Porter defamation: Fate of ABC defence still hangs in the balance

Porter defamation: Fate of ABC defence still hangs in the balance

01 June 2021 By Naomi Neilson
Porter defamation

Due to significant concerns from a Federal Court judge, three temporarily redacted schedules in the ABC’s defamation defence and Christian Porter’s reply could be made available to the public despite the best efforts of the former attorney-general to have them completely removed from the court file.

As part of the mediation agreement between ChristianPorter and the ABC to discontinue the former’s defamation case, the two parties agreed to request an order from the Federal Court that the three redacted schedules be permanently deleted, but Justice Jayne Jagot said it would not be permitted because they simply asked for it.  

The three sections are currently under an interim suppression order following an objection made by Mr Porter’s legal team and a request for them to be struck out entirely. While orders to discontinue the proceedings were granted, Justice Jagot said she would need to be convinced that the court had no need for the schedules.

“You’ve filed orders in a court, it doesn’t then become a matter for you about what is to be disclosed or not disclosed,” Justice Jagot told the parties during the Tuesday, 1 June case management hearing. She added that while she wants to keep the costs as low as possible, “this is an unavoidable issue if you want to press [for it].”

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The ABC decided on a neutral position on the matter but media companies Nine and News Corporation have continued to push for the release of the documents. Kangaroo Court of Australia’s editor Shane Dowling has also requested permission to argue that they should be released under freedom of political communication, but whether he will be granted this option is yet to be decided by the court.

Once all parties can agree on a suitable date, the Federal Court will hear arguments as to whether Mr Dowling can submit his arguments and the outcome of the schedules. Given the court is yet to sign off on the discontinuation and if the settlement falls apart in the meantime, the case could progress to trial.

As part of the mediation agreement announced by the ABC in a statement on Monday, 31 May, Mr Porter has walked away from the proceedings without any damages but the article in question has been updated to include an author’s note clarifying that it did not intend to suggest Mr Porter had committed a criminal offence.

“The ABC did not contend that the serious accusations could be substantiated to the applicable legal standard – criminal or civil. However, both parties accept that some readers misinterpreted the article as an accusation of guilt against Mr Porter. That reading, which was not intended by the ABC, is regretted,” the author’s note read.

In response, Mr Porter held a press conference shortly afterwards in which he took aim at the national broadcaster for standing by its reporting despite being “forced” to admit that what they wrote could mislead the ordinary reader. He told media that ABC had backed down but will “no doubt try to spin what happens”.

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This press conference spurred another statement from the ABC to clarify that it does not regret writing the article and that it continues to stand by its reporting. It added that the article was not “sensationalist” and was instead an accurate report on a letter that had been sent to the Prime Minister and two other senior politicians.

“The ABC has never and still does not accept that the article suggested guilt on the part of Mr Porter. The ABC did not plead a truth defence to the ‘guilt’ meaning that Mr Porter alleged in his statement of claim,” the statement read.

Responding to his public claims that journalist Louise Milligan told her sources to delete texts off an encrypted messaging service – which was briefly referred to during Federal Court proceedings – the ABC said it “categorically rejects” this as “not only an insult to Ms Milligan but also to [Jo] Dyer’s intelligence and integrity”.

The ABC also jumped to the defence of Four Corners executive producer Sally Neighbour, who Mr Porter insinuated had lied in a tweet in which she wrote that “no money was paid”. This is correct, ABC wrote, and clarified that the only money paid was not to Mr Porter for damages but to cover the mediation costs. Ms Neighbour quickly reframed her tweet to confirm she meant “no damages were paid”.

The discontinuation of proceedings came days after Mr Porter’s leading defamation barrister Sue Chrysanthou was removed from his legal team over concerns that she learnt confidential information through a lawyer-client relationship with a woman connected to the alleged victim at the centre of the historic rape claims. Mr Porter has strenuously denied the accusations and said he would continue to do so.

Porter defamation: Fate of ABC defence still hangs in the balance
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