Performance, Credibility and #MeToo Testimony in Rush v Nationwide News Pty Ltd

ABSTRACT

Rush v Nationwide News, a defamation case between Geoffrey Rush and the publishers of the Daily Telegraph, has been credited with exerting a ‘chilling effect’ on the #MeToo moment in Australia. The case presents an opportunity to explore both the influence of the #MeToo moment on testimony and how such testimony is received, interpreted and evaluated through legal institutions and the processes of justice. Through a close textual reading of court transcripts, media reporting and the judgment of Justice Michael Wigney, this article traces connections between the #MeToo moment, the testimony of the alleged victim-survivor, Eryn Jean Norvill and its circulation and reception within and beyond the courtroom. Taking a law and performance theoretical framework, I argue that both chief protagonists engaged in a performative approach to narrative self-construction in the adversarial courtroom – Rush as a theatrical genius, and Norvill as a #MeToo advocate – that profoundly influenced Justice Wigney's assessment of their credibility as witnesses, providing a platform for the judicial destruction of Norvill's credibility and denying her the truth of her own experience as a victim-witness of workplace sexual harassment. Indeed, the highly performative nature of this case and its connection to the assessment of witness credibility exposes the influence of a range of sexual harassment myths within Justice Wigney's judgment. In this way, Rush v Nationwide News starkly exposes the ongoing epistemic priority of masculine normativity within adversarial justice, veiled within the cloak of neutrality, objectivity and reason that frames the assessment of witness credibility.

KEYWORDS:

• #MeToo
• sexual harassment
• law
• performance
• testimony
• feminist jurisprudence
• defamation
• theatre

1. Introduction

In late 2015 and early 2016, the Sydney Theatre Company (STC) staged a critically acclaimed and highly popular production of King Lear, starring Geoffrey Rush as Lear and Eryn Jean Norvill as Cordelia. On 30 November and 1 December 2017, following the global ignition of the #MeToo hashtag and the revelation of sexual harassment and assault allegations against Harvey Weinstein, Kevin Spacey and other high-profile men in the entertainment industry, the Daily Telegraph, a prominent Australian tabloid newspaper, published articles and a billboard poster accusing Rush of inappropriate behaviour during the production of Lear that had been the subject of a complaint by an unnamed actress to the STC. On 8 December 2017, Rush commenced defamation proceedings in the Federal Court of Australia against Jonathan Moran, the journalist who wrote the stories, and Nationwide News Pty Limited, owners and publishers of the Daily Telegraph. The case was heard before Justice Michael Wigney in October and November 2018, and judgment for Rush entered in April 2019.¹ Justice Wigney found that the publications contained seven defamatory imputations, including that Rush had committed sexual assault, behaved as a sexual predator, was a pervert, and had engaged in inappropriate behaviour of a sexual nature while working on the production of Lear,² and that no defence had been successfully established. An appeal from Moran and Nationwide News was dismissed by the Full Federal Court of Australia in July 2020.³

Eryn Jean Norvill was named as the actor at the centre of the allegations when the defendants filed their Defence in the Federal Court in February 2018.⁴ In April 2016, shortly after Lear closed, Norvill had met with an STC employee and made an informal, confidential complaint regarding Rush's alleged behaviour towards her throughout the production. She sought to raise the issue of workplace sexual harassment with the STC, stressed that she wished to remain anonymous, and did not seek to involve Rush (who the STC did not inform of the complaint). Norvill's informal complaint was subsequently leaked to the Daily Telegraph and formed the basis of the articles published by Moran and Nationwide News without her involvement or consent,⁵ and expressly against the wishes of the STC. Indeed, it was revealed in the pre-trial processes that the defendants had not undertaken basic fact-checking before publishing the stories.⁶ It might be surmised that the defendants’ haste in publishing could be attributed to a desire to compete with their chief rivals within the Australian media marketplace, Fairfax Media, which had already published ‘#MeToo’ stories regarding Australian media personality Don Burke,⁷ and their eagerness to stake their own claim within Australia's unfolding #MeToo moment.

As Michelle Harradine explains, within Australian defamation law ‘once a plaintiff has proved the elements of publication, identification, defamatory meaning, and serious harm, there is no requirement to prove falsity as a matter of liability’.⁸ This amounts to a ‘presumption of falsity’ that ‘places the burden of proof on defamation defendants to establish the substantial truth of the matters complained of as a defence’.⁹ Initially, Moran and Nationwide News plead a defence of justification to Rush's defamation claim on the grounds that the publications were substantially true (known as the ‘truth defence’), as well as a defence of qualified privilege,¹⁰ which permits the publication of defamatory statements in limited circumstances (including the public interest).

In March 2018, Justice Wigney struck out the truth defence on the grounds that the defendants did not have sufficient particulars to support it, leaving the defendants only the defence of qualified privilege, which has historically been of limited use to media publishers.¹¹ In July 2018, however, Norvill agreed to testify for the defendants, enabling them to abandon the defence of qualified privilege and to pursue the original truth defence.¹² Thus, one of the material questions in the trial was whether the allegations published by the defendants were substantially true: whether Geoffrey Rush had engaged in sexually inappropriate behaviour with Eryn Jean Norvill in the course of Lear.

In arguing the truth defence, Nationwide News and Moran relied almost wholly on Norvill's testimony. Norvill testified to several allegations of sexually inappropriate behaviour by Rush that she stated were witnessed by other members of the cast, the director and the production team. Her evidence was either uncorroborated in circumstances where it might have been, or explicitly contradicted, by Rush and other witnesses whose evidence Justice Wigney accepted.¹³ The defamatory imputations of the defendants’ publications were such that even if Norvill's evidence had been accepted, it is unlikely that the behaviour to which she testified would have been sufficient to prove the substantial truth of the defamatory imputations that Rush was a pervert and a sexual predator. On any assessment, it was open to Justice Wigney to find on the balance of probabilities that the defendants did not present sufficient evidence to prove that the defamatory publications were substantially true.

Yet Justice Wigney went significantly further in his judgment than what could have been a straightforward finding that the substantial truth of the defamatory statements had not been proven on the balance of probabilities because Norvill's evidence was either uncorroborated or contradicted, and the defence did not provide sufficient evidence. Instead, in rejecting Norvill's evidence, Justice Wigney embarked on a systematic decimation of her credibility in a way that was uncompromising, scathing and legally unnecessary. The hostility of Justice Wigney's reaction to Norvill as a victim-witness of alleged workplace sexual harassment is worthy of investigation because of what it reveals about the presence and reception of #MeToo agency and advocacy within the adversarial process. Analysing Rush v Nationwide News in this way extends scholarship on feminist activism, agency and witnessing in digital contexts associated with #MeToo and other social media moments to explore how such modes of subjectivity, agency and witnessing may be performed and are received within adversarial justice.¹⁴

Drawing on a law and performance theoretical framework, in this article I trace the interplay between narrative performance, judging and the assessment of credibility in Rush v Nationwide News. I draw on a close textual reading of transcripts of pre-trial processes and the hearing, media reporting, and the judgment itself, in an effort to explore, analyse and account for the destruction of Eryn Jean Norvill's credibility. I argue that throughout the trial both chief protagonists engaged in an explicitly performative narrative self-construction through witness testimony, with Rush constructing himself as a theatrical genius and Norvill performing the role of a #MeToo advocate. In making this claim, I am not suggesting that either Rush or Norvill was engaged in artifice, deception or inauthenticity of any kind; rather, I am attending to the highly performative nature of their narrative self-construction as witnesses and analysing its influence on the case, and in particular on the fact-finding and reasoning methodologies deployed by Justice Wigney. Within Sean Mulcahy's taxonomy of law and performance methodologies, then, my study of this case falls within the ‘case study’ method,¹⁵ with Rush v Nationwide News selected for analysis not only because of its relevance to the trajectory of Australia's #MeToo moment,¹⁶ but also because of what the case's merging of the legal and the theatrical reveals about that very intersection.

In Rush v Nationwide News, the collapse of law into the theatrical reveals the vulnerability of law to narrative performance, particularly in Justice Wigney's assessment of witness credibility; his Honour's reflections on and performance of this judicial task expose the artifice of law's claims to reason, logic and impartiality and dramatise its determination to cling to those masculine norms. That determination is particularly stark in Justice Wigney's evaluation of the consistency and plausibility of Norvill's evidence, in which his Honour's imposing of the inherently male interpretative values of consistency, logic and reason exposes the influence of sexual harassment myths and judicial ignorance of the lived realities of workplace sexual harassment. Indeed, Rush v Nationwide News reveals the value of applying a law and performance theoretical framework to expose the discursive means by which, as Kate Manne argues, credibility deficits reinstate testimonial hierarchies that preserve the power of dominant male interests and perpetrate testimonial injustices on women who complain about gender-based violence.¹⁷

2. Narrative Performance and Witness Credibility in Rush v Nationwide News

Rush v Nationwide News is inextricably intertwined with the theatrical. The events that the defendants alleged occurred, and which were at the centre of the trial, took place within theatrical rehearsals and stage performances. Justice Wigney had been an audience member at an early season performance of Lear.¹⁸ The theatrical context of the case was central to the creation of meanings in the publications that Justice Wigney found to be defamatory, including the publication of what his Honour would later describe as ‘the striking, if not somewhat haunting, STC promotional portrait of Mr Rush, made up as the deranged Lear, above the headline “KING LEER”; no doubt an intentional pun’.¹⁹ The key witnesses in the trial were theatrical professionals who brought their craft into the courtroom. Justice Wigney remarked that one witness for Rush, Helen Buday, created ‘“dramatic suspense” when she couldn't immediately be found to take the stand’; Buday then lampooned the defendants’ barrister, Tom Blackburn SC, by twice singing ‘Truly scrumptious, truly truly scrumptious’ from Chitty Chitty Bang Bang and later refused to leave the witness box when her evidence was complete because she felt that she had more to say.²⁰ The trial recreated on the juridical stage events that allegedly occurred between the two chief protagonists on the theatrical stage, not only through the performance of witnesses, but also in the physical recreation of Rush's alleged behaviour by Norvill, in the use of drawings of the stage, the theatre and the position of actors in relation to each other and the audience in key scenes, and through video recordings of scenes in which Norvill claimed Rush engaged in sexually inappropriate behaviour. This was a trial in which the legal was arguably appropriated, or at the very least merged with, the theatrical.

