The publisher of a Sydney newspaper has lost its mid-trial bid to have a new witness testify in the Geoffrey Rush defamation case.
Justice Michael Wigney in Sydney's Federal Court on Tuesday ruled against The Daily Telegraph's application to amend its defence based on the evidence of "Witness X", whose identity is suppressed.
He said the proposed amendment would have delayed the proceedings by at least five months and caused "manifest and palpable" prejudice to Rush.
Rush is suing the newspaper's publisher Nationwide News and journalist Jonathon Moran over articles about an allegation he behaved inappropriately toward a co-star, later revealed to be Eryn Jean Norvill, during a Sydney Theatre Company production of King Lear.
The 67-year-old Oscar winner has denied the claims against him and says the Telegraph portrayed him as a pervert and sexual predator.
Nationwide News is arguing a defence of truth in the judge-alone trial after Norvill - who didn't speak with Moran for his articles - agreed to give evidence.
But the publisher last week applied to amend its defence after receiving news of the potential new witness.
Defence barrister Tom Blackburn SC argued the judge faced a "stark evidentiary choice" between the accounts of Rush and Norvill, and the new witness offered important evidence to resolve the difficult factual dispute.
But Keiran Smark SC, acting for Rush, said the Telegraph was seeking to run what was in substance a new and different case after publishing "a shadow of a story".
Justice Wigney on Tuesday said the defence amendment would have introduced an entirely new set of allegations concerning Rush's conduct towards Witness X, whose identity is suppressed.
He said if it was allowed, the trial would be adjourned until at least April 2019 and Rush would have to return to the witness box.
The actor had emphasised his desire for an early hearing date from the outset but his attempts had been frustrated by Nationwide News and Moran, who have previously amended their defence, Justice Wigney said.
Following Tuesday's ruling on the defence application, there will be no further witnesses in the judge-alone trial and the parties will this week deliver their closing submissions.
