The newspaper is appealing the judgment and award of damages, arguing the amount given to Rush is “excessive”, and asking for judgment to be entered for them or for a re-trial to be ordered before a different judge.
On Monday, the newspaper’s barrister Tom Blackburn, SC, told the full court of the Federal Court that the damages for economic loss were “substantial” and based on a belief that Rush couldn’t work, which was “cobbled together with speculation and inferences”.
Mr Blackburn said Rush “delivered his lines in the witness box over a period of about three days” in the trial last year but “there’s one thing he didn’t say: ‘I’m unable to work because of these articles’. He just didn’t say it.”
Justice Richard White interrupted to say of Mr Rush delivering lines: “You mean he gave evidence”.
“Yes,” Mr Blackburn said.
The newspaper has argued in appeal documents that the trial miscarried because the way Justice Wigney conducted proceedings “gave rise to an apprehension of bias”.
This appearance of bias, the newspaper alleges in its appeal, can be taken from multiple parts of the case taken as a whole, including that Justice Wigney referred to the newspaper in “derogatory terms”, used a particular tone of voice, and made “other observations and comments giving the appearance of hostility … and pre-judgment of the issues”.
Justice Jacqueline Gleeson said she had listened to the particular recordings of Justice Wigney nominated by the Telegraph and “wasn’t sure what tone I was listening for”.
“You’ll tell us what the tones are, at some point?” Justice Gleeson asked.
“Yes, your honour,” Mr Blackburn said.
The newspaper has argued that previous judgments in the case, including rulings that two potential witnesses could not give evidence, were also part of Justice Wigney’s appearance of bias.
One of those prospective witnesses, given the name “Witness X” during the trial, was later revealed to be Orange Is The New Black star Yael Stone. She later made public allegations that Rush danced naked in front of her and used a mirror to watch her while she showered. Rush denied the claims.
The other potential witness was Colin Moody, who played the Duke of Cornwall in the production of King Lear and was expected to give evidence that could potentially corroborate Norvill’s account.
Justice White said apprehended bias is “a very serious submission to make”.
Mr Blackburn responded, “It is a very serious matter, your honour, I don’t treat it other than serious.”
Rush sat in the court watching proceedings with his wife Jane Menelaus. His barrister Bret Walker, SC, is expected to make submissions on Tuesday.
The hearing continues before Justice White, Justice Gleeson and Justice Michael Wheelahan.
Georgina Mitchell is a court reporter for The Sydney Morning Herald.