As Marett Leiboff argues, ‘[t]heatre expects its practitioners to display awareness beyond the self’,²¹ and this is precisely the approach that witnesses in this case took to their courtroom performances. Both chief protagonists engaged in performative storytelling in which they constructed themselves through narratives enacted through their witness testimony. Neither Rush nor Norvill limited their evidence to direct and factual answers to questions, and both used the witness box to convey to the court a sense of who they believed themselves to be both within and beyond the context of the STC production. As Jerome Bruner argues, ‘it is through narrative that we create and re-create selfhood, that self is a product of our telling’.²² The narratives of selfhood performed by Rush and Norvill in Rush v Nationwide News were highly influential in Justice Wigney's assessment of the credibility of each witness and the reliability of the evidence that they gave. In this sense, the law's ‘sometimes uncomfortable relationship to its performance medium and the theatrical double than haunts it’,²³ as described by Julie Stone Peters, lies in the capacity of the theatrical to strip law of its pretence to rationality and impartiality, and to expose its vulnerability to narrative performance – to the stories that witnesses tell about themselves.

2.1. Rush and the Performance of Theatrical Genius

Throughout the hearing, Rush constructed a narrative of himself as a theatrical genius through his performance in the courtroom. The influence of the Rush-as-theatrical-genius narrative is evident throughout Justice Wigney's judgment, including in his Honour's assessment of his credibility as a witness and evaluation of Norvill's evidence regarding Rush's alleged behaviour towards her.

In the opening paragraph of his judgment, Justice Wigney describes Rush as ‘one of Australia's most celebrated actors’ whose return to the STC was ‘hailed … as one of the highlights of its 2015 season’.²⁴ His Honour then includes a biographical paragraph on Rush early in his judgment, detailing his family life, qualifications and professional career. Although Justice Wigney states that Rush's ‘background in film, television and theatre is extensive’ and ‘hardly needs repeating here’, his Honour goes on to list his 1996 Academy Award for Shine and other nominations, and to enumerate his British Academy Films awards, Golden Globes Awards, Screen Actors Guild Awards and AFI Awards. His Honour further notes that in 2014 he was named Australian of the Year and received a Companion of the Order of Australia

for eminent service to the arts as a theatre performer, motion picture actor, role model and mentor for aspiring artists, and through support for, and promoting of, the Australian Arts industry.

‘Mr Rush’, Justice Wigney concludes, ‘was and is renowned worldwide as a talented actor and contributor to the arts’.²⁵ In recounting Rush's professional successes in his judgment, Justice Wigney echoes the tone set for the trial by Bruce McClintock SC, who represented Rush, in his opening submission; McClintock handed Rush a stapled list of every play he had been in ‘and asked him if it was accurate. “It's a lot of opening nights,” Rush remarked’.²⁶

Justice Wigney particularly emphasises Rush's commitment to the Lear production, a joint project with his long-time collaborator and friend, theatre director Neil Armfield. His Honour emphasises that Rush and Armfield had discussed a production of Lear in 2009, that plans crystallised in 2014 and ‘Mr Rush began preparing for playing the role of King Lear in early 2015. That preparation included reading through the script with the key “creative team” and then learning the script. That took “many months”.²⁷ His Honour's celebration of Rush and his commitment to Lear becomes more apparent when contrasted with his description of Norvill's involvement in the production:

Ms Norvill was cast in that role [of Cordelia] by Mr Armfield in June 2015 after a number of other names had been discussed. Mr Armfield sought and obtained the views of a number of people before selecting Ms Norvill.²⁸

Throughout his courtroom testimony, Rush either denied the allegations of sexually inappropriate behaviour against him or explained them in terms of their theatrical and performative contexts, a strategy that at once bolstered his construction of self-as-theatrical-genius and eliminated, or at least minimised, the possibility of alternative interpretations of his behaviour. For example, Rush explained a text message that he sent to Norvill that he ‘thought about you more than is socially appropriate’ accompanied by a googly-eyed emoji with its tongue sticking out as ‘a throwaway line that's actually a joke. I would say, modestly, in the style of Groucho Marx’.²⁹ He also explained hovering his hands over Norvill's body during a key scene not as replicating a groping gesture but instead because ‘he wanted to “feel the silhouette” of Cordelia's “halo” and “torso” during the scene and it was “the interior of my palms wanting to feel the loss of her soul”’.³⁰ Further, Rush became emotional and choked back tears when recounting his process of imagining his own daughter's death to prepare for the scene in which Lear carries Cordelia's body on stage. That scene was central to Norvill's allegations of Rush's sexually inappropriate behaviour, and Rush's performance of the self-as-theatrical-genius narrative, via an extensive account of his preparation for and execution of that scene, was critical to Justice Wigney's assessment of his credibility and to the plausibility of Norvill's evidence, as I discuss below.

Rush's performance of the theatrical genius narrative was reinforced by other witnesses. Justice Wigney's repeated use of superlatives to describe these witnesses – the ‘well-known and celebrated theatre director Mr Neil Armfield’³¹ and the ‘celebrated Australian actor’ Robyn Nevin AM,³² who played the Fool in Lear – reveals the influence of their theatrical status and celebrity. Nevin described Rush's personal and professional contribution to Lear in the following terms:

Geoffrey's demeanour in the rehearsal room is always very positive, cheerful, uplifting … He was really leading the company … his buoyancy and sense of optimism and just general cheerfulness and enthusiasm for the work because he's so steeply – deeply steeped in – in – in being an actor. That's who he is, and he brings all of that enthusiasm. But it's not just that; he also brings research. He's obsessed with his work and, so, every project that he embarks on he researches very thoroughly with extraordinary enthusiasm, and he brings that all to the rehearsal room. So his demeanour is always in my experience cheerful and positive and funny. He's a very cheerful kind of jolly person.³³

Rush brought a similar demeanour into the courtroom. Justice Wigney described him as ‘an impressive witness’ despite his tendency ‘to give very long-winded and wordy answers which did not directly answer the question’.³⁴ His Honour concluded that such answers were given not to avoid answering the question, but rather because ‘he presented as a highly articulate and analytical person who was, by his very nature, prone to giving such complex and wordy responses’ and because ‘when closely analysed, most of his long-winded answers related to the theatre and the play in question, those being matters about which he was clearly passionate’.³⁵ Justice Wigney's acceptance of this narrative of who Rush was – an intellectually rigorous theatrical genius passionate about his work and dedicated to the success of the production – is evident in his description of Rush as a ‘consummate professional’ no less than four times in the course of his judgment.³⁶ The effect of this narrative on his Honour's assessment of the plausibility of Norvill's evidence is particularly powerful, as I discuss below.

2.2. Norvill and the Performance of #MeToo Advocacy

Whereas Geoffrey Rush and other witnesses performed a narrative of self-as-theatrical-genius, Eryn Jean Norvill embarked on a narrative performance framed through #MeToo advocacy, particularly in the context of the theatrical workplace. Norvill was forced into what Leigh Gilmore describes as ‘the public square’³⁷ when she was named as the actor with whom Rush had allegedly engaged in sexually inappropriate behaviour when the defendants filed their Defence; as Norvill has since stated, ‘My experience was not #MeToo, it was #HerToo … My choice to participate was taken away from me by the media’.³⁸ Yet, once she was forced into the public square, Norvill chose to use her position to publicly witness to the harms she had allegedly suffered from Rush, to the harms she saw others in her industry suffer, and to the harms that she viewed as collectively suffered, in a series of acts of narrative self-construction that culminated in her performance of #MeToo advocacy within the adversarial courtroom.

Norvill's testimony takes three forms: an outline or statement of evidence that formed the basis of the truth defence, her oral testimony in court through examination-in-chief and cross-examination, and a public statement she made following the verdict for Rush. Norvill's agency in choosing to testify, the subjectivity that she embodies as a witness, and the framing of her testimony both within and beyond the courtroom, were profoundly influenced by the #MeToo moment, which had ignited in October 2017 – a time that fell between her confidential complaint to the STC in April 2016 and her appearance in court in October 2018. #MeToo offered victim-survivors of sexual harassment and sexual assault new modes of agency and subjectivity through which to reflect on and voice their experiences, and this form of agency may be traced in Norvill's testimonial acts.

Norvill's performance of #MeToo advocacy reflects a layered, complex and increasingly outward-looking form of testimony. Although Gilmore defines ‘testimony’ as ‘those verbal acts in which a person bears witness to harm in a public forum’,³⁹ the term has also been invested with meanings beyond its framing as a first-person narrative of events, or even as the public bearing of witness to harm both within and beyond legal contexts. The cultural purchase and power of testimony has increased through the interplay between personal storytelling, human rights claims and institutions of justice,⁴⁰ in which the testifier carries ‘responsibility to offer a plural perspective on community events, and to take on the role of witness for those who might otherwise be endangered by taking that position themselves’.⁴¹ Gillian Whitlock elevates testimony further still, defining it as ‘first-person accounts of collective trauma, loss, struggle, and survival – a personal story raised to the level of history, which emerges out of a specific political context and rhetorical conditions’.⁴² Norvill's testimonial acts reflect each of these layers of testimony, from bearing witness to harm in a public forum, to taking on the responsibility of bearing witness for others, to projecting her experience into the specific political context of the #MeToo moment and the ‘rhetorical conditions’ it enabled. Although Norvill does not explicitly reference #MeToo, its influence on her testimonial trajectory is apparent as she bears witness to personal harm, harm to others and collective harm.

2.2.1. Silencing the #MeToo Advocate

Norvill's first testimonial act associated with Rush v Nationwide News was a statement of evidence she prepared, with the advice of a solicitor, which formed the basis of the defendants' amended truth defence. Norvill had resisted the defendants’ entreaties to testify for them for several months, and stated during her courtroom evidence that she changed her mind when Rush refused to engage in a mediation with her.⁴³ Norvill's outline of evidence is a first-person narrative of her alleged experience of sexual harassment by Rush throughout Lear and its effects upon her. As a form of testimony, she exerted greater agency and control over her statement of evidence than over her courtroom testimony, in terms of the structuring and sequencing of the narrative, how she positioned herself as a subject in relation to her experience and to the testimony itself, and how she framed Rush's alleged behaviour and the harms it caused her.

