Christian Porter bid to suppress parts of the ABC’s defence to defamation action

Christian Porter has sought to suppress parts of the ABC’s defence to his defamation action on the grounds it is scandalous or vexatious and an abuse of process.

Minister for Industry, Science and Technology Christian Porter outside the Supreme Court in Sydney. Picture: Joel Carrett

Former attorney-general Christian Porter has sought to suppress parts of the ABC’s defence to his defamation action on the grounds it is scandalous or vexatious and an abuse of process.

The public broadcaster filed its defence online on Tuesday night but there has been a tussle between the parties over how much of it should be released publicly.

Mr Porter is arguing that one paragraph and three schedules of the ABC’s defence, likely to contain material that would further harm his reputation, should be struck out.

It is understood the Industry Minister had been arguing for the public release of the ABC’s defence, but with the offending material removed.

However, the ABC’s position was that its defence should be released in full or not at all, until the court decides whether parts of it should be struck out.

A hearing will take place before Federal Court judge Jayne Jagot on Friday morning.

Mr Porter launched defamation action against the ABC and journalist Louise Milligan over an online article published on February 26 that reported an unnamed cabinet minister was facing historical rape allegations.

The ABC has revealed in a court document that the article had 287,233 unique page views by April 25.

In several recent high-profile defamation cases, the Federal Court has struck out defences on the grounds that they contain scandalous or irrelevant material, or cannot be sustained, including the ABC’s truth defence to defamation action by Chinese businessman Chau Chak Wing and parts of Buzzfeed’s defence to former Labor MP Emma Husar’s defamation claim, which sought to show she was a “slut” but the judge finding it wasn’t anywhere near capable of doing so.

Mr Porter’s legal team — which includes high-profile Sydney silks Bret Walker SC and Sue Chrysanthou SC, and reputational risk lawyer Rebekah Giles — is arguing that parts of the ABC’s defence should be similarly struck out.

Louise Milligan. Picture: Stuart McEvoy

His lawyers have also asked the court to decide the issue of whether Mr Porter was identified by the ABC article and what defamatory meanings were conveyed by it, before it rules on other parts of the case. This would also likely benefit the ABC, which would not have to mount a defence to claims that are not conveyed by the article.

The 50-year-old has argued the article conveyed that he brutally and anally raped a 16-year-old, with his lawyers daring the ABC to try to prove the truth of the allegation.

The alleged victim, known as “Kate”, died in June last year — withdrawing her complaint to NSW Police the day before she took her own life.

The broadcaster is likely to argue that the article did not convey that he was guilty, avoiding the need to conduct a de facto rape trial into events that occurred in 1988. Instead, it could try to prove the truth of a lesser claim, for example, that he was merely suspected of rape.

However, this would be risky, if the court decides the article did convey him as a rapist.

The fact that the ABC’s defence contains material that Mr Porter is arguing is scandalous, frivolous, vexatious, evasive or ambiguous suggests that the ABC is relying on a truth or contextual truth defence and that it has potentially tried to make other damaging claims against him.

The broadcaster is also likely to argue the article did not harm Mr Porter’s reputation because it did not name him. However, he has claimed he was easily identified as the subject of the article by thousands of people and that his name was trending prominently on Twitter by the time he publicly outed himself while vigorously denying the allegations on March 3.

Mr Porter — who was dropped as attorney-general and shifted to the lower-profile Industry, Science and Technology portfolio due to his legal action — lodged his reply to the ABC’s defence at 11.06pm on Tuesday, just hours after the broadcaster’s documents were provided to the court.

It is expected to contain details of his claim that Milligan was motivated by malice.

However, his reply has also not yet been released by the court.

A spokeswoman for the broadcaster said: “The ABC supports having all materials in these proceedings, which are in the public interest, open to public scrutiny.”

Mr Porter’s lawyers have claimed that Milligan selectively quoted from portions of a dossier sent by Kate’s friends to Prime Minister Scott Morrison, Labor foreign affairs spokeswoman Penny Wong and Greens senator Sarah Hanson-Young, which made the allegations look as credible as possible while omitting parts of it that cast doubt.

The ABC’s team of prominent lawyers include former commonwealth solicitor-general Justin Gleeson SC, Victorian defamation barrister Renee Enbom QC and Sydney barrister Clarissa Amato.

Ms Chrysanthou will represent Mr Porter at Friday’s hearing while Ms Enbom will represent the ABC.

In a letter sent to the ABC’s Head of Disputes & Litigation Team, Grant McAvaney, on March 23, Ms Giles asked the public broadcaster to concede her client had been effectively identified in Milligan’s article to avoid “wasting” money arguing the point in court.

She noted that “Google searches of Mr Porter’s name increased significantly and much more so than any other senior male cabinet members” following the publication of the online article and said the ABC News’s political editor, Andrew Probyn, had also admitted “the minister’s identity was widely known in political and media circles” during a news report the day before Mr Porter self-identified.

“It is obvious that Mr Porter was reasonably identified as the subject of the article,” Ms Giles wrote in the letter, which has since been filed as part of the defamation proceedings.

“Many tens of thousands of dollars have already been and will be expended on the question of identification.

“We request, in accordance with your clients’ obligations … that you give an early indication as to your clients’ position on the issue of identification before extensive further time and costs are wasted … In particular the ABC is required to minimise costs by not requiring our client to prove any matter that it knows to be true. In our view the question of the identification of Mr Porter plainly falls into this category.”

In her letter to the ABC, Ms Giles raised a number of serious allegations regarding the conduct of the ABC and Milligan in reporting the historical rape claims, including “failing” to disclose the alleged victim had not signed a police statement and that her parents feared “she may have confected or embellished the allegations”.

She also questioned the decision by the ABC and Milligan to leave the disputed article online “where it has been continuously published after Mr Porter has been plainly identified” and accused them of “disingenuous conduct … in claiming that they acted properly in their failure to put the allegations to Mr Porter prior to publication”.