Returning to the Federal Court for yet another application, lawyers for major media outlets have accused Christian Porter of pre-emptively seeking orders against them as a “classic example” of a party who proceeds with litigation in Australia’s “most open court” but refuses to accept that it comes with damages to their reputation.
Lawyers for the former attorney-general Christian Porter are eyeing off further orders against media interveners Nine and News Corporation to prevent them from using information in the ABC’s defamation defence for anything other than court proceedings. This, the media outlets argued, would put them at an unfair advantage if it ever was revealed.
Mr Porter is seeking a declaration from the media companies that they would not use the redacted information, raising the question from Justice Jayne Jagot as to why they would not instead seek a permanent suppression order that would cover all media. This, she said, was what “I have been trying to say [since the beginning].”
“It is very unsatisfactory because from the outset of the interlocutory orders, from the beginning, I have been raising that the whole idea of removing it from the court file is not really the answer to what the applicant really wants to achieve, which in my mind always was the equivalent to a permanent suppression order,” Justice Jagot said.
During the Wednesday, 18 August interlocutory hearing, Mr Porter’s barrister Barry Dean said that despite requests to do so over email, there was no acknowledgement from the media outlets that they would only use the information for court proceedings. He claimed that Mr Porter was “compelled” to give the media outlets the defence against his wishes and would be accused of contempt if he refused.
“When you look at the way these media interveners came in and got the document, it puts it in a different context that your Honour would be satisfied that an obligation [for the declaration] exists. It is in the interest of the administration of justice that there should be an order that prevents them from having some sort of advantage over every other media organisation or person from the public,” Mr Dean argued.
Appearing for Nine, in-house counsel Larina Alick said that if the declaration order is made, it would mean that at any time in the future should the information come to light – either legally or not – then “these will be the only companies that cannot report on the news”. In light of this, Ms Alick said it would be an “obvious injustice”.
Responding to the allegation that Mr Porter could be accused of contempt of court for not handing over the documents, Ms Alick said: “This is false. The applicant was never under any compulsion. The media interveners did ask the applicant for the defence, but it could have asked the ABC for it. The applicant and the ABC could have declined and the interveners could have applied to the registrar for it.”
Ms Alick made nine points for why the current application should not be granted, including that the document in question is a pleading, that Mr Porter’s original application to permanently suppress the documents was abandoned and it is only up to the ABC to protect the documents because it does not belong to Mr Porter.
On the point of the documents belonging to the ABC and not up for Mr Porter to seek orders against, Ms Alick said that had he pursued the original application to permanently suppress the documents, the decision for that matter would have indicated one way or the other what media outlets could do with the document.
“If there had been a hearing on suppressing the defence and if your Honour had dismissed that, the media would have been free to walk straight out of the courtroom and report on that document. That is what happens after every suppression hearing. In that situation, there is no implied undertaking, so why is there one here? Why is there an implied undertaking after the fact?” Ms Alick questioned.
She further accused Mr Porter of “protecting a document that is not his own” not because he owns it, “but because he does not like it”. She said to grant the application on this ground would be a “gross distortion” of the court’s obligations.
“Parties must accept the damage to their reputation which may be inherent to litigation,” Ms Alick said. “Mr Porter commenced these proceedings in the most open court in this country where pleadings are published on the court website. Mr Porter is a lawyer and has a considerable amount of experience behind him through the defamation lawyers advising him. This is a classic example of a party who must accept the damage to their reputation inherent to their litigation.”
Another point stressed by Ms Alick is that the South Australian Coroner and Coroner staff had received the unredacted defence for the purpose of their investigation into the death of the woman who accused Mr Porter of rape – he denies all allegations. Ms Alick said that under Mr Porter’s sought orders to prevent its use outside of court proceedings, it would mean that any use of the defence by the Coroner is prohibited.
The matter has been reserved and a written judgement will soon be available.
More to come.