The judge in the Geoffrey Rush defamation case has ruled against a last minute bid from The Daily Telegraph to introduce a new witness to the trial.
Justice Michael Wigney ruled against the application on Tuesday morning, saying it would have caused "egregious prejudice" to Rush and effectively delayed the conclusion of the trial by six months.
Rush is suing the publishers of Sydney newspaper The Daily Telegraph and journalist Jonathon Moran, after they published allegations in November 2017 that Rush had been accused of behaving inappropriately towards a female cast member during the 2015-16 Sydney Theatre Company (STC) run of King Lear.
Rush, 67, has strenuously denied the allegations. He claims publisher Nationwide News defamed him in two articles and a poster by painting him as a pervert, a sexual predator who committed sexual assault while acting in King Lear, and by suggesting his conduct was so serious that the STC pledged to never work with him again.
Nationwide News has argued a defence of truth based on the testimony of Eryn Jean Norvill, who played the role of King Lear's daughter Cordelia in the production, and alleges Rush sexually harassed her during the run of the play. She did not participate in the Telegraph's stories and was not named in them.
Handing down his judgement on Tuesday morning, Wigney said the proposed defence would have brought up new claims about incidents that allegedly occurred "many years before 2016" and do not involve Norvill, the King Lear production, or the Sydney Theatre Company.
There is a suppression order on the name of Witness X and the details of her proposed evidence.
Nationwide News argued the evidence from Witness X was capable of supporting the truth of some of the defamatory imputations pleaded by Rush that are not specific to the production of King Lear, including the suggestions that he engaged in scandalously inappropriate behaviour in the theatre, that he engaged in inappropriate behaviour of a sexual nature in the theatre, and that he is a pervert.
Wigney said the new evidence could not have won the case for Nationwide News, as it only pertains to some of the imputations pleaded by Rush, but that it had the capacity to mitigate damages awarded to Rush if it was found to be true.
Wigney said the prejudice caused to Rush by the application would be "not merely unfortunate or regrettable" but rather "manifest and palpable".
If the application had been allowed, he said, he would have had to adjourn the case until April due to Witness X's and his own availability, which he said would have caused "considerable stress and anxiety" to Rush and his wife Jane Menelaus.
Rush, who spent two and a half days in the witness box, would also have to be recalled to give evidence, Wigney said.
He said weighing up the application was "by no means an easy exercise", but he ultimately determined the delay, the fact the trial would be effectively divided into two parts, and the "egregious prejudice" this would cause to Rush outweighed the importance of the evidence.
The Telegraph launched the shock mid-trial bid to amend its defence and introduce the new witness on Tuesday last week, but it was not argued until Friday afternoon, at which point all but two witnesses in the case had already given evidence.
Wigney said the Telegraph had attempted to contact Witness X from as early as December 2017, making more attempts throughout 2018, but she had either not responded or told them she didn't want to talk.
He went on to say that it appears Witness X decided to offer to testify after seeing media coverage of the trial, and engaged solicitor Leon Zwier, who is also acting for Norvill.
Zwier contacted Nationwide News lawyers on October 26 to tell them Witness X was prepared to testify, the court heard.
Wigney noted this chronology but said the applications had "unquestionably been made at an extremely late stage of the trial".
Wigney also said that Rush had been clear throughout the trial that he wanted a fast resolution to vindicate his reputation, and that Nationwide News had "frustrated and impeded" him at "every opportunity".
All witnesses in the case have now given evidence. Closing submissions are expected to begin on Wednesday morning, and the trial is expected to conclude this week.