Norvill's statement of evidence has never been published. Although it formed the basis of the truth defence, it was not required to be filed in court with the amended defence. Indeed, in the defendants’ application for a further amended defence on 9 August 2018, Justice Wigney took measures to ensure that it would not be published by any possible means, including ensuring that it was not filed and that no part of it was read aloud, through which it would have become part of the court transcript and thus publicly available. By that means, his Honour reasoned, the statement of evidence would become ‘an unrestricted document’ which ‘is then, in the ordinary course, able to be released to the public’:

I am, I have to say, extremely concerned about the draft proof of evidence or statement being made available to the public for a number of reasons. That is because, as I said on the last occasion, the evidence in this case will be heard viva voce, not by way of carefully crafted statements and affidavits.⁴⁴

Two aspects of his Honour's decision-making and language are noteworthy here. The first is Justice Wigney's ‘extreme’ concern about releasing Norvill's statement. His Honour read relevant paragraphs to himself rather than reading them aloud or allowing defence counsel to read them aloud because his Honour did not want to allow ‘great slabs of it into – onto the public record’.⁴⁵ His Honour openly stated ‘I don't want there to be extensive public discussion about the contents of this document’, an explicit juridical privileging of Rush’ reputation and privacy within the proceedings over the possibility they might be used to give voice to Norvill's experience or operate as a forum for #MeToo advocacy. Indeed, the extremity of Justice Wigney's reaction to the possibility of Norvill's voice becoming public through a court process speaks to both the perceived disruptive power of women's voices in the #MeToo moment and to the determination of legal institutions to suppress them by maintaining established testimonial hierarchies. Justice Wigney's determination to exclude Norvill's voice from the public record provides an illuminating background to his Honour's later refusal to allow the actress Yael Stone to testify to her alleged experience of sexual harassment from Rush.⁴⁶

The second noteworthy aspect is his Honour's stated preference, as the finder of fact in the case, for viva voce evidence over the documentary on the basis that

it is often far more reliable to hear it from the horse's mouth, so to speak, rather than carefully crafted statements and affidavits, and so Ms Norvill's evidence will be what she says in court, not what's in this statement.⁴⁷

Justice Wigney's repetition of the phrase ‘carefully crafted statements and affidavits’ implies a suspicion of the veracity, or at the very least a heightened attentiveness to the possibility of artifice, in his approach to Norvill's statement; it is as though her testimony is already being met with doubt.⁴⁸ In this way, his Honour's approach to Norvill's statement bears the trace of the suspicion and doubt with which women's voices are often received, particularly when they are accusing men of sexually assaulting or harassing them. From the moment Norvill enters the process, her testimony is effectively ‘tainted’, to use Gilmore's phrase: ‘to contaminate by doubt, stigmatize through association with gender and race, and dishonor through shame, such that not only the testimony but the person herself is smeared’.⁴⁹ Rather than allow Norvill's ‘carefully crafted statement’ to be publicised, Justice Wigney asserts, it will be Norvill's viva voce testimony – her courtroom performance – that will form the basis of the evidence in the case. His Honour's preference for the performative over the documentary – at this stage of the case – reflects a theatrical approach that ‘turns to the body as the first port of call over the rational mind’,⁵⁰ implying that hearing evidence ‘from the horse's mouth’ – including elements of witness demeanour beyond the semantic, such as tone of voice, manner of speaking, eye contact, gestures and other aspects of Norvill's bodily appearance – will be more reliable than written documents.

2.2.2. Performing #MeToo Advocacy in the Adversarial Courtroom

Norvill's courtroom performance was given over two days, comprising both examination-in-chief and cross-examination. Norvill's courtroom performance reveals three separate layers of testimony as an individual, collective and historic act that was projected into and made possible by the rhetorical conditions of the #MeToo moment. Norvill bears witness to the harm she experienced through Rush's alleged behaviour, to the harm she states his alleged behaviour caused others, and to the broader political and cultural #MeToo moment, as she attempts to bring its powerful potential to bear on her industry.

Norvill made a range of allegations regarding Rush's sexually inappropriate behaviour towards her in the production of Lear: that he made groping and fondling gestures during a rehearsal; that he engaged in sexual innuendo and lewd gestures during rehearsals; that he humiliated her by telling a journalist that he had a ‘stage-door Johnny crush’ on her; that he stroked her breast during a preview performance; that he touched and stroked her lower back on a number of occasions; and that he sent her an inappropriate text message several months after the production had concluded. Norvill's description of her feelings in response to Rush's alleged harassment is resonant with how other women respond to experiencing sexual harassment in the workplace: ‘I felt shocked. I guess I was confused. I mean, to Geoffrey – I considered Geoffrey a friend. I felt belittled and embarrassed and was, I guess, ashamed’.⁵¹ She also describes feeling ‘humiliated, put on the spot … uncomfortable and disrespected’ when Rush told a journalist he had a ‘stage-door Johnny crush’ on her.⁵²

In addition to witnessing to the impact of Rush's alleged behaviour on herself, Norvill also witnesses to the impact of his alleged behaviour on others in the production of Lear. In relation to Rush's allegedly lewd gestures and sexual innuendo, Norvill testifies that they ‘would have been daily, but they weren't just to me’, and that they were also addressed to other women in the cast and crew. Norvill testifies that Rush's behaviour ‘was regular and became normalised in our rehearsal room’⁵³ and, when challenged on this description under cross-examination, explains that the normalisation of his allegedly sexually inappropriate behaviour was ‘a regular part of our day’ and ‘something that you get used to’.⁵⁴ Norvill's use of the phrase ‘normalised’ reflects emerging ways of rethinking, or conceptualising in language, workplace behaviour that might be considered sexual harassment, prompted by the #MeToo moment. #MeToo triggered the possibility of dismantling supposedly ‘normal’ workplace behaviours, naming them as sexual harassment or sexually inappropriate, and revealing them as products of and in turn producing gender hierarchies and gendered harms. Where the ‘normalisation’ of workplace sexual harassment renders both the behaviour itself and its damaging consequences invisible, Norvill channels a growing awareness triggered by #MeToo to make both the behaviour and its consequences visible.

It is in Norvill's witnessing to collective harm that the framing of her testimonial agency through the #MeToo moment is at its clearest and most powerful. Here, her testimony becomes ‘a personal story raised to the level of history, which emerges out of a specific political context and rhetorical conditions’.⁵⁵ Norvill directly brings the power of the #MeToo moment to bear on her individual experience during Lear as representative of the collective experience of sexual harassment perpetrated against women in her industry. She explicitly links the power dynamics within the Lear production, crystallised within the figure of Rush himself, to the rest of the cast and production team becoming ‘complicit’ in his alleged perpetration of sexually inappropriate behaviour towards her:

I was at the bottom of the rung in terms of the hierarchy and Geoffrey was definitely at the top. That was in play. I have to be honest and say that his power was intimidating and his person … Everyone else didn't seem to have a problem about it, you know, so I was looking at a room that was complicit. My director didn't seem to have a problem with it, so I felt quashed, in terms of my ability to find allies.⁵⁶

When cross-examined on this evidence, it was put to Norvill that she was asserting that others ‘were aware of what you say Mr Rush did and they did nothing about it’.⁵⁷ Norvill agreed, describing senior actors who witnessed his behaviour as ‘part of a problem – a cultural problem that maybe – possibly … doesn't see the behaviour as damaging, whereas I believe that it is’.⁵⁸ Under cross-examination, Norvill held her ground and maintained that senior members of the cast, the director and the production crew were complicit: ‘There wasn't a real conversation had about the appropriateness of his behaviour. It was a joke – “Geoffrey, stop that. Geoffrey, don't do that”. That's not having a conversation. That's not saying, “that's inappropriate behaviour. That's sexually inappropriate”’.⁵⁹

On her second day of cross-examination, Norvill's testimony is even more strongly influenced by the #MeToo moment and her identification with a new, modern generation of actors who are prepared to speak out and refuse to accept the kinds of behaviour that, in Norvill's view, have become ‘normalised’ in the theatre. To explain the ‘complicity’ of senior actors and her director, Norvill aligns herself with a younger generation who could be distinguished from established modes of theatrical workplace behaviour: ‘We’re from different generations; maybe we have different ideas about what is culturally appropriate in a workplace’.⁶⁰ Drawing on #MeToo's widespread revelation that perpetrators of sexual harassment are permitted or tolerated because of the inaction of bystanders, Norvill affirms that she considered everyone else who witnessed Rush's sexual harassment to have ‘enabled the behaviour’.⁶¹ Finally, Norvill links the complicity of the cast and crew to ‘a culture of bullying and harassment in that room, and in my industry. And it is accepted and normalised’.⁶² When Justice Wigney questions what Norvill meant by ‘bullying and harassment’, she replies:

There are bullies, and sexual predators, and sexual harassment happens in my workplace, and it happens often; and it happened in that room, to me; and, I believe, people knew about it, but didn't know what to say. They didn't know what to do; they were frightened. And there was a level of hierarchy that kept that fear and silence in place.⁶³

Here Norvill's testimony moves beyond a first-person narrative of individual harm, and harm to others, to invoke a subjectivity associated with the testimonial agency of #MeToo, as Norvill becomes representative of young women who will speak out against workplace sexual harassment that is enabled and tolerated by the professional and cultural power of perpetrators.

2.2.3. Doubting the Witness: ‘Embellishment or Exaggeration’

Rush v Nationwide News neatly dramatises Leigh Gilmore's theory of the process by which the testimony of victim-witnesses of gender-based violence is discredited within the adversarial courtroom.⁶⁴ As Gilmore argues:

Doubting women is enshrined in the law, represented in literature, repeated in culture, embedded in institutions, and associated with benefits like rationality and objectivity. Quite simply, women encounter doubt as a condition of bearing witness.⁶⁵

Seeds of doubt, specifically relating to Norvill's emotional stability and professional competence throughout the Lear season, were sown well before she entered the witness box. Before the trial commenced, Rush's legal representatives sought permission from Justice Wigney (which his Honour largely denied) for access to Norvill's correspondence with a third party in an effort to argue that throughout Lear she was ‘upset about a relationship breakup and not her interactions with the film star’.⁶⁶ McClintock then used these ‘problems in the relationship’ during her cross-examination to challenge Norvill's emotional stability throughout the production, prompting Justice Wigney in turn to question her professionalism: ‘that was something that could possibly have impeded you giving a proper performance in your role as Cordelia, wouldn't it?’. Norvill's assertion of her sense of professionalism is unwavering:

Absolutely not. I’m a professional and I deal in emotions … So if I’m having a difficulty at home or in my life, I’m able to step into the theatre and put that aside. I’m focused. I’m present. I’m very driven and I love my job. That has always come first in life.⁶⁷

Indeed, doubt regarding Norvill's competence in the role and emotional stability was also raised in Robyn Nevin's testimony. Nevin testified that in the context of a later production of All My Sons in which she performed with Norvill in the same theatre as Lear, Norvill approached her ‘in a tearful state’ and said that ‘it reminds me of the trouble I had here with King Lear’. Rejecting the possibility that Norvill was referring to Rush's sexually inappropriate behaviour towards her, Nevin asserted that she thought Norvill was ‘upset over “struggles” she had in playing the role of Cordelia’.⁶⁸ In Norvill's cross-examination, McClintock also raised doubt regarding Norvill's performance and emotional stability by stating that Helen Buday ‘had some pretty strong disagreements with you about some aspects of your performance, didn't she?’.⁶⁹

In her physical performance of #MeToo advocacy – as one who ‘deals in’ emotions – Norvill almost anticipates the doubt with which her testimony will be received by legal actors. In contrast to Rush's gregarious courtroom appearance, Norvill dressed in a black suit and white shirt and wore her hair in a bun, holding her head high as she entered the courtroom and, but for one crack in her voice, maintaining a performance of calm and controlled composure throughout her testimony. It is well documented that when Norvill was accused of making up the allegations, of fabricating evidence to ‘blacken’ Rush's name and ‘smear him’,⁷⁰ and of lying, Norvill repeatedly paused, turned her head to face Justice Wigney, and calmly replied ‘“Your Honour, I am not lying”’.⁷¹ Norvill's pause is noteworthy in terms of the theatrical nature of her courtroom performance and the meanings invested in it in terms of her #MeToo advocacy. As Mulcahy argues, silence within legal performance ‘operates to attune the audience to the proceedings in the same way as it brings the audience in when used in theatrical performance’.⁷² Norvill's pause is a form of what Mulcahy describes as ‘silence for effect, the separation out of words or actions for emphasis’ (emphasis in original).⁷³ As Mulcahy argues, ‘an actor will know that an intelligent use of pause lends greater presence’,⁷⁴ and this is precisely how Norvill deploys the pause and the physical turn to Justice Wigney in defiance of the doubt with which her testimony is met. The pause captures the attention of the judge and heightens the sensations of the audience in response to her testimony.

