ABC defence documents in Christian Porter case to be sealed from the public

Parts of the ABC’s defence to Christian Porter’s defamation claim will remain sealed from the public, a court has ruled.

Highly sensitive documents filed in federal minister Christian Porter’s defamation case against the ABC will remain sealed from the public, the Federal Court has ruled.

Justice Jayne Jagot said on Friday the decision was necessary to protect the “proper administration of justice” and had ”nothing to do” with the powerful status of the former attorney general and the national broadcaster.

Her ruling knocked back a bid from media companies News Corp and Nine for an un-redacted version of the ABC‘s defence and Mr Porter’s reply to be released publicly.

Justice Jagot ordered the two documents be removed from the court file and placed in a sealed envelope marked “not to be opened” without permission from the court.

The ABC and Mr Porter agreed to settle the case in May. Picture: Danny Casey

Mr Porter sued the national broadcaster earlier this year over a story by journalist Louise Milligan alleging an unnamed senior minister was the subject of a historical rape allegation.

Following intense public speculation, Mr Porter publicly outed himself as the accused minister and strongly denied the allegation. No charges have ever been laid.

The now minister for industry and the ABC settled the case in May and jointly asked Justice Jagot to make a number of orders, including that the two un-redacted documents be removed from the court file.

But Justice Jagot said she would need to be persuaded the removal was necessary before making an order and media outlets had a right to be heard.

The judge wrote on Friday it would “undermine” the agreement reached between Mr Porter and the ABC for the court to insist the documents remain on file.

She would be “rewriting the contract of the parties” in circumstances where she did not know if they would have struck a deal at all were the documents to remain on file, she wrote.

“Provided a contract is lawful and the parties are competent, freedom to contract is one of the foundational pillars of the common law,” her judgment reads.

As well, Justice Jagot wrote, the court had a duty to resolve disputes “as quickly, inexpensively and efficiently as possible”, which the settlement achieved.

But, the judge wrote, the public interest in the case was legitimate and the principle of open justice also a “foundational” one.

She said it was the specific circumstances of the case that led her to conclude removing the documents from the court file was “necessary to prevent prejudice to the proper administration of justice”.

Among the things she listed were the fact Mr Porter had applied to strike out the relevant parts of the defence, that the removal of the documents was part of the terms on which the entire proceedings were settled, and that the settlement meant the issues would never go to trial or judgment.

The former attorney general sued over a story by journalist Louise Milligan. Picture: Brett Costello

“This conclusion has nothing to do with the fact that the parties may warrant the description of ‘powerful litigants’,” Justice Jagot wrote. ”The parties are not obtaining ‘special treatment’.”

Any person involved in legal proceedings could have asked for the same thing and had the application decided on its merits, the judge said.

She also ruled a suppression order on the unredacted material be revoked in 14 days time.

Earlier this week Justice Jagot ordered the suppressed defence could be supplied to the South Australian Coroner‘s Court, which is investigating the death of Mr Porter’s accuser.

The woman died by suicide in June 2020, the day after she emailed police to say she did not wish to go ahead with her complaint about Mr Porter.

The alleged incident reported by the ABC was said to have occurred in 1988, when Mr Porter was 17 and the woman 16.