absence of such evidence was a "glaring omission". They submitted that the only evidence arguably relevant to Mr Rush's inability to work due to his emotional state was given by his agent, Mr Specktor, and by his wife, Ms Menelaus. We have referred to the evidence of Ms Menelaus at [395] above. At [397]-[404] above, we also have referred to the evidence of other witnesses, Ms Kershaw, Ms O'Bryan, Mr Schepisi, and Ms Nevin, concerning their observations of Mr Rush. The appellants referred in their written submissions to the evidence of Ms Menelaus and to the following evidence of Mr Specktor in cross-examination, and claimed that it was "[t]he only evidence arguably relevant to the primary judge's findings about [Mr Rush's] inability to work due to his emotional state":
Q: If Mr Rush is vindicated by winning this court case, Hollywood will forgive him quick-smart, won't it? It will - - -?---
A. That's a question one - that one can't say yes or no. All I know is his reputation has been one thing, but his psyche has changed, and it's about his ability to work that concerns me and probably concerns him.
532 However, Mr Specktor also gave the following evidence-in-chief of his observations of Mr Rush following the publications:
Q: What effect have you observed on him personally of these articles?
A: Well, I think has been very destructive to him in terms of his psyche and I think - I know he has had a very difficult time thinking about acting in anything. You know, we can - we do speak usually about once a week and sometimes more, but usually about once a week, and I just see a total difference in him from the time this was in that newspaper and, you know - - -
Q: Tell us what difference you've noticed about Mr Rush?
A: Well, you know, usually, we're very - you know, the conversations are not more than 10 or 15 minutes and they're very specific and, you know, we may joke a little bit or, you know, have some personal conversation, but since this incident happened, he has been very focused only on this and, really, everything else has just fallen to the side. I think it will be very difficult for him, because of the way he creates his arts and his roles, to really feel that he can do it again, and he's a perfectionist. As you can see, he didn't get one award; he has won many awards, and nominated for many of the - you know, he's one of the - nobody in our business is the best at anything, but everybody - but you can be tied for number 1, and he certainly is.
…
Q: As an actor. Did Mr Rush disclose or talk to you about how he felt about the articles?
A: Yes, he was devastated by them. I mean, you know, the man has worked his entire life to, not specifically to go and - to become Australia's man of the year or to win awards, but he worked hard at what he has done and he has built a career, and in one moment, a newspaper comes out and just tries to destroy it.
533 Mr Simon Phillips, who was the director of the Melbourne Theatre Company production of Twelfth Night from which Mr Rush withdrew following the publications, also gave evidence about the effect of the publications on Mr Rush:
Q: And what has he said to you? How he feels?---
A: Well, I've been through quite a long journey of discussions with regard to the articles. When the articles first came out Geoffrey was very hurt and very confused, because he couldn't get any information as to what the actual nature of the accusations, if any, had been. So he spent some months - you know, some weeks in a state of anxiety and confusion about what actually was going on. And then, the more that things progressed and it went on, and the more things that came out in different articles, he became angrier and more distressed and eventually we obviously started to talk about the extent to which what was happening publicly would affect his ability to take part in the play.
Q: And did he tell you how he felt about being able to perform?---
A: Yes, he did. We discussed that a lot. He felt that - he felt, rightly I think - - -
534 At this point there was an objection which the Judge overruled, and Mr Phillips's evidence continued:
Q: Sorry. Can you please - do you remember the question?---
A: Yes. Geoffrey's anxiety about - about performing was that he felt that, you know, this is a - this play we were doing is a comedy. He felt very anxious that it would only - at the most extreme, it would only take one person to heckle him as a result of the contents of the articles for the entire - his entire confidence as a performer to deflate, and indeed for the - the - he was very, very concerned also for the morale of the rest of the actors in the production, that they would go on stage nightly with a sense of insecurity and uncertainty, and it is - you know, I need hardly point out that to perform requires a degree of self-confidence and certainty which, if you have every reason to be insecure on a nightly about what might transpire, he was very anxious about that side of things.
535 Following a further objection, Mr Phillips's evidence continued, and he stated:
Q: To your observation, as far as a - from his work perspective, did you observe anything in Mr Rush after these publications that was different to how he was prior to these publications in relation to his attitude to performing?---
A: Yes. He - yes. As I was saying before, he - he increasingly lost confidence in his ability to perform. He became depressed and - and obsessed about - about the nature of - of what was being said about him publicly and his ability to - I felt that his ability to focus on - on - on performing had diminished to a point of no return.
