Christian Porter’s defamation trial of the century
By the time MinterEllison’s chief executive fell, Christian Porter was already in talks with a new team of lawyers.
By the time law firm MinterEllison decided its chief executive’s position was untenable after she was “triggered” by acting for Christian Porter, the Attorney-General was already in discussions with a new team of lawyers about suing the ABC and its reporter Louise Milligan for defamation.
Reputational risk lawyer Rebekah Giles and Sydney barrister Sue Chrysanthou SC had begun discussions with Mr Porter about a possible defamation lawsuit early last week.
With media coverage of historic rape allegations dating back to a 1988 high school debating trip showing little sign of abating, Mr Porter had contemplated supporting an inquiry into the matter — although he disagreed with it in principle.
But after talking to Ms Giles and taking soundings from colleagues, he decided that more aggressive action was needed.
It’s a fight the ABC is not shying away from, on Thursday engaging former commonwealth solicitor-general Justin Gleeson SC to lead its defence.
Ms Giles had just represented another alleged rape victim, former staffer Brittany Higgins, in legal action against Linda Reynolds after the Defence Minister referred to her as a “lying cow”.
She and Ms Chrysanthou had also represented Sarah Hanson-Young against former Liberal Democrat David Leyonhjelm after he told the Greens senator to “stop shagging men” in the midst of a parliamentary debate over women’s safety.
But that was no bar to them representing Mr Porter, who has become the focus of significant anger from women, some of whom had marched on parliament on the same day the Attorney-General launched his Federal Court legal action.
Bret Walker SC — regarded as one of the nation’s top court advocates and a brilliant legal strategist — was later added to Mr Porter’s team. He had successfully convinced the High Court to overturn the conviction of George Pell, whose alleged sexual misconduct was also pursued by Milligan.
When MinterEllison partner Peter Bartlett reviewed Mr Porter’s March 3 press statement — in which the Attorney-General disclosed he was the unnamed cabinet minister the allegations were about — defamation action was not being contemplation.
But Mr Bartlett had already made it clear he would not act against the media, who he often represents on other matters.
It was not until last Friday that a final decision was made to launch defamation action on Monday morning over the ABC’s publication of an online article on February 26, which revealed that an unnamed cabinet minister was facing rape allegations.
The blockbuster defamation trial has created complications for Mr Porter’s job as Attorney-General, the courts and the tightly knit media law world. The Federal Court quietly updated information on its website on Thursday about how it allocates judges to cases in which “the character of a matter (calls) for a different approach” to its usual system.
Federal Court cases are allocated based on a judge’s practice area, their availability and workload. But a case’s “importance or public interest”, and the “administration of justice and the reputation of the court”, can add another decision-making layer.
Justice Jayne Jagot was allocated to the case on Monday by Chief Justice James Allsop, in consultation with the court’s principal registrar, the national operations registrar, and its national consulting team of judges.
Justice Jagot was appointed by the Rudd government in 2008, and was passed over for promotion to the High Court by Mr Porter. She recently dismissed a high-profile defamation case brought by Ms Chrysanthou and Ms Giles on behalf of two doctors from Sydney’s notorious Chelmsford psychiatric hospital. Mr Walker, Ms Chrysanthou and Ms Giles are acting together on an appeal against Justice Jagot’s decision.
The ABC’s head of litigation, Grant McAvaney, unveiled the broadcaster’s legal team on Thursday.
Both Ms Giles and Mr McAvaney started their media law careers at MinterEllison. Mr Gleeson is a formidable advocate, and this will not be his first battle with an attorney-general. He quit as solicitor-general after a 2016 disagreement with Mr Porter’s predecessor, George Brandis.
Mr Gleeson has already waded into the public debate about whether Mr Porter is fit to continue in his role, recently calling on Scott Morrison to enlist the current Solicitor-General, Stephen Donaghue QC, to assess whether the allegations against Mr Porter justified an inquiry.
He also said the Prime Minister should have read the 31-page dossier sent to him anonymously by friends of the complainant.
Melbourne defamation barrister Renee Enbom QC, who acted for actor Rebel Wilson, and Sydney barrister Clarissa Amato, who has previously acted for Nine, will also act for the ABC.
It will be an expensive taxpayer-funded team against a member of the government, which controls its purse strings.
Mr Porter is not receiving taxpayer or Liberal Party funding for the case, which could cost him $1m if truth is argued as a defence and the case effectively becomes a rape trial. Barrister Richard Potter SC, who provided prepublication ¬advice on two Four Corners episodes related to Mr Porter — but not the February 26 article which is the subject of the case — has not been included in the team.
Matt Collins QC, one of the country’s most highly regarded defamation barristers, is believed to have been sounded out about representing both sides — but he declined. His role as head of the Australian Bar Association next year would have likely become untenable if he were pursuing the Attorney-General. He has also hosted a dinner at his home for Mr Porter, judges and barristers as head of the Victorian bar.
Mr Collins had recently acted for the ABC in high-profile defamation cases against Chau Chak Wing and Mick Gatto.
The timing was not good for the other top defamation silks who might have represented the ABC. Tom Blackburn SC is currently in London, while Sandy Dawson SC is unavailable.
The lawyer agitating for an inquiry, Marque Lawyers’ Michael Bradley, had acted for the complainant, Kate, since 2019.
A self-described “shameless self-promoter”, Mr Bradley was once the head of leading commercial firm Gadens in Sydney but walked out in 2008 to start his own firm. At Gadens, Mr Bradley had once famously offered staff a $400 shoe voucher as he believed “everyone should have an expensive pair of shoes”.
Mr Bradley, outspoken on Twitter against the Morrison government, has represented Australia of the Year Grace Tame and advised a campaign to overhaul sexual assault gag laws.
However, the defamation case has made an inquiry into the alleged rape much less likely.
Like Mr Porter, Ms Giles was once a successful debater. She survived horrific injuries in the 2004 Boxing Day tsunami in Thailand and is about as tough as they come. She will do battle for her clients — who have included Phoebe Burgess, former Ferrari boss and Aeroplane Jelly heir Herbert Appleroth and Olympics supremo John Coates — both in and out of the courts.
But for Mr Porter, the ABC and Louise Milligan, the stakes are much, much higher.
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