The 'me too' movement

[K]

"The Proceeding related to three publications published by Nationwide News (the Publications):

A Billboard which advertised or promoted a story that was published in the Daily Telegraph on 30 November 2017 (the First Matter);
A series of articles authored by Mr Moran and published in the Daily Telegraph on 30 November 2017, (the Second Matter); and
A series of articles authored by Mr Moran and published in the Daily Telegraph on 1 December 2017 (the Third Matter).
...

It is trite to say that a plaintiff must plead and articulate the alleged defamatory imputations with a great deal of care and precision. In doing so the plaintiff may rely on facts extrinsic to the publication to construe the defamatory imputations. A credible defence will only be maintained if it is responsive to the defamatory imputations pleaded by the plaintiff."


https://hwlebsworth.com.au/geoffrey-rush-v-nationwide-news-pty-ltd-jonathon-moran/

[K]

"The First Matter

... Rush alleged it contained the following imputations that Rush had engaged in:

1. Scandalously inappropriate behaviour in the theatre; and
2. Inappropriate behaviour of a sexual nature.

Rush further contended that in light of the global attention on sexual harassment and assault in the work place (the Extrinsic Facts), the Billboard also contained two further defamatory imputations that he had:

1. Committed sexual assault in the theatre; and
2. Engaged in inappropriate behaviour of a sexual nature in the theatre.
...

The Second Matter

... On the same page and adjacent to the articles concerning Rush was an article regarding the allegations made against Mr Burke which, relevantly, described Mr Burke as a “sexual predator”, and “psychotic bully”. Rush alleged the Second Matter contained the following imputations that he:

1. Is a pervert;
2. Behaved as a sexual predator whilst working on the STC’s production of King Lear;
3. Engaged in inappropriate behaviour of a sexual nature whilst working on the STC’s production of King Lear; and
4. Engaged in inappropriate behaviour against another person over several months while working on the STC’s production of King Lear.

The Third Matter

... Rush alleged the Third Matter contained the following imputations that he:

1. Had committed sexual assault while working on the STC’s production of King Lear;
2. Behaved as a sexual predator while working on the STC’s production of King Lear;
3. Engaged in inappropriate behaviour of a sexual nature while working on the STC’s production of King Lear;
4. As, an acting legend, had inappropriately touched an actress while working on the STC’s production of King Lear;
5. Is a pervert;
6. Had conducted himself inappropriately by touching an actress during King Lear that was so serious that the STC would never work with him again; and
7. Falsely denied that the STC had told him the identity of the person who had made a complaint against him.

Rush also alleged, in the alternative, that the Third Matter contained the Extrinsic Fact Imputations."


https://hwlebsworth.com.au/geoffrey-rush-v-nationwide-news-pty-ltd-jonathon-moran/

[K]

'Witness x' would bring 'entirely new set of allegations' to Rush trial

https://www.theage.com.au/national/ej-norvill-returns-to-court-as-telegraph-seeks-to-amend-rush-defence-20181102-p50dkp.html

[Pies4shaw]

“The categories of abuse of process are not closed.”

[K]

^ Rightly so? Applicable to the Telegraph legal team?

[K]

"In their amended defence filed on 20 February 2018, the Respondents denied the Publications conveyed any of the imputations. They also sought to rely on the statutory defences of justification in section 253 of the Defamation Act 2005 (NSW) (the Act); and qualified privilege, in section 30 of the Act.
...

In “particulars of truth” in respect of the defence of justification included that:

1. In or around November 2015, in an interview with the Sydney Morning Herald Rush described himself as having a “stage-door Johnny crush” on the Complainant. ...;
2. On or about 5 January 2016, Rush touched the Complainant in a manner which made the Complainant feel uncomfortable. This touch, which was not directed or scripted or necessary for the performance of the production, occurred during the final scene of King Lear where Rush carried the Complainant on to the stage;
3. Following the performance the Complainant said to Rush words to the effect “stop doing it”. Despite this alleged demand, Rush repeated the conduct on 4 further occasions. Following each incident the Complainant was visibly upset; and
4. During the after party for the King Lear production Rush entered the female bathroom located in the foyer of the Roslyn Packer Theatre, knowing that the Complainant was in there, and stood outside a cubicle that was occupied by the Complainant. The Complainant told Rush to ‘**** off’ and he left the bathroom. (the Bathroom Incident).
...