Q: And has he ever spoken to you about, other than your observations of his demeanour, has he spoken to you about how he feels about - and this is more recently - how he feels about performing?---
A: Geoffrey has talked about the fact that the inherent joy that he felt in performing has been beaten out of him by the proceedings over this year.
536 Mr Phillips was not cross-examined by counsel for the appellants.
537 The appellants submitted that the evidence in support of Mr Rush's claim that he was so debilitated by the effect of the publications that he could not act was so unpersuasive that the claim ought to have been rejected. The appellants submitted that the Judge was in error in declining to draw an inference from the failure of Mr Rush to give direct evidence in support of this part of the claim that his evidence would not have assisted the case. They submitted that there had been a fundamental unfairness in not eliciting the evidence, which could then have been the subject of cross-examination. They submitted that had the Judge drawn that adverse inference, then Mr Rush would not have discharged his onus of proving the claim by the evidence of only Ms Menelaus and Mr Specktor.
538 Senior counsel for Mr Rush submitted that there was ample evidence concerning the causal contribution of Mr Rush's emotional state upon his capacity to earn. There was no challenge to the evidence of Mr Rush about his emotional state, and there was no challenge to the evidence of others concerning their observations of Mr Rush's emotional state following the publications. Counsel submitted that the emotional state described by Mr Rush was incompatible with the kind of high-pitch intellectual and emotional engagement necessary for acting at his level. For these reasons, it was submitted that there was no occasion to draw any inference of the kind alleged by the appellants.
539 In support of their submissions, the appellants relied on and read to the Court a passage from the reasons for judgment of Handley JA in Commercial Union Assurance Co of Australia Ltd v Ferrcom (1991) 22 NSWLR 389 (Ferrcom) at 418:
There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates "as the most natural inference that the party fears to do so". This fear is then "some evidence" that such examination in chief "would have exposed facts unfavourable to the party": see Jones v Dunkel (at 320-321) per Windeyer J. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions.
540 In Ex parte Harper; Re Rosenfield [1964-5] NSWR 58, to which Handley JA referred, the applicant was a tenant who was served with a notice to quit residential premises on the statutory ground that she had "reasonably suitable alternative accommodation" available for her occupation, and had an estate in the land upon which the accommodation was situated. The respondents, who were the landlords, obtained a warrant of possession after a hearing before a stipendiary magistrate. The respondents called the applicant as a witness in the proceeding and adduced evidence of her ownership of alternative accommodation, but not as to its availability for occupation. Asprey J held, at first instance, that:
I do not know and was not referred by counsel to any authority which established that proof of the ownership of real property on a particular date is, without more evidence of a right in the owner to possession of that property for the purpose of the owner's personal occupation as at that date, and as the onus lies upon the respondents as claimants to prove the necessary ingredients of fact to establish the prescribed ground in question, I think that they have failed to do so. In any event, I do not think that such an inference is permissible in circumstances where evidence of the fact of ownership is given in a context of other evidence which discloses that the subject premises are let from time to time and are not always available to the owner thereof, and in particular, where the claimants, bearing the onus of proof, refrain from asking the crucial questions in relation to the material date after they had called the owner as a witness in their own case (cf. Marks v. Thompson (1937) 1 NYS (2d) 215, at p. 218).
(Emphasis added)
541 Ex parte Harper; Re Rosenfield was affirmed on appeal: [1964-5] NSWR 1831 (Clancy ACJ, Brereton and Manning JJ). We do not consider that the decision of Asprey J is authority for a general proposition that inferences cannot be drawn in favour of a party who calls a witness and refrains from asking a crucial question, but the case is an instance where the existence of other evidence meant that the failure to ask the crucial question had significance. As Thawley J observed in Stallion (NSW) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [2019] FCA 1306 at [67], the significance of a failure to adduce evidence-in-chief from a witness called by a party varies according to the particular circumstances of the case.
