The tone a Federal Court judge used during proceedings in the Geoffrey Rush defamation case will be used by Nationwide News as part of an argument as it appeals the decision.
The Oscar-winner was last month awarded almost $2.9 million after he won the case against the publisher of Sydney’s The Daily Telegraph newspaper.
Nationwide News is appealing the decision on several grounds, including that Justice Michael Wigney could have appeared biased.
In amended appeal documents referred to in the Federal Court, Nationwide News added references to some of Justice Wigney’s comments throughout the proceedings “and the tone” in which they were delivered.
Last month, the Telegraph attempted to have Justice Wigney excuse himself from making further decisions in the case because of the pending appeal and its references to apprehended bias.
The newspaper’s lawyers cited the cumulative effect of comments the judge made, including “derogatory terms” used in referencing the newspaper, to support the application.
Justice Wigney refused to stand down after ruling a fair-minded observer would not perceive bias.
Rush sued the paper for stories it ran accusing him of behaving inappropriately towards a colleague during the 2015-16 Sydney Theatre Company season of King Lear.
That colleague was later revealed in court proceedings as actor Eryn Jean Norvill.
The appeal is being heard by Justice Anthony Besanko, via video link from South Australia.
Justice Besanko gave the Telegraph‘s legal team until June 21 to file an application and supporting affidavit to access audio recordings of Justice Wigney.
Mr Rush’s barrister Sue Chrysanthou said she had no opposition to the audio being sought.
The matter will return to Federal Court for another case management hearing on July 15.
The Telegraph has flagged using a key ruling about damages and a cap on parts of defamation payouts in the case between Rebel Wilson and Bauer Media during its appeal.