Judge pauses Porter defamation hearing amid fight over barrister

A Federal Court judge has effectively paused hearings in Christian Porter’s defamation case against the ABC while the court decides an application to stop a high-profile Sydney barrister acting for him in the proceedings.

On Wednesday a friend of the woman who accused Mr Porter of rape filed an urgent application in the Federal Court seeking an order to restrain defamation barrister Sue Chrysanthou, SC, from acting for the federal Liberal minister on the basis of a potential conflict of interest.

Barrister Sue Chrysanthou, SC, right, and solicitor Rebekah Giles, far left, outside the Federal Court on Friday.Credit: David Gray

Jo Dyer, who was a debater with the woman in the late 1980s, is seeking an order restraining Ms Chrysanthou from acting in the case on the basis that the defamation silk previously acted for her in a separate matter involving The Australian newspaper.

“The order is necessary to prevent prejudice to the proper administration of justice, and to preserve confidentiality and legal professional privilege,” Ms Dyer’s lawyers say in court documents.

On Friday Justice Tom Thawley set down Ms Dyer’s application for a three-day hearing starting on May 24.

Justice Jayne Jagot, who is presiding over the defamation proceedings only, raised the possibility on Friday that the defamation proceedings would need to be stayed, or temporarily halted, pending the resolution of that application.

Bret Walker, SC, centre, arrives at the Federal Court on Friday.Credit: David Gray

Alternatively, she suggested Ms Chrysanthou could give an undertaking to have no involvement in the defamation proceedings, so that she was “effectively isolated” from it, unless and until the application to oust her was rejected. Justice Jagot described the latter as the “quarantining option”.

Sydney silk Bret Walker, SC, who is also acting for Mr Porter, told the court “it would be the most dreadful precedent” to stay the proceedings, or force Ms Chrysanthou to isolate herself from involvement in the matter, until the application was resolved.

He said Justice Jagot did not have any information about “the merit of that application” to stop Ms Chrysanthou from acting in the defamation case.

Justice Jagot said she would be acting “to protect the integrity of this proceeding” pending the resolution of the application.

Mr Walker said judges should not “dictate to parties” who could act for them, prompting a quick rejoinder from Justice Jagot.

“This has nothing to do with my view ... about counsel. That’s completely irrelevant,” Justice Jagot said.

The ABC was represented in court on Friday by former Commonwealth solicitor-general Justin Gleeson, SC, who is leading the broadcaster’s team of lawyers defending the defamation case.

Mr Gleeson said that if a lawyer had taken on a case that conflicted with an earlier matter, it might be open to a court to consider there had been an “infection of the material” presented to the court in the later matter.

But in a separate hearing on Friday relating to Ms Dyer’s application, Christopher Withers, SC, for Mr Porter, told Justice Thawley there was “no allegation that Ms Chrysanthou misused confidential information”.

Ultimately, Justice Jagot did not stay the proceedings or order that Ms Chrysanthou quarantine herself from the case, but ordered that Friday’s pre-trial hearing be adjourned to May 26.

Appearing for Ms Dyer in the Federal Court in Sydney on Wednesday, Michael Hodge, QC, said Ms Chrysanthou was “in a lawyer-client relationship with Ms Dyer and there is the real and obvious possibility that the information disclosed in the course of that relationship will have relevance to Mr Porter’s proceedings”.

But Noel Hutley, SC, for Ms Chrysanthou, said his client “will give evidence that she has in effect no substantive recollection of what is said to have been reported to her” by Ms Dyer. He said Ms Chrysanthou was “an officer of the court” and “will do anything that the court thinks she ought to do”.

The former attorney-general, now the Minister for Industry, Science and Technology, is suing the ABC and Milligan over a February 26 online article about a rape allegation against a Cabinet minister. Mr Porter was not named but he alleges he was identifiable.

Mr Porter claims the article defamed him in a number of ways, including by suggesting he “brutally raped a 16-year-old girl in 1988”, when he was 17, and this contributed to her taking her own life last year, after she told NSW Police that she did not wish to pursue her complaint. Mr Porter strenuously denies the claims.

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