Christian Porter asks Federal Court to throw out ABC’s defence of his defamation claim
Former Attorney-General Christian Porter has asked the Federal Court to throw out the ABC’s “scandalous” defence to his defamation claim.
Former Attorney-General Christian Porter has asked the Federal Court throw out the ABC’s “scandalous” defence to his defamation claim relating to the alleged sexual assault of a teenage girl in 1988.
The court today agreed with Mr Porter’s request to suppress 25 pages of the 37-page defence document pending the outcome of the politician’s strike-out application. This sparked accusations from the ABC that his legal move was an offence to open justice.
Mr Porter’s lawyers argued they had no issue with the redacted version of the ABC’s legal defence being made public.
Sue Chrysanthou SC, representing Mr Porter, said the national broadcaster does not rely on a “truth” defence for the rape claims for the majority of the defence. It was later revealed the ABC would rely on the defences of qualified privilege and substantial truth.
After hearing the arguments today, the Federal Court agreed to issue an interim suppression order that will temporarily prohibit the publication of elements of the ABC’s legal defence until further arguments are heard on May 14 to strike out some elements.
“This is not about allowing the parties to hold hearings in secret,’’ Justice Jayne Jagot said.
“I am of the view that I should make, in appropriate terms, a suppression and non publication order. That order should run until the determination of the interlocutory application.
“That’s the first proposition. The second proposition is that consider that the principles of open justice would require everything else to be disclosed. That would mean the defence, with schedules 1, 2 and 3 and in my view, the whole of the reply.”
Earlier, the ABC’s counsel, Renee Enbom QC, argued “this is an application to effectively strike out our entire defence”.
She warned if the defence was suppressed on an interim basis, then Mr Porter’s legal reply which alleges the reporter Louise Milligan acted with malice in her reporting should also be suppressed.
“The reply is 13 pages of allegations about the conduct of Ms Milligan and the ABC,’’ Ms Enbom said.
RELATED: ‘Scandalous’ details Porter wants secret
“So, the effect of Mr Porter’s position is this: the public would not be informed of the way the ABC and Milligan put their defence to the claim … but the public would be given 13 pages of allegations about the conduct of Louise Milligan and ABC, which he says defeats one of the defences relied upon.
“Your honour, in my submission, that’s an attempt to control how this proceeding is reported and what information is made available to the public. The principles of open justice, which are fundamental principles in this court, require that the proceedings be reported in a fair and accurate way, not in a one sided way or way that suits one party.”
However, Justice Jagot told the ABC she was “not persuaded” by the argument.
A redacted version of the ABC’s defence is now expected to be loaded onto the Federal Court’s website in coming days.
The ABC’s long awaited defence to Mr Porter’s defamation claims has remained secret as a result of the legal tussle until now.
A barrister Dauid Sibtain, acting for News Corp, The Sydney Morning Herald and The Age, also appeared in court to oppose any temporary non-publication order of the ABC’s legal defence.
Defamation barrister Sue Chrysanthou SC, acting for Mr Porter, told the court that “most of the defence” that the ABC has lodged over its reporting of the alleged rape do not argue the “truth” of the claim.
The legal strategy was revealed by lawyers acting for Mr Porter in a hearing today into his application to strike out elements of the ABC’s legal defence on the grounds it includes scandalous or vexatious material that represents an abuse of the court.
However, the ABC’s lawyer told the court that it would argue qualified privilege – a fair and accurate report of a matter of public interest – and depending on the rulings of the court on the imputations conveyed more than a dozen witnesses may be called to give evidence.
Mr Porter’s accuser died by suicide last year shortly after telling police she did not want to proceed with the complaint.
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Mr Porter’s lawyer, Sue Chrysanthou SC, asked for the application to be dealt with urgently, noting that Mr Porter “had to step aside as attorney general” as a result of the ABC’s original report and the fallout that followed.
On Thursday, the ABC indicated in a media statement that it would oppose the application on the grounds it was in the public interest that all the materials in the defence are disclosed.
“The ABC supports having all materials in these proceedings, which are in the public interest, open to public scrutiny,” the spokesperson said.
Mr Porter is also seeking an order for the ABC to pay his legal costs for the interlocutory orders.
The defamation action concerns an ABC online article published before Mr Porter outed himself as the cabinet minister at the centre of the alleged anal rape of a 16-year-old girl in 1988. the article did not name Mr Porter. The politican claims he was nevertheless identified in the article.
If the interlocutory order is granted, elements of the ABC’s defence will be struck out.
The original statement of claim lodged by lawyers acting for Mr Porter argued the article was defamatory of Mr Porter and contained a number of defamatory imputations challenging.
“If the ABC and Ms Milligan wish to argue the truth of the allegations, they can do so in these proceedings,’’ lawyer Rebekah Giles said in a press release issued at the time the claim was lodged.
The statement of claim lodged by Mr Porter alleges the publication conveyed a range of defamatory imputations including that:
• Porter brutally anally raped a 16 year old in 1988
• Porter’s brutal and anal rape of a 16 year old girl contributed to her taking her own life
• Porter is reasonably suspected by police of brutally and anally raping a 16 year old girl in 1988, warranting criminal charges against him
The legal action also relates to a November 2020 online article that Mr Porter’s lawyers argue suggested that the MP is “a sexist and misogynist” and has a “reputation for making unwanted sexual advances” and had been accused of an “inappropriate sexual relationship with a female ministerial staff member”.
At the end of today’s hearings, Mr Porter’s lawyers asked the Federal Court to reserve three weeks for hearings in October to hear the matter later this year. The ABC said the trial would take closer to six weeks.
“It is of significant importance to our client that the matter be heard this year,’’ Ms Chrysanthou SC said.
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