Federal Court set to hand down final ruling on Porter suppression orders

Federal Court set to hand down final ruling on Porter suppression orders

09 July 2021 By Naomi Neilson

Major media organisations have argued it would be “exceptional” if the Federal Court ruled in favour of Christian Porter’s argument that three redacted sections from the ABC’s defence and his reply should not be made publicly available and that, if the court did so, it would go against the overarching principles of open justice. 

Representing Nine and News Corporation, barrister Dauid Sibtain said there is no good reason to remove material from a court file that would “ordinarily be understood to be publicly available to members of the public” under overarching principles of open justice, particularly if the material is not argued to be scandalous or an abuse of power. 

As part of the mediation agreement reached by Christian Porter and the ABC, the parties agreed to request an order from the Federal Court that three temporarily redacted schedules from the ABC’s defence and Mr Porter’s reply be kept from the public record. While Justice Jayne Jagot did not allow it “simply because they asked for it”, she did permit arguments for removal of the material on Friday, 9 July. 

The three sections in question have been under an interim suppression order since early May after Mr Porter’s legal team took an objection. While the ABC has taken a neutral position as to the release of the material, Nine and News Corporation have stepped in as media interveners to push for their public release.

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“There is no conclusion made by the court, nor could it make, that the material, all of the material, contained in the defence is so irrelevant and so scandalous and such an abuse of power that it should be removed. Absent the conclusion to that effect, there has not been demonstrated a contradictory public interest that would otherwise trump the overarching principles of open justice,” Mr Sibtain submitted. 

Appearing for Mr Porter, Bret Walker SC submitted the court should permit his and the ABC’s request to remove the material given that they used their “degree of autonomy as parties” to decide what should happen in their dispute. Media interveners, he argued, should not have the right to interfere in this instance. 

“It is in our submission a proper exercise in judicial power for the court to recognise that parties have reached a now lawful compromise… [and] make orders as appropriate advanced by the parties pursuant to their agreement,” Mr Walker said. 

Mr Walker also submitted that Kangaroo Court of Australia editor Shane Dowling should not be permitted to argue for the release of the material. Along with disputing that Mr Dowling falls under the “description that fits a person in the news business”, Mr Walker slammed the editor’s submissions as entirely “irrelevant”.

During submissions that he should be defined as working in the media, Mr Dowling said that previous defamation action against him should classify him as such. Mr Walker disputed this as defamation action brought against a publisher of opinion and further quipped that Mr Dowling may be “sued again” as a publisher. 

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Part of Mr Dowling’s case – which was interrupted twice by Justice Jagot for attempting to use Mr Porter’s alleged victim’s name and for attempting to make assumptions about the material as it related to the alleged crime – was to argue that this case is “the most political matter to go before the court in this country”. 

“What you had was a federal Attorney-General on the public payroll suing a public broadcaster being funded by the federal government in the Federal Court which the Attorney-General oversaw. It might be argued that he has since moved to another position, but at any stage he could go back to being Attorney-General – that in itself shows this is a political matter,” Mr Dowling submitted to the court. 

This verbal submission was also criticised by Mr Walker, who told Justice Jagot that it was a “sufficient demonstration he is completely unfit to be a contradictor”.

Justice Jagot has reserved the decision on the release of the documents and Mr Dowling’s right to argue but will be handing it down shortly. 

This comes on the heels of a new legal threat hanging over Mr Porter, this time brought by New Liberals leader and barrister Victor Kline. The former prosecutor told Lawyers Weekly that he found “credible, believable” evidence in the newly publicly available dossier that detailed the rape allegations against Mr Porter. 

Mr Porter himself has filed new documents in the Federal Court under the Chrysanthou v Dyer matter in an attempt to have his former leading defamation barrister Sue Chrysanthou restored to his legal team. The Federal Court will hear part of this matter next Monday, 12 July. 

More to come.  

Federal Court set to hand down final ruling on Porter suppression orders
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