Did Norvill's testimonial performance, then, defy doubt and reach what Gilmore describes as an ‘adequate witness’:

one who will receive testimony without deforming it by doubt, and without substituting different terms of value for the ones offered by the witness herself … when confronted with the charged demands of testimony, an adequate witness resists the rush to judgment and learns how to attend to accounts of gendered harm.⁷⁵

In the adversarial courtroom, Norvill accessed a ‘testimonial network’: a ‘circulatory system … across which persons and testimony flow’ encompassing not only the court itself but also ‘news media and a host of online sources’.⁷⁶ Reportage across a range of media outlets, including Lane Sainty at Buzzfeed Australia, Jenna Price at Fairfax and Alison Croggan at Witness Performance,⁷⁷ together with the emergence of the #IStandWithEJ hashtag on the social media platform then known as Twitter,⁷⁸ suggest that Norvill's testimony did, indeed, reach witnesses who were prepared to ‘receive her testimony without deforming it by doubt’.

An adequate witness to Norvill's testimony, however, was not to found in Justice Wigney, whose judgment, far from attending to the complexity of the gendered harm Norvill described, reinscribed inherently masculine logics to reenact the doubt with which women's testimony of gender-based violence is so often met. In the same way that Rush's performance of self-as-theatrical-genius influenced Justice Wigney's assessment of his credibility, so too did Eryn Jean Norvill's performance of #MeToo advocacy in the adversarial courtroom. Although his Honour found Norvill to be ‘an intelligent, articulate and confident witness who was endeavouring to give an honest recollection of the events in question’ who ‘gave direct and responsive answers to questions, including during cross-examination. She did not appear to be either nervous, uncertain or evasive’,⁷⁹ he concluded that she was ‘a witness who was, at times, prone to embellishment or exaggeration’,⁸⁰ a combinations of words his Honour used to describe Norvill no less than four times throughout his judgment.⁸¹ Each time Justice Wigney uses the words ‘embellish and exaggerate’, or their derivatives, to describe Norvill's testimony, it is in connection with her performance of #MeToo advocacy within his courtroom, and specifically with her allegations regarding the hierarchy that operated within the rehearsal room, regarding the ‘normalisation’ of Rush's alleged behaviour towards her, and with the ‘complicity’ of other members of the cast and crew in enabling that alleged behaviour. For example:

Ms Norvill's apparent willingness to cast aspersions on Ms Nevin, Ms Buday and Mr Armfield, even if she did not intend to do so, did not reflect well on her credibility and reliability as a witness. It displayed a propensity to exaggerate and embellish.⁸²

To Justice Wigney, each of Nevin, Buday and Armfield is ‘a highly-qualified, experienced, accomplished and well-respected, if not revered, figure in theatre circles. No question was raised about their character or integrity. Nor could it have been’.⁸³ Here his Honour appears to suggest that Geoffrey Rush, Helen Buday, Neil Armfield and Robyn Nevin, are not only above the kind of behaviour that Norvill has suggested they engaged in, but also above having any aspect of their character and integrity called into question by Norvill. Throughout this judgment, then, Justice Wigney effectively recreates the precise power hierarchy Norvill claimed operated in the STC rehearsal room and throughout the production of Lear: ‘revered’ theatrical geniuses are accorded testimonial priority, and Norvill is ‘at the bottom’ of the testimonial hierarchy.

3. Witness Credibility and the Narrative Performance of Judging

Justice Wigney's finding that Norvill was ‘a witness prone to embellishment or exaggeration’ because of her #MeToo advocacy then had the effect, in his Honour's view, of tainting the quality and reliability of all the evidence she gave in the trial. Justice Wigney's dismissal of the reliability of Norvill's evidence is illuminated by his Honour's reflections on the appropriate process for assessing witness credibility in the context of the adversarial trial. Although in the pre-trial process discussed above his Honour expressed a preference for the performative – ‘viva voce evidence’ – over the documentary – ‘carefully crafted statements and affidavits’ – in his judgment he then dismissed the most performative aspect of viva voce evidence – ‘witness demeanour’ – as an index of witness reliability: ‘judges have often been cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability based solely or mainly on the appearance of witnesses’.⁸⁴ In place of witness demeanour, Justice Wigney elevated ‘consistency’ and ‘plausibility’ as the more valuable indicators of the reliability of a witness's evidence, specifically:

whether the witness has previously given an account of the events in question and, if so, whether that previous account is consistent or inconsistent with the evidence given by the witness; the plausibility and apparent logic of the events described by the witness; and the consistency of the account of the events described as compared with other objectively established events. Such considerations often turn out to be a much surer guide to the reliability of the evidence given by a witness about disputed events.⁸⁵

Citing Atkin LJ, Justice Wigney claims ‘the value of the comparison of evidence with known facts, is worth pounds of demeanour’ and declares Rush v Nationwide News ‘a case where such considerations, as opposed to witness demeanour, provide the main key to resolution of the conflicts in the evidence’.⁸⁶

In doubting the veracity of witness demeanour Justice Wigney reflects a common judicial approach to the assessment of witness credibility, which was upheld on appeal. The reliability of witness demeanour is widely doubted, leading several judges to question its value as a method of judicial fact finding.⁸⁷ Noting ‘how little attention has been given to this facet of the judicial task’, Justice Ipp favours probability and consistency over demeanour in his assessment of judicial fact finding, describing a finding based on demeanour as ‘essentially an intuitive exercise’ and asserting that ‘it is the absence of rationality that makes demeanour findings so arbitrary, so ephemeral, so uncertain, so personal and subjective, so susceptible to unconscious prejudice, so susceptible to error’.⁸⁸ More recently, Justice Mostyn describes ‘reliance on a witness's “demeanour” or non-verbal clues’ as ‘surely a most unsafe judging technique’⁸⁹ and Chief Justice Kiefel, while conceding that ‘demeanour can on occasions be telling’, emphasises that it is ‘not always a reliable guide’ and stresses the need ‘to be careful about reaching conclusions about people's credibility based upon matters of impression’.⁹⁰ Both Justice Mostyn and Justice Barry specifically stress the susceptibility of demeanour evidence to the trained performer, noting respectively that ‘a skilled actor will likely fool a judge’ and that ‘the witness box is generally a far better forum for the con-man … or the actor than for the honest citizen forced into the litigation arena’.⁹¹

Justice Wigney's stated preference for consistency and plausibility over demeanour, then, is a broadly orthodox approach. What is different in this case, however, is the narrative performance of the judge in explicitly reflecting on his implementation of this methodology. Justice Wigney may have been prompted to reflect on the value – or lack of value – of witness demeanour because of the overtly theatrical nature of the case and the highly performative testimony of the two chief protagonists. Confronted, perhaps, with Norvill's calm and controlled demeanour, her theatrical pause as she addressed him to defy the doubt with which her testimony was met, and her embodiment of the #MeToo advocate, his Honour may have sought in part to justify his finding that she was an unreliable witness prone to embellishment and exaggeration by reference to external authorities on judicial methods for findings of fact.

Yet a close reading of the judgment reveals that despite Justice Wigney's ostensible elevation of consistency and plausibility over witness demeanour, his Honour's assessment of the consistency and plausibility of the evidence exposes the clear influence of witness demeanour, and specifically Rush's construction of the self-as-theatrical-genius narrative, on his fact-finding. Thus, while on the one hand Justice Wigney's stated distrust of witness demeanour allows him to dismiss Norvill's narrative performance of #MeToo advocacy, the influence of Rush's narrative performance remains, cloaked in a reasoning process that is removed from the ‘intuition’ described by Justice Ipp and its association with the ephemeral, uncertain and subjective,⁹² and grounded instead in the language of rationality, objectivity and logic that accompanies the values of consistency and plausibility. As Gozdecka argues, ‘using theatre allows us to strip law of its aura of secrecy and its cloak of mysticism’;⁹³ analysing Justice Wigney's narrative performance of judging, and his assessment of the theatrical performances of the two chief protagonists, reveals the artifice of law's pretence to objectivity, fear of the disruptive effects of #MeToo testimony, and the persistence of masculine norms, values and experience despite the #MeToo moment.

4. Consistency, Plausibility and Sexual Harassment Myths: Law's Vulnerability to the Performative Witness

Justice Wigney's dismissal of witness demeanour and emphasis instead on consistency and plausibility as ‘the main key to resolution of the conflicts in the evidence’⁹⁴ – put differently, where it is ‘he said/she said’ – privileges the two methods of evaluating witness credibility and the reliability of evidence that are well-documented as concealing the justice system's inherently masculine norms and denial of women's experience under a cloak of ostensible rationality, impartiality, objectivity and logic.⁹⁵ In this respect, Rush v Nationwide News is no different to countless trials in which a victim-witness of alleged gender-based violence is effectively denied the truth of her own experience. As a finder of fact obliged to give reasons, however, Justice Wigney's privileging of consistency and plausibility places him in the position of evaluating what might and might not be rightly judged as ‘plausible’ and ‘consistent’ for a victim-survivor of workplace sexual harassment. It is apparent throughout the judgment that his Honour performs this task – in terms of both the reliability of Norvill's testimony and the plausibility of Rush's alleged behaviour – through a lens of masculine normativity that is strongly influenced by a range of widely discredited sexual harassment myths.

