Christian Porter wants ABC’s ‘entire defence’ thrown out, court told

Christian Porter has asked the Federal Court to throw out the bulk of the ABC’s defence to his defamation claim, the broadcaster’s barrister said as the parties locked horns in court.

The ABC’s hotly anticipated defence to Mr Porter’s defamation claim was filed in the Federal Court on Tuesday night but has yet to be released publicly.

Former attorney-general Christian Porter is suing the ABC for defamation.Credit: Steven Siewert, Trevor Collens

On Thursday, Mr Porter’s lawyers filed an application seeking a temporary court order that three schedules to the defence “are to be treated as confidential” and not distributed to third parties.

Ultimately, Mr Porter is seeking a court order that the schedules to the defence and one paragraph be struck out, so they no longer form part of the defence, and the schedules be removed from the court file.

His lawyers are relying on a section of the Federal Court rules dealing with “scandalous” and “vexatious” material, or material that is “otherwise an abuse of the process of the court”.

A barrister acting for The Sydney Morning Herald, The Age, and News Corp appeared in court to oppose any temporary non-publication order.

The ABC’s barrister, Renee Enbom, QC, told the Federal Court on Friday that “this is an application to effectively strike out our entire defence” and the broadcaster’s lawyers would need at least a fortnight to prepare for the fight.

She said the schedules, which contain particulars said to support the ABC’s defences, including the public interest-style defence of qualified privilege, were “the substance of the defence”.

Justice Jayne Jagot, who is presiding over the case, agreed that it was “a big application” and was “extremely important”.

Sue Chrysanthou, SC, acting for Mr Porter, said “the particulars are not the substance of the defence” and Mr Porter’s position was “the public should have the defence” now, with the schedules redacted.

The ABC’s position was that the defence should be published in its entirety if Mr Porter’s reply, which has also been filed, was released publicly.

“The principles of open justice ... require that the proceedings be reported in a fair and accurate way, not in a one-sided way or a way that suits one party,” Ms Enbom said. She accused Mr Porter’s camp of seeking to “control” how the case was reported.

But Justice Jagot said a redacted version of the defence should be published now along with the reply.

While the full details of the ABC’s defence will not be known until the written defence is released, Ms Chrysanthou said the ABC and journalist Louise Milligan “are not pleading truth to most of his case”.

The court heard the ABC was seeking to rely on qualified privilege, a defence relating to publications of public interest where a publisher has acted reasonably.

Mr Porter, who was then attorney-general and is now the Minister for Industry, Science and Technology, is suing the ABC and Milligan for defamation over a February 26 online article headlined “Scott Morrison, senators and AFP told of historical rape allegation against Cabinet Minister”.

He was not named in the article but alleges he was widely identified as the subject, including on social media.

Ms Chrysanthou said the ABC argued in its defence that the article was not “of and concerning” him because he was not named. But she said the law recognised that a small class of people, such as cabinet ministers, could all be defamed if a claim was made against one unnamed member.

Mr Porter claims the article defamed him in a number of ways, including by suggesting he “brutally raped a 16-year-old girl in 1988”, when he was 17, and this contributed to her taking her own life last year, after she told NSW Police she did not wish to pursue her complaint. He strenuously denies the claims.

In a statement in March, NSW Police said there was “insufficient admissible evidence to proceed” with an investigation in the matter.

He says the article also suggested there were “reasonable grounds” for suspecting him of the crime, and for suspecting the alleged crime contributed to the woman taking her own life.

The court is the final arbiter of the meanings conveyed by an allegedly defamatory publication.

Ms Enbom said the ABC was mounting a “significant” truth defence to some of the meanings pleaded by Mr Porter, and would most likely call “at least 15 witnesses”.

However, Ms Chrysanthou said the broadcaster’s “limited” truth defence would “fall away” if the court found the most serious meanings pleaded by Mr Porter were conveyed by the article, meaning the truth defence did not cover any allegation of criminal guilt and was confined to allegations there were “reasonable grounds for suspecting” him of a crime.

Justice Jagot said an interim non-publication order should be made over the contested parts of the ABC’s defence until the strike-out application was heard, or until further order.

The “principles of open justice would require everything else to be disclosed”, Justice Jagot said.

The trial is likely to start in October and run for up to six weeks.

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