A Sydney newspaper publisher is applying mid-trial to amend its defence in the high-profile defamation case involving Oscar-winner Geoffrey Rush after a potential new witness came forward.
During a hearing of the application on Friday, a visibly frustrated Justice Michael Wigney said the case would be adjourned until at least April 2019 if it was successful.
He said if the judge-only trial was put over to next year it would essentially involve a new set of witnesses and allegations and Rush would have to get back in the witness box.
Rush is suing Daily Telegraph 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 denies the claims and argues the newspaper portrayed him as a pervert and sexual predator.
Nationwide News is pleading a defence of truth during the Federal Court trial after Norvill - who didn't speak with the journalist for his articles - agreed in July to give evidence.
But the publisher is now applying to amend its defence after it received news of a potential new witness, whose identity is suppressed by court order.
The court on Friday heard lawyers for Nationwide News were contacted a week ago by Norvill's legal representative, who told them "Witness X" might be prepared to give evidence.
Defence barrister Tom Blackburn SC said their late application to amend the defence was far from ideal but it had taken the publisher by surprise and wasn't their fault.
He said the judge faced a "stark evidentiary choice" between the accounts of Rush and Norvill, and Witness X offered "vitally important evidence" to resolve the difficult factual dispute.
But Justice Wigney said he was concerned the months-long adjournment would cause Rush and his family "the most egregious prejudice".
Kieran 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" without speaking to Norvill.
Mr Smark submitted Witness X had put inappropriate pressure on Rush during proceedings which could amount to abuse of process or contempt.
He said there was no suggestion the Telegraph was involved.
"The grant of the application can be seen as giving effect to or being fruition of that improper pressure," Mr Smark said.
Justice Wigney has reserved his decision on the application and the trial will continue on Monday.