In their foundational study on sexual harassment mythology, Kimberly A. Lonsway, Lilia M. Cortina and Vicki J. Magley describe sexual harassment myths as ‘attitudes and beliefs that are generally false but are widely and persistently held, and that serve to deny and justify male sexual harassment of women’.⁹⁶ Lonsway et al classify sexual harassment myths into four categories: (1) that women fabricate and exaggerate sexual harassment (including myths that women must have invited or caused the harassment, and myths associated with a failure to complain about or report it at the time), (2) that women have ulterior motives in alleging sexual harassment, (3) that sexual harassment is natural heterosexual behaviour that is normal for men and enjoyable for women, and (4) that it is the victim's responsibility to stop the sexual harassment.⁹⁷ Myths associated with each of these categories are evident in Norvill's examination-in-chief and cross-examination and in Justice Wigney's judgment; specifically, Norvill's decision not to complain about or report the alleged harassment at the time, her supposed desire to smear Rush's reputation, assertions that she was sexually interested in Rush and the projection of responsibility onto Norvill to stop the alleged harassment. Indeed, Justice Wigney's characterisation of Norvill as a witness prone to exaggerate and embellish places his Honour within a long tradition of men associating sexual harassment with women fabricating and exaggerating their lived experience.

To these can be added a further workplace sexual harassment myth that surfaces repeatedly in Justice Wigney's judgment, but which has been identified and discredited by a range of sources, including the Australian Human Rights Commission's (AHRC) Respect@Work Report.⁹⁸ This is the myth that workplace sexual harassment occurs because of the lust or sexual desire of the perpetrator for the victim. This myth has been wholly discredited by UN Women, employment discrimination scholars, the AHRC and numerous academics, government and non-government bodies who made submissions to the National Inquiry.⁹⁹ Yet a desire for sexual gratification is repeatedly cited by Justice Wigney as the assumed driver of Rush's alleged behaviour, and, following that assumption, then forms the basis for his Honour's dismissal of that alleged behaviour as ‘implausible’. Rather than being driven by lust or desire, workplace sexual harassment, according to the AHRC, is a form of gender-based violence that is primarily associated with power: specifically with gendered power, and with hierarchical power structures within workplaces, the exact conditions described by Norvill in the STC rehearsal room in her performance of #MeToo advocacy.

Justice Wigney's view that workplace sexual harassment is driven by sexual desire rather than power means that his Honour fails to acknowledge or appreciate the position of power and privilege in which Rush was clearly placed in the context of the production of Lear, or the vulnerable position occupied by Norvill. The total absence of that awareness throughout his Honour's judgment leads his Honour to conclude that several aspects of Norvill's evidence are inconsistent or implausible which, if observed by a victim-survivor of workplace sexual harassment, might contrastingly appear wholly consistent and plausible in the light of the alleged gendered power hierarchy of that workplace. The systemic nature of this problem within the judiciary is illustrated by the appeal, in which the Court acknowledged the power disparity within the theatrical workplace yet perpetuated similar sexual harassment myths in assessing his Honour's findings regarding the consistency and plausibility of Norvill's evidence.¹⁰⁰

4.1. Consistency

In elevating consistency as an indicator of the reliability of evidence, Justice Wigney attempts to signal his awareness of Norvill's position as an alleged victim of gender-based violence, noting his ‘regard for the somewhat difficult and unusual position she was in when she gave her evidence’ and stating that he was ‘mindful that people who make allegations relating to sexual assault or sexual harassment are often in a particularly vulnerable position and can experience unique and difficult challenges when giving evidence’.¹⁰¹ His Honour also notes the difficulties that victim-witnesses experience in giving evidence about traumatic events, including that ‘the witness is required to give evidence some considerable time after the events in question’, that ‘sometimes the witness's recollection can … appear vague and uncertain’ and that ‘[t]he absence of corroboration is also a common feature of cases involving sexual harassment’.¹⁰² Although Justice Wigney claims to ‘have taken them into account in assessing Ms Norvill's evidence’,¹⁰³ his judgment demonstrates no specific or explicit application of these considerations with regard to Norvill's testimony; rather, he evaluates the consistency of the evidence with the same values as would be used in relation to any witness. These statements essentially operate as platitudes to offer judicial cover for the demolition of Norvill's testimony using the very tools that repeatedly inflict epistemic harm on victim-witnesses of gender-based violence.¹⁰⁴

Justice Wigney identifies several inconsistencies between Norvill's ‘carefully crafted statement’ of evidence and her courtroom testimony. Norvill testified under cross-examination that she ‘wrote the statement’ of evidence, that it went through several drafts with her solicitor, and that she ‘knew it had to be true’.¹⁰⁵ In her courtroom evidence, however, Norvill added several allegations of Rush's sexually inappropriate behaviour that she had not included in her statement of evidence. She was extensively cross-examined on the differences between her statement and her examination-in-chief, explaining that ‘there are a bunch of things that came to me after I wrote that. My memory isn’t – [witness interrupted]’¹⁰⁶ and that ‘it's something that came to me later … I don't know’.¹⁰⁷ In addition to challenges with her memory Norvill reveals other concerns pertinent to the lived experience of workplace sexual harassment that influenced her statement of evidence. First, she reveals that she was acutely aware that in voicing her experience through the statement she was unavoidably implicating others and wished to be very careful about who she was involving in the proceedings:

I was very, very aware that putting anyone's name in the statement would be very hard for them, so I tried to put in the very clearest memories that I had.¹⁰⁸

Second, she expresses uncertainty over what should or should not be included ‘because it's difficult to define whether that action is crossing boundaries’.¹⁰⁹ This resonates strongly with the experience of workplace sexual harassment victim-survivors; in its 2018 national survey on sexual harassment in Australian workplaces, the AHRC found that almost half of people who did not report or complain about workplace sexual harassment ‘did not report because they thought people would think they were overreacting’.¹¹⁰

Memory, fear of implicating others and uncertainty over what is and is not ‘sexual harassment’ point to the role that reflection and narrative self-construction inevitably play in the retelling of testimony through a trial process. If, as Bruner argues, ‘it is through narrative that we create and re-create selfhood, that self is a product of our telling’,¹¹¹ then it is impossible for that telling to remain static across a trial process. The development of Norvill's testimony here signals the influence of the #MeToo moment, as she reflects more on her experience throughout the STC production and begins to re-evaluate some of the alleged behaviour that was ‘normalised’ within that workplace. As Norvill states: ‘I’ve had to think over this time in my life again and again and again and again, and those words came to the fore’.¹¹² Justice Wigney, however, found Norvill's explanations of the discrepancies between her statement of evidence and her viva voce evidence ‘difficult to accept’.¹¹³ His Honour states ‘that could perhaps amount to a reasonable explanation if the additional “things” were relative few in number and relevantly minor in importance and significance’.¹¹⁴ Justice Wigney here imposes the evidentiary standards that, as Harradine argues, ‘place requirements of reasonableness and rationality upon the memory of victim-survivors to reinforce the notion that the feminine experience is not credible’.¹¹⁵

Having rejected much of Norvill's viva voce evidence because of its lack of consistency with the statement of evidence, Justice Wigney then goes on to reject the reliability of the statement of evidence itself because of its inconsistency with a previous record of Norvill's account of her experience. This record was an internal STC email created following Norvill's informal meeting with an STC employee at a Sydney pub in April 2016, during which Norvill confidentially discussed Rush's alleged behaviour. In addition to being cross-examined on the inconsistencies between her viva voce evidence and her statement of evidence, Norvill was also cross-examined on inconsistencies with the email record of this meeting. Initially, Norvill was cross-examined on those inconsistencies even though the email was not her document,¹¹⁶ and once the email was admitted as evidence by counsel for Rush under an exception to the hearsay rule that enables the admission of business records,¹¹⁷ it was put to Norvill by counsel for Rush, that ‘the only reason you would have said it was to blacken his name and smear him’ and ‘you told … a whole pack of disgusting lies about my client’.¹¹⁸ Despite Norvill's protest ‘these are not my words, so no, this is not quoting me’,¹¹⁹ Justice Wigney ensured the ultimate silencing of the #MeToo advocate within the adversarial court process by accepting the evidence of the STC email over any form of testimony offered by Norvill in the case. His Honour found the email more reliable than anything Norvill had to contribute to the process, stating that ‘there is no sound basis to find that the outline was inaccurate in material respects, or was otherwise an unreliable record of what was said’,¹²⁰ even though Norvill's conversation with the employee took place over several hours, they both consumed alcohol throughout the meeting, and the writer of the email took no notes at the time. In a singular example of the epistemic harm the adversarial system inflicts on victim-witnesses – by which women are denied the status of being knowers of their own experience – Justice Wigney reasoned that an untested email prepared by a third party was more reliable than any account offered by Norvill of her own experience, a finding that was upheld on appeal.¹²¹ As Harradine argues, Rush v Nationwide News is ‘[p]erhaps the most prominent example of epistemic harm in the context of defamation proceedings’ associated with Australia's #MeToo moment.¹²²

4.2. Plausibility

It is in his assessment of ‘the plausibility and apparent logic of the events described by the witness’ that Justice Wigney's judgment most starkly reveals the influence of witness demeanour – specifically the Rush-as-theatrical-genius narrative – and the role that sexual harassment myths have played in his evaluation of evidence. In assessing the plausibility of evidenced offered by Norvill and Rush, Justice Wigney has recourse to an index of logic and reasonableness that reflects the inherently masculinist norms of the adversarial courtroom rather than any consideration of what might be considered logical or reasonable for either a victim-witness or perpetrator of workplace sexual harassment. Justice Wigney's privileging of masculine norms of plausibility over the lived experience of workplace sexual harassment is particularly stark in relation to three aspects of Norvill's evidence: her statements to journalists while promoting King Lear, her allegation that Rush deliberately touched her breast in the final scene of the play and her allegation that Rush stroked her back when preparing for the final scene.

In explaining his evaluation of the evidence in relation to each of these matters, Justice Wigney's judicial performance defaults to asking rhetorical questions that directly probe the central conundrum regarding the apparent logic or plausibility of the evidence. Rhetorical questions are forms of questioning that are used less to elicit an answer than to emphasise a point being made by the writer. To be effective, however, there must be a clear, obvious and indisputable answer to the rhetorical question and meaning shared between the writer or speaker and their reader or audience; without that shared understanding, the rhetorical emphasis fails to land. In posing rhetorical questions, then, Justice Wigney assumes such a shared understanding between himself and his audience of what is and is not plausible in the context of workplace sexual harassment: an assumption that the logic and reason that underpin the concept of ‘plausibility’ within this context are so universal and widely shared that they do not require actual explanation and that they (literally) go without saying. Norvill's account of what allegedly occurred is, through this rhetorical technique, effectively positioned beyond the domain of rationality that underpins the understanding Justice Wigney presumes that he shares with his assumed reader. Norvill is, in this way, positioned as ‘other’ within the masculine normative epistemology deployed by the judge.