542 In Ferrcom¸ Handley JA also cited Milliman v Rochester Ry Co 3 App Div 109; 39 NYS 274 (1896), which was an appeal from orders made following a civil jury trial where the trial judge drew the attention of the jury to the fact that an eye witness to an accident who had been called by the plaintiff had not been examined on an important issue, and charged that this omission might be taken into account in determining on which side the truth lay. The Appellate Division of the Supreme Court of New York held that the direction was not in error and Follett J, who gave the opinion of the majority, stated at 276:
… I think the omission to interrogate a friendly witness in respect to facts presumably within his knowledge, is more significant than the failure to call such a person as a witness, and that the presumption that the testimony would not have been favorable to the party's case is stronger than the one which arises from the failure to produce such a person as a witness.
543 Ferrcom, and Milliman v Rochester Ry Co, were cited by the Full Court of this Court as being pertinent in Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256; 148 FCR 68 at [159] and [160] (Tamberlin, Mansfield and Allsop JJ). Ferrcom was also cited by the Full Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466, where at [230] the Court (Weinberg, Bennett and Rares JJ) referred to the statements of Handley JA.
544 Some care needs to be taken in approaching the observations of Handley JA in Ferrcom to the extent that his Honour might be taken to have suggested that the relevant inference is that the examination-in-chief would have exposed facts unfavourable to a party. Kirby P, who with Handley JA made up the majority in Ferrcom, gave separate reasons for judgment and did not address the point of principle discussed in the above passages, and did not cite Milliman v Rochester Ry Co: cf, the third and fourth paragraphs of the headnote to Ferrcom at 22 NSWLR 389. The words from the reasons of Windeyer J in Jones v Dunkel at 320-321 which Handley JA cited in Ferrcom were from a passage in Wigmore on Evidence (3rd edition, 1940) vol 2, s 285, p 162, which Windeyer J cited and described as "plain commonsense". The issue in Jones v Dunkel was what directions were to be given to a civil jury in relation to the plaintiff's proof when the defendant had failed without explanation to call a relevant witness. On the relevant point, the other members of the majority in Jones v Dunkel expressed themselves differently. Kitto J at 308 stated that the jury should have been told that "any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence", and that it was proper for them to conclude that the evidence of a witness who did not give evidence "would not have assisted". See also Menzies J at 312.
545 We respectfully agree with Nettle JA (with whom Chernov JA agreed) in Berrigan Shire Council v Ballerini [2005] VSCA 159; 13 VR 111 at [66] that the observations of Handley JA in Ferrcom should not be understood as meaning more than that the failure of a witness to give evidence may enable a tribunal of fact to infer that the evidence which might have been given "would not have helped that party's case", citing Brandi v Mingot (1976) 12 ALR 551 at 559-560 (Gibbs ACJ, Stephen, Mason and Aickin JJ), which in turn approved O'Donnell v Reichard [1975] VR 916 at 929 (Newton and Norris JJ). Nettle JA stated that while the words used by Windeyer J in Jones v Dunkel were apt to imply something more, as did the American authorities which Handley JA considered, the position in Australia was to be governed by the passage which Nettle JA cited from Brandi v Mingot.
546 Subsequently, the principles that may be engaged when a witness called by a party is not asked questions on a particular issue were addressed in obiter dicta in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361, where the majority (Heydon, Crennan and Bell JJ) stated at [63]-[64]:
63 The rule in Jones v Dunkel (58) is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness (59). The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn (60). These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue (61). That problem did not arise here. The plaintiff's counsel did ask the plaintiff relevant questions.
64 The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party …
(Emphasis added and citations omitted)
547 In footnote (61) to [63] as set out above, Heydon, Crennan and Bell JJ cited the reasons of Handley JA in Ferrcom, and continued, "Handley JA stated some stronger propositions in those passages, but what he said is at least authority for what is stated above".
548 The type of inferences that may be drawn from a failure to call a witness, and the effect of such a failure on the cogency of proof, were considered in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 345. In the joint judgment at [165]-[166], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated:
165 Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC.
166 Lord Mansfield's dictum in Blatch v Archer [(1774) 1 Cowp 63 at 65 [98 ER 969 at 970]] that "[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted" is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded … that the maxim was not engaged for "it would have been very improper to have called" the person whose account of events was not available to the court.
549 Their Honours went on to state at [167] that the Court's decision in Jones v Dunkel was "a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used".
