Christian Porter wins legal battle to prevent media organisations publishing ABC defence
Christian Porter has won his case to prevent the media from reporting on secret documents filed in his defamation case against the ABC.
Christian Porter has won a legal battle to prevent full details of the ABC’s defence against his defamation claim from being published.
A judge has ruled media organisations handed copies of a secret file must not report its contents “unless and until the documents otherwise lawfully become public”.
Months after the former Attorney-General settled his lawsuit against the ABC, the Federal Court on Tuesday granted Mr Porter’s application to seek orders for media who had obtained the documents to declare they would not be revealed.
Justice Jayne Jagot said the media organisations, Nine and News Corp, were only permitted to use the material in earlier proceedings when they challenged the making of a suppression order over it.
Justice Jagot also ordered the media companies to pay Mr Porter’s costs.
Mr Porter sued the national broadcaster over a story by star reporter Louise Milligan alleging an unnamed cabinet minister had been accused of sexually assaulting a 16-year-old girl in 1988.
The Western Australia MP outed himself as the subject of the article, published in February, and strenuously denied the claims made by a woman known only as Kate.
Mr Porter publicly declared he had never had sex with the young woman.
In her judgment, Justice Jagot rejected the media’s argument that declaring the material would not be published was designed to protect Mr Porter’s reputation.
She said although that may have been the purpose of the MP’s application, her decision would simply “quell the controversy” between the parties about a legal obligation.
Under court rules, parties involved in litigation proceedings are bound by something known as the Hearne v Street obligation, which limits the way they can use evidence.
In this case, it centres on whether a Hearne v Street obligation was implied when media lawyers were granted access.
If the declaration was not made Justice Jagot would have ordered a permanent suppression and non-publication order covering the material to “prevent prejudice to the proper administration of justice”.
“In short, a person obtaining documents in the circumstances in which the intervening parties obtained them in the present case should not be able to use the documents for any purpose other than the purpose for which they were provided access to the documents unless and until those documents are otherwise lawfully made public,” she wrote in her judgment.
The documents are in the hands of the South Australian Coroner to investigate the death of Mr Porter’s accuser.
Justice Jagot said that was “immaterial” to the proceedings.
She said if the material was made public the media may seek to be released from a Hearne v Street obligation, if they have concerns they are still bound by the obligation.
After the case was settled, Justice Jagot ruled the unredacted version of the ABC’s defence be scrubbed from the public court file saying doing so was “necessary to prevent prejudice to the proper administration of justice”.
It meant 27 pages of evidence the broadcaster was set to rely upon at trial could not be publicly accessed through the court, with the material to be kept in a different part of the court records.
The ABC did not press for its release.
The material was labelled as “scandalous” and “vexatious” by Mr Porter’s high-powered legal team. The ABC agreed for the document to be removed from the file as part of its settlement of the case.
However, lawyers for media organisations Nine and News Corp – publisher of NCA NewsWire – have had copies of the unredacted defence since May after they intervened to fight against proposed suppression orders.
Once an interim suppression order was lifted journalists would be able to publish the secret information but would be without the general protections from defamation accompanied with court reporting.
That spurred Mr Porter’s legal team to launch pre-emptive court action seeking a declaration the media would not publish the confidential parts of the ABC’s defence.
Media lawyers challenged the application and argued that what the Minister for Industry, Science and Technology was asking for was a “de facto suppression order” to protect his reputation.
No charges have ever been laid following the claims made by the woman, Kate, who took her own life in 2020.
The ABC was set to defend the defamation case at trial, claiming the imputations were not carried in its story, or otherwise there were “reasonable grounds for suspecting” Mr Porter of the alleged crime.
The lawsuit was settled out of court in May, with the broadcaster paying Mr Porter $100,000 in legal costs for a two-day mediation session.