If, however, the reader of Justice Wigney's judgment is not someone who shares his view of what is or is not plausible in the context of workplace sexual harassment – someone who might be one of the 85% of Australian women who have been sexually harassed in the workplace during their lifetime¹²³ – his Honour's questions lose their rhetorical sting. If such a reader was to interpret the judgment through the lens of their own knowledge and experience rather than accepting his Honour's assessment of the plausibility of the allegations, they might, like Norvill, effectively be forced into a position of interpretive dissonance because the point that his Honour seeks to emphasise through rhetoric does not, in fact, ‘go without saying’. By this process, Justice Wigney effectively ‘others’ not only Norvill as a knower of her own experience, but also many other victim-survivors of workplace sexual harassment.

One example of this interpretive dissonance occurs in Justice Wigney's analysis of interviews that Norvill gave to journalists, with Rush and other cast members, for the purpose of promoting Lear. Norvill submitted that Rush's statement to a journalist that he had a ‘stage-door Johnny crush’ on her, a phrase Rush described as intended to be ‘whimsical’,¹²⁴ made her feel ‘uncomfortable, embarrassed and compromised’.¹²⁵ Indeed, this is precisely the type of behaviour that the AHRC found ‘can have a significant impact on victims and the broader workplace, reinforcing gender inequality and marking spaces as “masculinised” in a socially acceptable way’.¹²⁶ Yet Justice Wigney found it ‘implausible’ that Norvill could both feel disrespected and uncomfortable by something Rush said and in the same interview state that she ‘appreciated his playfulness and loved his ebullience’, asking for rhetorical emphasis: ‘Would she have said those things if she was feeling humiliated, uncomfortable or disrespected as a result of what Mr Rush had said?’¹²⁷ If Justice Wigney's reader shares his understanding of the masculine norms inherent within that rhetorical question, the assumed answer might be ‘no’. If, however, Justice Wigney's reader is among the 25% of women who experience workplace sexual harassment and choose to manage it themselves by going along with the joke, ignoring the incident or avoiding the perpetrator¹²⁸ – the answer to this question might well be to consider Norvill's response highly plausible in the circumstances. As Norvill stated in cross-examination, using her own rhetorical questions:

What was I supposed to say? … that – ‘oh and by the way, I don't know if Geoffrey has the right intentions towards me. I don't find his jokes that funny, actually; they make me feel small as a human’. What was I supposed to do? ¹²⁹

Although Justice Wigney found it ‘difficult to imagine’¹³⁰ that Norvill could have spoken positively to journalists about working with Rush while allegedly experiencing sexually inappropriate behaviour from him, victim-survivors of workplace sexual harassment may experience no such difficulties in reconciling what to his Honour are two ostensibly inconsistent facts. Rather than appreciating the difficulty of Norvill's situation, Justice Wigney essentially accuses her of lying to the journalists:

[i]t is difficult to accept that this is a reasonable or persuasive explanation for telling what, on Ms Norvill's subsequent version of events, was, at the very least, a misleading impression of what she actually felt at the time about working with Mr Rush.¹³¹

Justice Wigney here seems to imply that the appropriate course of action for Norvill in these circumstances was to openly discuss her experience of sexual harassment in front of the alleged perpetrator, other cast members and a number of journalists, encapsulating his Honour's total ignorance of the power dynamics and gender hierarchies that underscore workplace sexual harassment, the personal and professional challenges that victim-survivors face in reporting, and any interest Norvill might have had in maintaining a sense of privacy over what she was allegedly experiencing.

A second instance of interpretive dissonance arises in the context of Justice Wigney's extensive reliance on the concept of plausibility in rejecting Norvill's evidence regarding the most serious allegations of sexual harassment against Rush, both of which were associated with the climactic final scene of Lear: stroking Norvill's breast as he cradled her body on stage, and touching her lower back under her shirt multiple times before lifting and carrying her onto the stage for the final scene. Justice Wigney's reasoning rests on multiple assumptions regarding the parties involved, particularly Rush and Armfield, about the theatrical context in which the allegations took place, and about the nature of workplace sexual harassment.

Norvill's evidence was that before the final scene of Lear, as she was standing on a chair waiting to be lifted and carried onto the stage, Rush would stroke her lower back under her shirt, and that during the final scene, as Lear cradles the body of his daughter Cordelia, Rush intentionally stroked her breast.¹³² Rush denied the allegations and gave extensive evidence regarding the final scene of Lear, which Justice Wigney quoted at length. This aspect of Rush's testimony was, perhaps, the crescendo of his performance of the self-as-theatrical-genius narrative, in which, according to media court reports discussed earlier, his demeanour was the most impassioned and emotional. Rush testified that the scene was ‘the biggest challenge of the whole production’ that ‘could make or break a performance any night’.¹³³ He outlined the mental process by which he prepared for the scene, recounted by Justice Wigney, by imagining

that it was my own real-life daughter … and that she had been hit by a bus and on the street near where we live in Camberwell and I knew she was gone. I carried her to the footpath and every night I would reinvent that scene in my mind¹³⁴

and

work on emptying or shedding his mind so as to get into the ‘zone’ – an ‘alert state of neutrality’ and ‘moment of pure inner-stillness’ – and prepare himself not only for the difficult technical act of carrying Ms Norvill onto the stage, but also to prepare for ramping himself up so that the first ‘howl’ would burst out of him.¹³⁵

Rush gave evidence that it was ‘preposterous’ that he would have engaged in the conduct alleged by Norvill because ‘the relationship between King Lear and Cordelia contributed an “enormous spine” to the play and was “vital to the emotional landscape” of the play’ and that such behaviour on his part ‘would have destroyed his relationship with Ms Norvill and therefore destroyed the dramatic relationship between King Lear and Cordelia’.¹³⁶

Demonstrating the influence of the Rush-as-theatrical-genius narrative and, through it, the ongoing relevance of demeanour evidence on his fact-finding, Justice Wigney found Norvill's allegations to be highly implausible because they were ‘inconsistent with Mr Rush's dedication and professionalism as an actor’, entirely at odds with the unchallenged evidence he gave about how he mentally prepared himself for the scene, which included meditating and emptying his mind and then imagining Cordelia was his real life daughter who had been hit by a bus¹³⁷ and because he was ‘the consummate professional’.¹³⁸ His Honour again defaults to rhetorical questions in his apparently shared understanding with his reader, asking:

How could Mr Rush maintain the focus and state of mind which he considered necessary to properly perform this difficult scene, and yet engage in such a base and crude action as intentionally stroking Ms Norvill's breast?

How is the act of intentionally stroking Ms Norvill's breast compatible with the obvious need for Mr Rush to maintain a close professional rapport and relationship with Ms Norvill throughout the play?

How could Mr Rush maintain the necessary dramatic relationship between Lear and Cordelia if he engaged in such behaviour?¹³⁹

His Honour takes a similar approach to explaining his finding that the allegation that Rush inappropriately touched Norvill's back before carrying her on for the final scene:

The point, in short, is whether it is plausible that, having worked to get himself into the ‘zone’ before this critical scene, Mr Rush would engage in a gratuitous act of rubbing Ms Norvill's back under her shirt, apparently for his sexual gratification?

How is that compatible with Mr Rush's recognition of the critical nature of the scene and the fact that ‘there was no coming in under par on that level of raw primal grief’ which he had to convey?

How is it compatible with Mr Rush's unchallenged evidence that he went through a process of emptying his mind so as to put himself into a ‘neutral but alert state of mind’ so the first ‘howl’ would burst out of him as he carried Ms Norvill onto the stage?’¹⁴⁰

The influence of the Rush-as-theatrical-genius narrative is clear in these two sets of rhetorical questions. If that narrative is removed, however, these questions might be rephrased as:

Is it plausible that a man assured in his professional status and standing would risk his professional relationships and the success of a workplace endeavour by engaging in workplace sexual harassment?

Although Justice Wigney might continue to apply standards of logic and reason that would answer that question in the negative, the overwhelming evidence of the #MeToo moment has demonstrated that the answer to that question will often be ‘yes’. Men who are senior and influential within their professional contexts take precisely those risks because gendered hierarchies of power within the workplace ensure that they are able to do so with few consequences for themselves. These questions also reveal Justice Wigney's belief that workplace sexual harassment is driven by sexual desire and a yearning for gratification rather than those same gendered hierarchies. Justice Wigney's evaluation of the plausibility of Norvill's allegations might more simply and directly be stated as follows: ‘Ms Norvill's allegations are implausible because the alleged perpetrator is the theatrical genius Geoffrey Rush and he wouldn't do that’.

Interestingly, while Rush's ostensible professionalism is a recurring theme in Justice Wigney's judgment, his Honour dismisses any attempt by Norvill to appeal to her own sense of professionalism to explain her responses and decision-making regarding the alleged harassment. This dismissal of the possibility that Norvill's professionalism influenced her decisions is particularly clear when his Honour contemplates, repeatedly, Norvill's failure to complain to Rush or anyone else about his alleged behaviour. For example, Norvill explains that she did not complain to anyone about the alleged back-touching because ‘the “run” was almost finished’ and she told herself ‘[p]retend it's not happening’ and ‘[y]ou’ve only got a couple more days’, and explains that she said nothing to Rush at the time because she did not want the audience to risk witnessing her reaction to Rush's alleged unwelcome touching and she appreciated the importance of the scene to the production.¹⁴¹ Although less than 20% of people who experience workplace sexual harassment report it to the perpetrator or anyone else, Justice Wigney did not find Norvill's explanations for not reporting it because of her own sense of professionalism ‘particularly persuasive’.¹⁴² Where Rush's claim to professionalism eliminates the possibility he could have sexually harassed Norvill in the context of the final scene because so doing would risk his relationship to Norvill on which the ‘emotional landscape’ of the play depended, Norvill's claim that she sent an email to Rush with her customary ‘hugs and kisses’ after this alleged incident because she was ‘just trying to keep it normal’ and ‘not to cause any upset that might impinge on the final performance of the play’ was rejected by Justice Wigney: ‘I am unable to reconcile the tone and tenor of this email with the events that Ms Norvill claims had occurred’.¹⁴³

As Harradine argues, when victim-survivors become defendants or defence witnesses in defamation trials,

their credibility largely comes into question if their actions prior to, at the time of, or after the alleged incident(s) are perceived as being inconsistent with the implicit masculine norms that the law frequently applies to women's testimony.¹⁴⁴

Here, Justice Wigney's application of those masculine norms is apparent throughout his reasoning, and specifically within his analysis of what is or is not ‘plausible’ in relation to workplace sexual harassment. His Honour's acceptance of the Rush-as-theatrical-genius narrative performance exposes the influence of witness demeanour and a range of sexual harassment myths within the ‘logic’ of his reasoning, as he elevates the credibility of the ‘consummate professional’ over the #MeToo advocate. Justice Wigney's deployment of rhetorical questions throughout his judgment reinforces the inherent masculinity of these norms, as his reliance on a shared understanding with his assumed reader effectively ‘others’ not only Norvill, but many victim-survivors of workplace sexual harassment whose lived realities and life experiences do not fit this narrative of civil justice.

