Emerging actor Eryn Jean Norvill wasn't under the thumb of Oscar winner Geoffrey Rush and not compelled to publicly praise her co-star or refrain from making complaints about him, an appeal court has been told.
While there was a balance of power between them, there was no evidence it was "so cowing" that she had to make statements "of a benevolent and praising kind" about him, Rush's barrister Bret Walker SC said on Tuesday.
Mr Walker was replying to submissions made about her credibility at the appeal by Nationwide News against Justice Michael Wigney's finding the publisher defamed Rush, and against the awarding of $2.9 million in damages.
The Daily Telegraph's publisher and journalist Jonathon Moran were found to have been reckless regarding the truth when they reported Rush had been accused of inappropriate behaviour during a Sydney theatre production of King Lear in 2015.
Norvill, who did not take part in the story, gave evidence at the defamation hearing saying Rush had sexually harassed her.
One of Nationwide's appeal grounds is that Justice Wigney erred in finding she was not a reliable witness.
The judge cited incidents including her speaking positively about Rush at a press conference on the King Lear production despite her claims about him.
"It cannot be doubted her statements are inconsistent with what must have been her views about Mr Rush," Mr Walker said.
She had been "gilding the lily to put it mildly", and this was scarcely a promising start for Justice Wigney to weigh up her credibility.
She was asking the judge to "believe me, I was lying" at the press conference, which did not enhance her credit
"It certainly is not an indicator of truth-telling for it to be understood that at the press occasion, she like others was prepared to engage in myth and fiction," Mr Walker said.
Nationwide 's barrister Tom Blackburn SC has argued Norvill, an emerging actor, had to "talk up" Rush the famous actor at the press conference, which was to publicise the production.
Mr Walker also said Justice Wigney was "well and truly justified" in concluding actor Geoffrey Rush was unable to work following the defamatory publications.
Rush himself testified as to the devastating effects the publications had on his mental state while other evidence supported conclusions he was unable to work and had fewer job offers.
Mr Blackburn has argued it was an "astonishing omission" that Rush himself did not give evidence expressly stating he was unable to work and had fewer job offers.
He said the actor "had delivered his lines" from the witness box over three days, a description Mr Blackburn described as "not just a piece of tabloid wit" but "a privileged slur" against Rush.
The actor was never cross-examined about pretending to be what he was not, while Justice Wigney had completely accepted his sincerity.
He labelled Nationwide's argument as "an over-egged pudding".
Mr Blackburn is seeking a retrial with a different judge or a re-assessment of the actor's damages.
Justices Richard White, Jacqueline Gleeson and Michael Wheelahan reserved their decision.
Australian Associated Press
