Public barred from accessing secret parts of ABC’s defence to Christian Porter’s defamation claim

The public will be permanently barred from accessing parts of the ABC’s defence to Christian Porter’s defamation claim.

Christian Porter. Picture: NCA NewsWire / Sharon Smith

The public will be permanently barred from accessing secret parts of the ABC’s written defence to former attorney-general Christian Porter’s settled defamation claim, after a judge ruled that the document should be placed in a sealed envelope in an effort to prevent “prejudice to the proper administration of justice”.

A temporary non-publication order was made by Justice Jayne Jagot in May, pending an application by Mr Porter to strike out parts of the ABC’s defence over concerns it contained scandalous, frivolous or vexatious material, as well as ­material that would otherwise be considered “an abuse of the process of the court”.

In May, Mr Porter dropped his legal pursuit of the ABC and reporter Louise Milligan, after the parties agreed to settle the case following mediation. As part of the settlement, the parties agreed to seek a court order that 27 pages of the broadcaster’s 37-page defence “be permanently removed from the court file”.

ABC journalist Louise Milligan. Picture: Brett Costello

But a number of media organisations — including News Corp and Nine Entertainment — had sought access to the redacted part of the ABC’s 37-page defence, arguing earlier this month that an order to remove the pages from the court file would be an “exceptional” move that undermined the principles of open justice.

In a judgment published on Friday, Justice Jagot agreed to uphold the agreement between the ABC and the former attorney-general on the grounds that it was “necessary to prevent prejudice to the proper administration of justice”. Justice Jagot said the schedules of the defence contained allegations that would “never be the subject of judicial determination”, given the parties had settled the defamation case.

“Mr Porter’s allegations that those schedules are a form of abuse of process will also never be the subject of judicial determination. In these circumstances, and given the full compromise of all aspects of the dispute reached between the parties, I am satisfied it is necessary to give effect to (the) proposed consent order.”

Mr Porter, now Industry Minister, launched defamation proceedings against the ABC in March over an online article published on February 26 that alleged an unnamed cabinet minister was facing historical rape allegations dating back to a high school debating competition in 1988.

The ABC defence in the Porter defamation case will remain out of public view.

Mr Porter, 50, outed himself as the unnamed cabinet minister five days later and launched the defamation action on March 15. In a statement of claim, he alleged that Milligan had suggested he “brutally raped” a 16-year-old girl in 1988 when he was 17. However, the case was settled in May. 

Following the settlement, Mr Porter’s legal team — which included high-profile Sydney silks Bret Walker SC and Sue Chrysanthou SC, — argued that parts of the ABC’s defence should be struck out, including one paragraph and three schedules that were likely to contain material that would further harm his reputation.

On Friday, Justice Jagot said her ruling had “nothing to do” with the fact that the parties could be considered as “powerful litigants”, noting that the ABC and Mr Porter had not obtained “special treatment”. “It is open to any party to apply for the same kind of relief as the parties sought in the present case if the circumstances arguably justify the making of such an order,” Justice Jagot said.

“Provided a contract is lawful and the parties are competent, freedom to contract is one of the foundational pillars of the common law.” The ABC and Mr Porter had resolved their dispute in a lawful way, Justice Jagot concluded.

She said a copy of the redacted defence would be “sealed”, removed from the court file and “stored” elsewhere in the court’s registry. It was “not to be opened or made available for inspection by the public other than by leave of the court”, Justice Jagot said.

On Wednesday, the court granted the South Australian Coroner’s Court access to the redacted defence as part of an investigation into the death of the woman Mr Porter was accused of raping in the 1980s.

The court instructed that the document be disclosed to South Australia’s state coroner, senior counsel assisting the coroner and anyone else involved in the investigation into the death of the woman, named Kate.

It said the document must be given “for the purpose of the ­investigation into the death of a person referred to in the un­redacted defence”.

Mr Porter and Kate met when they were teenagers – he was 17 and she was 16 – and they were both selected on the Australian Schools Debating Team. Mr Porter denies any wrongdoing.

In 2019, Kate prepared a statement for her lawyer as she planned to pursue the alleged incident where she claimed Mr Porter had raped her in her room while on a debating trip in 1988.

The woman planned to proceed with a police investigation but changed her mind before she took her own life in June last year.