5. #MeToo Testimony Meets Masculine Normativity

O, you are men of stones!

Had I your tongues and eyes, I’d use them so

That heaven's vault should crack. She's gone for ever.

I know when one is dead and when one lives;

She's dead as earth. Lend me a looking-glass;

If that her breath will mist or stain the stone,

Why then she lives.

So howls a distraught and apparently deranged King Lear as he carries the lifeless body of his youngest daughter, Cordelia, across the stage and then gently lays her on the ground. He then cradles her.

A plague upon you, murderers, traitors all!

I might have saved her; now she's gone for ever.

Cordelia, Cordelia, stay a little. Ha!

What is't though sayest? Her voice was ever soft,

Gentle and low, an excellent thing in woman.

I killed the slave that was a-hanging thee.¹⁴⁵

Justice Wigney chose to preface his judgment with this extract from the final scene of King Lear. There are a number of lenses through which one might interpret this inclusion. As a quotation from the scene in which Norvill's two most serious allegations of sexual harassment against Rush occurred – that he intentionally stroked her breast and her back – and which also formed the bedrock of his Honour's finding that those allegations were implausible on the basis of Rush's professionalism, Justice Wigney's selection of this extract might be interpreted as signifying a lack of judicial empathy for Norvill as an alleged victim-witness of workplace sexual harassment and the nature of her involvement in the proceedings. While noting that Norvill ‘did not wish to speak publicly about her experiences’,¹⁴⁶ Justice Wigney also described her as someone who ‘had no vested interest’ in the outcome of trial,¹⁴⁷ denying the possibility that the adversarial courtroom might provide a platform for the form of #MeToo testimony in which Norvill was clearly engaged, and the importance of that testimony to her.

In her courtroom testimony, Norvill stated that she wanted Cordelia ‘to be just as formidable and intelligent as Lear … to represent a sense of a modern woman’. Norvill also noted: ‘Sometimes it's difficult in a Shakespearean role when the women have to be the – provide the moral circumference for the male counterpart’.¹⁴⁸ In remaining silent about their experiences of workplace sexual harassment for fear of reprisal – in keeping men's secrets about inappropriate sexual behaviour towards them¹⁴⁹ – women have arguably provided a form of ‘moral circumference’ for their male counterparts that, until the #MeToo moment, maintained the status quo and concealed the nature, extent and seriousness of this form of gender-based violence. Indeed, Norvill recounts this very dynamic in her courtroom testimony: 'I chose to put Geoffrey's comfortability above my own. Yes. I – I just thought I – I could keep going, I have come this far, and I felt trapped by my own silence, I guess'.¹⁵⁰ In both her portrayal of Cordelia – ‘I wanted her to be her own person. I wanted her to be strong and fierce’¹⁵¹ – and in her performance of #MeToo testimony in the adversarial courtroom, Norvill eclipses the prescribed feminine role, refusing to remain silent or to limit her speech to the comfortable status quo, framed through the lens of what it is socially acceptable for men to hear about themselves. Norvill's testimony is multi-layered as she witnesses to the harm she alleges she experienced personally, the harm she alleges occurred to others, and the collective harm she alleges is inflicted on women in her industry. Justice Wigney's rejection of that evidence through his acceptance of the Rush-as-theatrical-genius narrative signifies the collapse of the legal into the theatrical, revealing the artifice of law's pretentions to values-neutral objectivity, impartiality and logic. This resonates most clearly in Justice Wigney's evaluation of Rush's professionalism and Norvill's evidence, which his Honour can reconcile only through the deployment of a range of myths surrounding workplace sexual harassment – particularly, that it is driven by sexual desire rather than gendered power structures. Rush v Nationwide News speaks to the ongoing reality that the adversarial courtroom is ‘willfully unknowing and hostile to complex accounts of harm’,¹⁵² and Justice Wigney's elevation of consistency and plausibility represents an insistence on the masculine normativity of legal process even at the infliction of epistemic violence on an alleged victim-survivor of workplace sexual harassment. Such an approach to Norvill's testimony effectively reinstates, in his judgment as in the theatre and the adversarial courtroom, gendered hierarchies of power, knowledge and testimony.

Despite Lear's value for a ‘soft’, ‘gentle and low’ voice in a woman, Norvill loudly insisted on the veracity of her evidence in her third testimonial act following the verdict, a public statement outside the courtroom:

I standby everything I said at trial. I told the truth. I know what happened. I was there.

As you all know I never wanted these issues to be dealt with by a court. This case has caused hurt for everyone. There are no winners only losers. And I would have been content to receive a simple apology and a promise to do better without any of this.

Norvill is clear about the projection of her testimonial choices throughout the trial into the #MeToo moment:

We are living through complicated and rapidly changing times. We need to make genuine cultural change in our professions and industries. We can do it, but only if we acknowledge and confront with honesty the problems and complexities of the power imbalances in our workplaces.¹⁵³

Rush v Nationwide News reveals, if nothing else, the urgency of that recognition not only within our workplaces, but also within adversarial justice.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Sarah Ailwood

Sarah Ailwood is Senior Lecturer in the School of Law, University of Wollongong. Her research investigates feminist legal theory and practice through a law, literature and humanities lens, spanning the present and the past. Her current projects investigate relationships between voice, listening and law reform in the context of the #MeToo moment, with a particular focus on sexual harassment.

Notes

1 Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (hereafter Rush v Nationwide News).

2 ibid [219].

3 Nationwide News Pty Limited v Rush (2020) 380 ALR 432 (hereafter Nationwide News v Rush).

4 ‘Defence to Statement of Claim’, File NSD2179/2017, 1 February 2018. In view of the public interest in the case, the Federal Court of Australia established a website for the publication of documents related to the trial: <https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/rush-v-nationwide>, accessed 8 March 2024.

5 On the effects of this practice on victim-survivors of sexual harassment, see Sarah Ailwood ‘Collateral Damage: Consent, Subjectivity and Australia's #MeToo Moment’ (2020) 46(2) Australian Feminist Law Journal 285.

6 Transcript of Proceedings, Federal Court of Australia, NSW Registry, Wigney J, No. NSD 2179 of 2017 Geoffrey Roy Rush and Nationwide News Pty Ltd & Anor, 9 August 2018, 5–6.

7 Kate McClymont, ‘“A High-Grade, Twisted Abuser”: Don Burke a Sexual Harasser and Bully, Claims Series of Women’ Sydney Morning Herald 26 November 2017, <https://www.smh.com.au/entertainment/tv-and-radio/a-highgrade-twisted-abuser-don-burke-a-sexual-harasser-and-bully-claims-series-of-women-20171126-gzt6d2.html> accessed 22 August 2023.

8 Michelle Harradine, ‘Defamation Law and Epistemic Harm in the #MeToo Era’ (2022) 48(2) Australian Feminist Law Journal 1, 2. Note the serious harm requirement was introduced in 2020, after Rush v Nationwide News. See also David Rolph Defamation Law (Thomson Reuters 2015) and David Rolph, Reputation, Celebrity and Defamation Law (Ashgate 2008).

9 ibid.

10 Defamation Act 2005 (NSW), s. 25, s.30; ‘Defence to Statement of Claim’, File NSD2179/2017, 1 February 2018.

11 New South Wales Department of Justice Statutory Review – Defamation Act 2005, June 2018, 24–25.

12 Second Further Amended Defence to Statement of Claim, File NSD2179/2017, 9 August 2018.

13 Rush v Nationwide News [344].

14 See Bianca Fileborn and Rachel Loney-Howes (eds), #MeToo and the Politics of Social Change (Palgrave Macmillan 2019); Rachel Loney-Howes, Kaitlynn Mendes, Diana Fernandez Romero, Biance Fileborn and Sonia Núñez Puente, ‘Digital footprints of #MeToo’ (2022) 22(6) Feminist Media Studies 1345–62; Jennifer Robinson and Keina Yoshida, How Many More Women? Exploring how the law silences women (Allen & Unwin 2022).

15 Sean Mulcahy, ‘Methodologies of law as performance’ (2022) 16(2) Law and Humanities 165, 174.

16 Harradine (n8). See also Karen O’Connell, ‘Geoffrey Rush's Victory in His Defamation Case Could Have a Chilling Effect on the #MeToo Movement’ The Conversation 11 April 2019 <https://theconversation.com/geoffrey-rushs-victory-in-his-defamation-case-could-have-a-chilling-effect-on-the-metoo-movement-115127> accessed 8 January 2024.

17 Kate Manne, Down Girl. The Logic of Misogyny (OUP 2018), ch 6.

18 Lane Sainty, ‘Geoffrey Rush's lawyer labels defence “hopeless” in defamation case’, Buzzfeed Australia 8 February 2018, <https://www.buzzfeed.com/lanesainty/daily-tele-defence-to-stay-under-wraps> accessed 8 January 2024.

19 Rush v Nationwide News [4].

20 ibid [321]; Lane Sainty ‘An Actor Sang a Line From “Truly Scumptious” On The Witness Stand In Geoffrey Rush's Defamation Trial’, Buzzfeed 25 October 2018 <https://www.buzzfeed.com/lanesainty/geoffrey-rush-director-neil-armfield-king-lear> accessed 8 January 2024; Michael McGowan, ‘Drama at Geoffrey Rush defamation trial as actor's friend bursts into song’, Guardian Australia 25 October 2018 <https://www.theguardian.com/film/2018/oct/25/director-neil-armfield-geoffrey-rush-creepy-king-lear> accessed 8 January 2024.

21 Marett Leiboff, Towards a Theatrical Jurisprudence (Routledge 2020) 6.

22 Jerome Bruner, Making Stories: Law, Literature, Life (Harvard University Press 2002) 85.

23 Julie Stone Peters, ‘Legal Performance Good and Bad’ (2008) 4(2) Law, Culture and the Humanities 179, 200.

24 Rush v Nationwide News [2].

25 ibid [244].

26 Lane Sainty, ‘“I thought, this is the beginning of a box set”: Geoffrey Rush testifies in a defamation trial’, Buzzfeed 22 October 2018, <https://www.buzzfeed.com/lanesainty/geoffrey-rush-defamation-trial-day-one> accessed 8 January 2024.

27 Rush v Nationwide News [253].

28 ibid [257].

29 Lane Sainty, ‘Geoffrey Rush says his “thinking of you” text to a female actor weas a joke’, Buzzfeed Australia 23 October 2018, <https://www.buzzfeed.com/lanesainty/geoffrey-rush-daily-telegraph-defamation-trial-day-two> accessed 8 January 2024.