Rush sought to strike out the particulars to the defence of justification on the basis they were “both inadequate by reason of their lack of precision and insufficient in the sense that they were not capable of supporting the substantial truth of the imputations they purport to justify“. Rush further sought to have both the particulars to the defence of justification, and the defence itself struck out.
...

The power to strike out pleadings is discretionary and should be exercised with a degree of caution to ensure the “party is not to be denied the opportunity to place his or her case before the court in the ordinary way”.

Particulars to a pleading must “clearly define the issues to be tried, and to allow the other party an opportunity to know the case they are required to meet. If particulars do meet that threshold, “it is difficult to see why they should be regarded as being deficient and liable to be struck out, even if it is possible to conceive of ways the pleading could perhaps be improved”. Particulars, in relation to a defence of justification must demonstrate:

1. They are capable, “at their highest” of showing the truth of the defamatory meaning sought to be justified. In considering whether the particulars establish the “truth” of the defamatory meaning courts must adopt an approach which remains cognisant of the fact that particulars are “simply a summary of relevant facts, and are therefore unlikely to be as fulsome as the evidence that may ultimately be lead to prove those facts”; and
2. They are sufficiently specific to enable a claimant to know the case that they are required to meet. The specificity with which a defence of justification should be particularised is said to be comparable to that of an indictment.
...

Ultimately his Honour concluded that the:

It follows that I am satisfied that the particulars in paragraphs 14 to 24 and 28 are insufficiently precise and specific to constitute proper particulars for a defence of justification in defamation proceedings. They are, in that specific context, evasive and ambiguous: r 16.21(1) (c) of the Rules. They are also likely to cause prejudice or embarrassment in the proceeding: r 16.21(1) (d) of the Rules. That is because they do not give Mr Rush fair or reasonable notice of the case that is made against him and are likely to prejudice his preparation and presentation of his case at trial. I should emphasise that, while I have to some extent dealt with some of the particulars separately, I have also considered the particulars as a whole."


https://hwlebsworth.com.au/geoffrey-rush-v-nationwide-news-pty-ltd-jonathon-moran/

[Pies4shaw]

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2018/357.html

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2018/550.html

[K]

^ From the second link:

"It would not be unfair to say, in all the circumstances, that while Nationwide and Mr Moran were quick to publish, they have been slow to defend."

[HAL]

All?

[K]

Judge rejects Daily Telegraph's bid to call 'Witness X' in Rush trial

https://www.theage.com.au/national/judge-rejects-daily-telegraph-s-bid-to-call-witness-x-in-rush-trial-20181106-p50e85.html

[Wokko]

Believe all women...

https://townhall.com/tipsheet/katiepavlich/2018/11/02/kavanaugh-accuser-i-made-things-up-to-get-attention-n2534477

[K]

[David]

^ #BelieveWomen is actually a pretty standard catchphrase nowadays. Whether it means “all” women or “some” women gets us into Leyonhjelm/Hanson-Young territory, but I think it’s pretty clear in context that it’s supposed to mean “all”.

It exists because it’s psychologically important for abuse victims to not have their (in the vast majority of cases, true) testimonies dismissed, and victims of sexual assault have been far too often ignored and undermined. It’s an unfortunate slogan though because it a) asks us to simply “believe” in absence of factual evidence and even knowing the alleged victim or anything much about them (including whether, for instance, they are a compulsive liar); b) ignores male victims (and perhaps even suggests we side with female perpetrators); and worst of all c) necessitates in many cases that we “believe” that the alleged perpetrator is guilty – an obvious perversion of one of the core principles of justice. One can and should listen attentively, treat alleged victims with respect and not seek to ignore, undermine or dismiss their testimony, but “believe” is a bridge too far imho. Because chances are you don’t actually know what happened.

[Wokko]

[David]

P.S. Some context:

https://www.vox.com/policy-and-politics/2018/11/3/18058832/judy-munro-leighton-brett-kavanaugh-trump-tweet