550 In the present case, apart from the citation in oral argument of Ferrcom, the appellants' written submission was that the Judge should have drawn an inference that Mr Rush's evidence about the effect of the publications on his ability to work "would not have assisted his case". That submission adopted the conventional understanding of the type of inference that may be drawn upon engagement of the principles referred to in Jones v Dunkel, Brandi v Mingot, Kuhl v Zurich Financial Services Australia Ltd, and Australian Securities and Investments Commission v Hellicar. The appellants' submissions require that the Court review Mr Rush's evidence concerning his frame of mind and his acting work following the publications.
551 Before addressing Mr Rush's evidence, we shall sketch out some of the temporal framework, much of which we have referred to already in other contexts. After the publications on 30 November and 1 December 2017, the proceeding was commenced on 8 December 2017. There were four significant developments in the proceeding in relation to the appellants' defence to Mr Rush's statement of claim. First, and as we have mentioned, a hearing of Mr Rush's application to strike out the appellants' defence to the extent that it pleaded justification and statutory qualified privilege took place on 19 February 2018, and on 20 March 2018, the Judge struck out the relevant paragraphs. Second, on 16 April 2018, there was a hearing of an application by the appellants for leave to file a further amended defence and a cross-claim naming the Sydney Theatre Company. On 20 April 2018, the Judge allowed the application to file a further amended defence in part, but refused leave to the appellants to file a cross claim: Rush (No 2). Also on 20 April 2018, the Judge fixed the proceeding for hearing on 3 September 2018 upon an estimate of eight days. Third, on 27 April 2018, the Full Court dismissed the appellants' application for leave to appeal the Judge's orders made 20 March 2018 relating to the decision to strike out the statutory qualified privilege defence. Fourth, on 8 August 2018, the Judge gave leave to the appellants to file a second further amended defence, in which a reformulated truth defence was raised. As a consequence, the hearing date of 3 September 2018 had to be vacated, and the hearing was re-fixed for 22 October 2018 upon an estimate of 14 days. Mr Rush commenced his evidence-in-chief on 23 October 2018, which was less than 11 months after the publications. Mr Rush's evidence about his frame of mind, and his work situation after the publications, should take account of the relatively short timeframe between the publications and the trial.
552 At the time of the publications, Mr Rush was an actor in his 60s who was in demand, and who had worked constantly and consistently over the years. His work had included theatre, television, film, and narrations and voiceover work. Mr Rush gave evidence that he had not noticed any diminution in the work that he was being offered prior to the publications, and that he had intended to keep working. Mr Rush gave evidence that he had not undertaken any paid work since the publications, and that his income of $45,000 since the publications was on account of residuals. Mr Rush said that he had nothing in the pipeline.
553 Mr Rush was President of the Australian Academy of Cinema and Television Arts, and had been so since 2011. On 1 December 2017, which was the day of the second series of articles in the Daily Telegraph, Mr Rush was asked by the Academy to "step aside" as its President, to which Mr Rush agreed.
554 At the time of the publications, Mr Rush had been engaged to perform the role of Malvolio in the Melbourne Theatre Company production of Shakespeare's Twelfth Night, which was to be staged in late 2018. Twelfth Night had been due to go into rehearsal at about the time Mr Rush gave his evidence, and was to be staged shortly thereafter. Otherwise, at the time of the publications, Mr Rush had completed the film Storm Boy, and was "waiting for the phone to ring".
555 In February 2018, Mr Rush was asked to perform a voiceover for a documentary on the Great Barrier Reef. In April 2018, and on account of the publications, Mr Rush was informed that the producers had withdrawn the offer because of his situation.
556 In mid-2018, Mr Rush took a family holiday in Umbria and then London because of the effect of the "accumulation of events", which included "the wear and tear of toing and froing with News Corp and my legal team", and the fact that his wife's mother had died in early May 2018. While he was away in Italy, Mr Rush pondered whether to go ahead with Twelfth Night. He gave evidence that he "had pretty much made up my mind that the kind [of] mental and physical state that I was in, I would not be able to actually play this role to the best of my ability in this very adult, very dark …". He gave evidence that he spoke to the director of Twelfth Night, Mr Phillips, in London and told him that, "I may have to withdraw from the production, because I don't think I've got it in me." Mr Rush was asked to amplify his evidence about his mental and physical state at the time, and he stated:
… around about March or April the degrees of sleeplessness and poor appetite and feeling hurt myself about the levels of distress it was creating in my son and daughter and my wife and some close friends, but I was weak. I was weakening. And I know the kind of stamina - this play is strong and is challenging in many ways, from the comedy spectrum as Lear. It's a three-hour play. And I know how to read my sense of self - my capabilities. And I had reached - I had hit a brick wall.
