The Daily Telegraph has been dealt a significant blow as it fights a defamation lawsuit brought by actor Geoffrey Rush, with a judge striking out much of the paper's defence.
The Oscar winner is suing the Sydney tabloid and its journalist Jonathon Moran over articles alleging he behaved inappropriately with a colleague during a Sydney Theatre Company production of King Lear in 2015.
In the Federal Court on Tuesday, lawyers for the 66-year-old were successful in their preliminary application to have all of the paper's truth defence removed
The Telegraph can no longer seek to prove it's substantially true that Rush engaged in scandalously inappropriate behaviour, after Justice Michael Wigney found the particulars provided to support the claims were "plainly deficient".
The newspaper's owner Nationwide News alleges Rush touched co-star Eryn Jean Norvill on stage in a way that made her feel uncomfortable on five separate occasions during the final week of the production.
Rush is also accused of following his co-star into the women's toilet and standing outside her cubicle until she told him to "f*** off" at a party to celebrate the end of the production.
Justice Wigney said the claims are "so vague and imprecise" that they're unable to be proven right.
"Why was the 'touching inappropriate' and 'so serious' that the Sydney Theatre Company 'would never work' with Mr Rush again?" Justice Wigney asked in his written judgement.
Rush's legal team also sought to remove part of the paper's qualified privilege defence – that it was reasonable to publish the articles in the public interest – because it included irrelevant facts and allegations.
This challenge was accepted with Justice Wigney throwing out three paragraphs of that defence, stating they were ambiguous, likely to cause prejudice and delay future proceedings.
The defence's application to subpoena the theatre company for a complaint allegedly made against Rush was set aside too.
"The publisher is not permitted to undertake what is referred to colloquially as a 'fishing expedition' in the hope of finding something in support of its plea," Justice Wigney said on Tuesday.
"It would appear they are unable to properly plead and particularise a defence of (truth) on the basis of the materials they presently possess."
Nationwide News was ordered to pay Rush's hearing court costs and will consider its position on whether to appeal the decisions or file an amended defence.
The defence denies the Telegraph articles made Rush out to be a pervert and a predator, having previously told the court they made no allegations of a sexual nature.
But Rush's barrister has previously said one front-page article carried the headline "King Leer" and asked what the alleged inappropriate behaviour was if not sexual in nature.
Justice Wigney said the Telegraph's headline writers "simply could not help themselves".
The matter will return to court next week with Rush's lawyers pushing for a eight-day trial date to be set as soon as possible.
Australian Associated Press