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Final submission brings trial against Porter’s barrister to an end
In the closing submissions, lawyers for former attorney-general Christian Porter and his leading defamation barrister Sue Chrysanthou have argued that not only would his defamation proceedings have “raised potentially complex questions”, but that to deprive him of his chosen legal counsel would have disadvantaged his case.
Naomi Neilson
At the end of May, the Federal Court ruled that barrister Sue Chrysanthou should not be permitted to continue representing Christian Porter in his defamation trial against the Australian Broadcasting Corporation (ABC) that itself came to an end a few days later. Final submissions filed in the court on Thursday, 10 June revealed that Mr Porter’s legal team was concerned her absence would hurt his chances.
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In starting the submission, the legal team behind Ms Chrysanthou argued that she maintained the position that the leading barrister did not misuse any confidential information during the course of her retainer with Jo Dyer, the friend of the woman who accused Mr Porter of rape. Mr Porter has denied those allegations.
The team, led by Christopher Withers SC, also argued that Ms Dyer was wrong to tell the court that the case was highly important due to the parties being “profile public figures”. In response, the submission set out that attention surrounding the defamation material “is what has made this case high profile”.
“The higher the profile of this case, the more damage to Mr Porter’s reputation. The greater the damages to his reputation, the greater the need for him to have his choice of barrister practising in this specialised field,” the submission read.
Mr Withers told the Federal Court that even if there were “reasonably informed” bystanders by reason of the publicity that has been surrounding the defamation trial, that should “not affect the court’s assessment one way or another”.
“The fair-minded reasonably informed member of the public would not conclude that Ms Chrysanthou should be restrained from acting for him in the Porter proceedings for the following reasons. Mr Porter’s prima facie right to be represented by his counsel of choice in the proceedings should not be understated,” he wrote.
The submission went on to note that the seriousness of the allegations made in Mr Porter’s defamation proceedings is “unquestionable”, and on its face, they “raise potentially complex questions of defamation law and are factually dense of the pleadings”, particularly the defence – which has remained redacted.
“Mr Porter is in those circumstances entitled to an experienced counsel who is a specialist defamation barrister,” the submission read.
“A fair minded reasonably informed member of the public would also expect those absent exceptional circumstances the court would not deprive Mr Porter of a counsel who has worked significantly on the case since she was briefed since being instructed, particularly when it is being expedited by the court.”
Justice Thomas Thawley ruled that Ms Chrysanthou could not maintain her position on Mr Porter’s legal team due to a “danger of misuse” of confidential information.
“Ms Chrysanthou gave evidence she did not remember the confidential information… [but] there is nonetheless the risk of subconscious use of confidential information. A fair-minded member of the public would say she should not act for Mr Porter,” the submission read.
