Media outlets seek to use ABC defence to Christian Porter allegations

Media outlets say they should be able to use or publish copies of secret parts of the ABC’s defence to Christian Porter’s defamation action.

Christian Porter during Question Time in the House of Representatives at Parliament House. Picture: Getty

Media outlets have argued they should not be stopped from using or publishing copies of secret parts of the ABC’s defence to Christian Porter’s defamation action, which were obtained when they intervened in the case.

Federal Court judge Jayne Jagot has previously agreed to remove the secrets parts of the ABC’s defence from the court file, effectively preventing the document from being accessed by the public.

Mr Porter, formerly Attorney-General and now Industry Minister, agreed in May to withdraw his defamation action against the ABC over its publication of historical rape allegations against him.

As part of their settlement, Mr Porter and the ABC agreed to seek a court order that 27 pages of the ABC’s defence would be removed from the court file.

Mr Porter had claimed those parts of the defence were scandalous or vexatious but the court had not yet heard arguments about whether they should be struck out before the case was settled.

Lawyers for Nine and Nationwide News, on behalf of The Daily Telegraph, have refused to agree to destroy or return copies of the secret parts of the defence, which were provided to them when they intervened in the case.

The media companies intervened for the purpose of arguing the defence should be made available to the public.

Barrister Barry Dean, acting for Mr Porter, said the media organisations were under an implied obligation not to use the secrets parts of the defence for any purpose other than their intervention in the case.

However, Nine executive counsel Larina Alick, representing Nine and Nationwide News, told the Federal Court on Wednesday that preventing the media organisations from using the documents would be a “gross distortion” of the implied obligation.

“Christian Porter is bringing this application regarding a document that is not his own … seeking a safeguard against the ABC’s defence not because he owns it but because he does not like what is in it,” she said.

“To grant Mr Porter’s application would be a gross distortion of the original purpose and intention of the implied obligation.”

She said Mr Porter was effectively asking the court to protect his reputation, but damage to reputation was not a basis on which to suppress information in a case. Instead, she said parties needed to accept the damage to reputation that was inherent in litigation.

Mr Porter is also seeking the media organisations pay his costs.

Justice Jagot reserved her decision.

Mr Porter had sued the ABC for defamation over an online article that said a Cabinet Minister was facing allegations he had raped a 16-year-old girl when he was 17 in 1988.

The ABC did not apologise for the article, which remains online, but it added a note that said the broadcaster did not intend to suggest that Mr Porter was guilty of the offences.