557 Mr Rush went on to describe how he thought his presence in the production of Twelfth Night would also spoil it, because of the strain that had been building up, and that he felt that his presence could overwhelm the purity of the play. In June 2018, Mr Rush withdrew from Twelfth Night "because of the events of the last 11 months". Mr Rush described the period after the publications as the "worst 11 months of my life" and stated that the publications were "dismantling how I felt as a person".
558 During the course of Mr Rush's evidence-in-chief, senior counsel for the appellants objected to the evidence about Mr Rush's withdrawal from Twelfth Night on the ground that it was not part of "the special damages claim", and sought that there be a restriction placed on the evidence on the ground that it had not been pleaded or particularised on that issue. The Judge placed a temporary limitation on the use of the evidence on the basis that it was limited as going to Mr Rush's feelings at the time. Later in the trial, senior counsel for Mr Rush applied for the limitation to be lifted, over the objection of the appellants. The Judge reserved on the question, and at [806]-[807] of the reasons for judgment determined to remove the temporary restriction on Mr Rush's evidence. There is no appeal by the appellants from the Judge's decision to remove the temporary restriction.
559 Mr Rush was cross examined about his claim that as a result of the publications he had been unable to work. The cross-examination on this topic commenced with Mr Rush's attention being drawn to one of the assumptions that his expert forensic accountant, Mr Potter, was asked to make in a letter dated 14 June 2018, and to which we have referred at [523] above:
Q: And the paragraph (f) that I'm drawing your attention to is - begins:
As a result of the matters complained of, Mr Rush has been unable to work.
Q: Do you see that?
A: Yes.
Q: Continuing:
As a result of the matters complained of, Mr Rush has been unable to work since publication of the matters complained of, and is unlikely to be able to work for some time in the future.
Q: And that's a letter that your solicitors - turn back one page - you see it's a letter of 14 June 2018 from your solicitors to Mr Potter - to Michael Potter?
A: Yes.
Q: And that letter was sent on your instructions?
A: Yes.
Q: And you see it says there, in that little paragraph (f), that you have been:
…unable to work since publication of the matters complained of, and is unlikely to be able to work for some time in the future.
Q: Do you see that?
A: Mmm.
Q: Well, that wasn't really true, was it, Mr Rush, because you hadn't made up your mind, had you, as at the time that that letter was sent, whether you would appear or not in Twelfth Night?
A: No. It was - doing Twelfth Night was still as high on the agenda, given the circumstances, as it could be.
560 The idea that Mr Rush was capable of working as an actor at his level, notwithstanding the evidence that he gave about his mental and physical state that had led him to withdraw from Twelfth Night, was not explored by the appellants in cross-examination. Indeed, apart from the cross-examination set out at [559] above, the circumstances in which Mr Rush withdrew from Twelfth Night were not challenged by the appellants, and nor did the appellants challenge Mr Rush's evidence that he had nothing else in the pipeline.
561 The appellants' submission that Mr Rush did not give evidence about the debilitating effect of the publications on his ability to act must be rejected. In the context of the only major role for which he was booked at the time of publications, Mr Rush gave evidence about the wear and tear upon him, and the effect that the publications had on his ability to perform the role. The withdrawal from Twelfth Night occurred only a relatively short time before the first hearing date of the proceeding on 3 September 2018, before it was re-fixed for 22 October 2018. In relation to the evidence about Mr Rush's withdrawal from Twelfth Night, the appellants had the opportunity to cross examine Mr Rush, and did so, but only to the limited extent set out at [559] above. In these circumstances, there was no unfairness to the appellants, who appear to have made a forensic choice to leave much of the relevant evidence on the topic of Mr Rush's hurt and his physical and mental state at the time he withdrew from Twelfth Night largely unchallenged. There was therefore no occasion for the Judge to draw any inference that any further evidence of Mr Rush about the topic of his inability to perform would not have assisted his case. The combined force of Mr Rush's evidence, and the evidence of those who were around him, provided solid support for the Judge's findings, which have not been shown to be in error.