30 Michaela Whitbourn, ‘Geoffrey Rush denies “intentionally groping” female co-star’, The Sydney Morning Herald 23 October 2018, <https://www.smh.com.au/national/geoffrey-rush-denies-intentionally-groping-female-co-star-20181024-p50bkf.html> accessed 8 January 2024; Michael Pelly ‘Geoffrey Rush: I may have touched her chest, but it wasn't intentional’ Australian Financial Review 24 October 2018, <https://www.afr.com/companies/professional-services/geoffrey-rush-i-may-have-touched-her-breast-but-it-wasnt-intentional-20181024-h171d8#:~:text = He%20said%20Ms%20Norvill%2C%20who,%22like%20an%20embarrassed%20teenager%22.&text = In%20other%20evidence%20on%20Wednesday,not%20%22intentionally%20grope%22%20her> accessed 8 January 2024.

31 Rush v Nationwide News [255].

32 ibid [261].

33 ibid [401].

34 ibid [312].

35 ibid [312].

36 ibid [578], [581], [612], [693].

37 Leigh Gilmore, Tainted Witness: Why We Doubt What Women Say About Their Lives (Columbia University Press 2017) 7.

38 Elissa Blake, ‘My experience was not #MeToo, it was #HerToo’: Eryn Jean Norvill on her life-changing return to the stage’ Guardian Australia 7 May 2022 <https://www.theguardian.com/stage/2022/may/07/my-experience-was-not-metoo-it-was-hertoo-eryn-jean-norvill-on-her-life-changing-return-to-the-stage> accessed 12 January 2024.

39 Gilmore (n 37) 3.

40 Kay Schaffer and Sidonie Smith, Human Rights and Narrated Lives: The Ethics of Recognition (Palgrave Macmillan 2004).

41 Gilmore (n 37) 3.

42 Gillian Whitlock, Soft Weapons: Autobiography in Transit (University of Chicago Press 2007) 205.

43 Transcript of Proceedings, Federal Court of Australia, NSW Registry, Wigney J, No. NSD 2179 of 2017 Geoffrey Roy Rush and Nationwide News Pty Ltd & Anor, 31 October 2018, 59.

44 Transcript of Proceedings (n 6) 6–7.

45 ibid 7.

46 Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851, 6 November 2018.

47 Transcript of Proceedings (n 6) 7.

48 Gilmore (n 37) 19–20.

49 ibid 2.

50 Leiboff (n 21) 25.

51 Transcript of Proceedings, Federal Court of Australia, NSW Registry, Wigney J, No. NSD 2179 of 2017 Geoffrey Roy Rush and Nationwide News Pty Ltd & Anor, 30 October 2018, 516.

52 ibid 522.

53 ibid 518–19.

54 ibid 550–51.

55 Whitlock (n 42) 205.

56 Transcript of Proceedings (n 51) 520.

57 ibid 549.

58 ibid 550.

59 ibid 555.

60 Transcript of Proceedings (n 43) 5.

61 ibid 6.

62 ibid 7.

63 ibid.

64 Gilmore (n 37).

65 ibid 19–20.

66 Lane Sainty, ‘Geoffrey Rush's lawyers want to argue that his accuser was upset over a breakup’ Bizzfeed Australia 12 September 2018 <https://www.buzzfeed.com/lanesainty/geoffrey-rush-defamation-lawyers-breakup-allegation> accessed 8 January 2024.

67 Transcript of Proceedings (n 51) 556.

68 Lane Sainty, ‘Geoffrey Rush's Costar Says A Female Actor Didn't Mention "Unwanted Attention" From Rush’ Buzzfeed Australia 29 October 2018 <https://www.buzzfeed.com/lanesainty/geoffrey-rush-actors-testify-defamation-trial> Accessed 8 January 2024.

69 Transcript of Proceedings (n 43) 8.

70 ibid 27.

71 ibid 45; Lane Sainty, ‘Geoffrey Rush Accuser Eryn Jean Norvill Brings Calm To A Courtroom Drama’ Buzzfeed Australia 3 November 2018 <https://www.buzzfeed.com/lanesainty/eryn-jean-norvill-testimony-geoffrey-rush-defamation> accessed 8 January 2024; Michael McGowan ‘Geoffrey Rush defamation trial: Eryn Jean Norvill accused of lying to harm actor’ Guardian Australia 31 October 2018 <https://www.theguardian.com/film/2018/oct/31/geoffrey-rush-trial-eryn-jean-norvill-accused-telling-disgusting-lies> accessed 8 January 2024.

72 Sean Mulcahy, ‘Silence and attunement in legal performance’ (2019) 34(2) Canadian Journal of Law and Society 191, 206.

73 ibid 201.

74 ibid.

75 Gilmore (n 37) 5–6.

76 ibid 3.

77 Sainty (n 68); Jenna Price, ‘What women feel when they read about EJ Norvill and Geoffrey Rush’ The Sydney Morning Herald 2 November 2018 <https://www.smh.com.au/national/what-women-feel-when-they-read-about-ej-norvill-and-geoffrey-rush-20181101-p50dcp.html?> Accessed 8 January 2024; Alison Croggan ‘The Rush trial: a backgrounder’ Witness Performance 8 November 2018 <https://witnessperformance.com/the-rush-trial-a-backgrounder/> accessed 8 January 2024.

78 See for example @alisoncroggan 30 October 2018 <https://twitter.com/alisoncroggon/status/1057105403979296769> accessed 11 January 2024; @msmichellelaw 13 April 2019 <https://twitter.com/ms_michellelaw/status/1116929516859846656> accessed 11 January 2024. See also Robinson and Yoshida (n 14) 166–68.

79 Rush v Nationwide News [329].

80 ibid [330].

81 ibid [330, 419, 463, 509].

82 ibid [419].

83 ibid [415].

84 ibid [308].

85 Rush v Nationwide News [308].

86 ibid [309–10].

87 Justice Tom Bingham, ‘The judge as juror: the judicial determination of factual issues’ The Business of Judging (OUP 2000) 7–13; Justice Peter Young, ‘Fact finding made easy’ (2006) 80 Australian Law Journal 454. See also W. H. Gravett, ‘Spotting the liar in the witness box – how valuable is demeanour evidence really’ (2018) 81(3) Tydskrif vir Hedendaagse Romeins-Hollandse Reg (Journal for Contemporary Roman-Dutch Law) 437.

88 Justice David Ipp, ‘Problems with fact-finding’ (2006) 80 Australian Law Journal 667, 670.

89 The Hon Mr Justice Mostyn, ‘The craft of judging and legal reasoning’ (2015) 12 The Judicial Review 359,

90 The Hon Justice Susan Kiefel AC, ‘On being a judge’ Public Lecture, 15 January 2023, The Chinese University of Hong Kong, <https://www.hcourt.gov.au/assets/publications/speeches/current-justices/kiefelj/kiefelj-2013-01-15.pdf> accessed 9 January 2024.

91 Justice Mostyn (n 89) 362; Justice James Barry, ‘The methodology of judging’ (1994) 1 James Cook Law Review 135.

92 Justice Ipp (n 88) 670.

93 Dorota Anna Gozdecka ‘Antigones of contemporary theatre: capturing problems of today's civil disobedience in a theatre play’ (2021) 25 Law Text Culture 204, 214.

94 Rush v Nationwide News [310].

95 See for example Rosemary Hunter, ‘Border protection in law's empire – feminist explorations of access to justice’ (2002) 11(2) Griffith Law Review 263–85; Rosemary Hunter, ‘Contesting the dominant paradigm: feminist critiques of liberal legalism’ in Vanessa E Munro and Margaret Davies (eds), The Ashgate Research Companion to Feminist Legal Theory (Ashgate 2013) 27–47; Margaret Thornton, ‘The Public/Private Dichotomy: Gendered and Discriminatory’ (1991) 18(4) Journal of Law and Society 448–463; Margaret Davies, ‘Law's Truths and the Truth About Law: Interdisciplinary Refractions’ in Vanessa E Munro and Margaret Davies (eds), The Ashgate Research Companion to Feminist Legal Theory (Ashgate 2013) 65–81; Linda Alcoff, Rape and Resistance (Polity Press 2018).

96 Kimberly A. Lonsway, Lilia M. Cortina and Vicki J. Magley ‘Sexual Harassment Mythology: Definition, Conceptualization, and Measurement’ (2000) 58 Sex Roles 599, 600.

97 ibid 68.

98 Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (2020).

99 ibid 141–42.

100 Nationwide News v Rush [209–216].

101 Rush v Nationwide News [327–28].

102 ibid [328].

103 ibid.

104 On epistemic harm within testimony see Kristie Dotson, ‘Tracking Epistemic Violence, Tracking Practices of Silencing’ (2011) 26(2) Hypatia 235.

105 Transcript of Proceedings (n 51) 547.

106 Transcript of Proceedings (n 43) 29.

107 ibid 31.

108 Transcript of Proceedings (n 51) 554.

109 Transcript of Proceedings (n 43) 33.

110 Australian Human Rights Commission, Everyone's Business: Fourth National Survey on Sexual Harassment in Australian Workplaces (2018).

111 Bruner (n 22) 85.

112 Transcript of Proceedings (n 43) 32.

113 Rush v Nationwide News [627].

114 ibid [336].

115 Harradine (n 8) 13.

116 Evidence Act 1995 (NSW), s.44(3) provides a procedure by which witnesses may be cross-examined on previous representations of other persons.

117 Evidence Act 1995 (NSW), s.69.

118 Transcript of Proceedings (n 43) 27.

119 ibid 24.

120 Rush v Nationwide News [363].

121 Nationwide News v Rush [150]–[176].

122 Harradine (n 8) 15.

123 AHRC (n 98) 7.

124 Rush v Nationwide News [521].

125 ibid [526].

126 AHRC (n 98) 124.

127 Rush v Nationwide News [527].

128 AHRC (n 110) 81.

129 Rush v Nationwide News [496]

130 ibid [465].

131 ibid [500].

132 Transcript of Proceedings (n 51) 529.

133 Rush v Nationwide News [543].

134 ibid [545].

135 ibid [598].

136 ibid [394].

137 ibid [579].

138 ibid [612].

139 ibid [579].

140 ibid [612].

141 ibid [579].

142 ibid [612].

143 ibid [613].

144 ibid [621].

145 ibid [590].

146 Harradine (n 8) 14.

147 Rush v Nationwide News [1].

148 ibid [327].

149 ibid.

150 Transcript of Proceedings (n 51) 543.

151 Transcript of Proceedings (n 51) 515.

152 See Jess Hill ‘The Reckoning: How #MeToo is changing Australia’ Quarterly Essay November 2021; Virginia Trioli Generation F. Why we still struggle with sex and power (Simone & Schuster, 2019).

153 Eryn Jean Norvill, 'Eryn Jean Norvill responds to Justice Wigney's verdict outside court on Thursday' ABC News 11 April 2019 <https://www.abc.net.au/news/2019-04-11/eryn-jean-norvill-responds-to-geoffrey-rush-verdict/10994612> accessed 8 March 2024.