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Porter barrister cannot act in ABC defamation case, court rules
A Sydney defamation barrister has been barred from acting for federal Liberal minister Christian Porter in his case against the ABC after previously advising a potential witness in the case.
Federal Court Justice Tom Thawley ordered on Thursday that prominent silk Sue Chrysanthou, SC, be restrained from acting for Mr Porter to prevent the potential misuse of confidential information and to protect the integrity of the administration of justice.
Sue Chrysanthou, SC, left, and solicitor Rebekah Giles leave the Federal Court in Sydney on Thursday.Credit: Louie Douvis
“A fair-minded member of the public would say that Ms Chrysanthou should not act for Mr Porter,” Justice Thawley said.
Jo Dyer, a friend of the woman who accused Mr Porter of rape, had sought the court order on the basis that Ms Chrysanthou had previously advised her in relation to an article in The Australian that was published after Ms Dyer appeared in an ABC Four Corners broadcast in November last year about Mr Porter and others.
Her lawyers said the order was necessary to prevent any misuse of confidential information and to prevent prejudice to the proper administration of justice.
An urgent four-day hearing started on Monday. Justice Thawley handed down his judgment on Thursday behind closed doors to prevent any confidential information being aired publicly, before delivering a summary in open court.
The court heard Ms Chrysanthou gave free advice to Ms Dyer, who is expected to be a witness for the ABC in the defamation proceedings, on November 20 last year and on January 27 and 28 this year as a favour to her friend, defamation barrister Matthew Richardson.
Justice Thawley said Ms Chrysanthou continued to represent Ms Dyer’s interests at least into February this year. She accepted the brief to act for Mr Porter on March 10.
The parties disagreed about whether confidential information was imparted at a November 20 meeting between Ms Chrysanthou and Ms Dyer, which was also attended by senior Macquarie banker James Hooke, a former boyfriend of the woman who accused Mr Porter of raping her in the late 1980s when they were both teenagers. Mr Porter strenuously denies the rape allegation. The woman took her own life last year.
Justice Thawley concluded Ms Chrysanthou was given confidential information, and there was a danger it could be misused.
James Hooke outside the Federal Court on Tuesday.Credit: James Brickwood
While Ms Chrysanthou gave evidence that she did not recall any such information, Justice Thawley said “recollections are liable to being revived” and there was a risk it could be used subconsciously. Some of the information was relevant to the defamation proceedings, he said.
Justice Thawley said Ms Chrysanthou should also be restrained from acting for Mr Porter to protect the “integrity of the judicial process and the due administration of justice, including the appearance of justice”. He said he would have formed this view even if there was no or minimal risk of misuse of confidential information.
Mr Porter’s barrister, Christopher Withers, SC, said in closing submissions on Thursday that “this started out as a one-hour conference done as a favour, for free”.
Michael Hodge, QC, acting for Ms Dyer, told the court that Mr Richardson, Ms Chrysanthou’s colleague, wrote to her in an email after the Porter brief was offered to her: “While I accept that it is your decision to make and you have obtained some advice that supports [your decision]... we’re in fundamental disagreement.
“I just keep thinking how I would feel if I was in the position of James and Jo, and the answer is not good.”
Jo Dyer, centre, outside court on Tuesday.Credit: James Brickwood
Ms Chrysanthou replied to Mr Richardson that she took the cab rank rule very seriously. The rule provides only limited circumstances in which a barrister can refuse a brief.
Ms Dyer said outside court that she was “very pleased and relieved” and spoke of the “unwavering support” she and Mr Hooke had for their friend, Kate, “both before and after the heartbreak of her death that happened 11 months ago this week”.
“For us, this case has been marked by a profound sadness and loss, and the absence of Kate. All of the effort, time and money that has been invested in this case stands in stark contrast to the way that Kate’s allegations have had no investigation into them whatsoever,” Ms Dyer said.
“We therefore humbly ask the Prime Minister, and the Prime Minister for Women, to look into their hearts and vote with their conscience when [Greens] Senator [Larissa] Waters’ bill seeking to establish an investigation confidentially and led by a retired judge comes before the House.”
Mr Porter’s solicitor, Rebekah Giles, said in a statement that “in representing Mr Porter, Ms Chrysanthou has been subject to great pressure but has provided her services fearlessly”.
“Mr Porter wishes to thank Ms Chrysanthou for her efforts. She is an outstanding and dedicated lawyer, a true leader in her field.”
In a written defence to the defamation proceedings, filed in court, the ABC denies defaming Mr Porter in an online story published on February 26. The broadcaster says it did not name him and did not assert that he was guilty of rape.
The ABC and Mr Porter are expected to attend mediation, which is common in Federal Court defamation cases, in an attempt to settle the dispute out of court.
In an order made with the agreement of the parties on Thursday, Federal Court Justice Jayne Jagot said secrecy orders covering parts of the ABC’s defence did not prevent “any mediator appointed by the parties” from being shown a complete version of the defence and Mr Porter’s reply.