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Porter successfully blocks media outlets from using secret court material
The former federal attorney-general has again won a legal bid in the Federal Court, this time to restrict two major media outlets from using secret parts of the ABC’s defamation defence for any reason other than the current court proceedings.
Naomi Neilson
Christian Porter and his lawyers have successfully convinced the Federal Court to make an order restricting Nine and News Corp from using three redacted sections in the ABC’s defence and his reply for anything other than the legal proceedings, which the media outlets were provided when they were arguing for its public release.
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In making the order, Justice Jayne Jagot said the companies could not use the secret parts of the document other than for the purpose of being heard “in the making of a further or final suppression order or non-publication order”. With the documents removed from the court file, other media and public are also restricted.
Earlier this month, Nine counsel Larina Alick said that if the declaration order was made, it would mean that at any time in the future should the redacted information come to light – either legally or not – then “these will be the only companies that cannot report on the news”. She added this would be an “obvious injustice”.
While it is not yet known if Mr Porter will seek a final suppression order, Justice Jagot questioned why he and his lawyers had chosen to seek the declaration against two specific media companies rather than ask the court for a wide-ranging non-publication order that would presumably cover all media outlets.
“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 do, which in my mind always was the equivalent of a permanent suppression order,” Justice Jagot said.
As part of her argument against the declaration, Ms Alick 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 and would provide an unfair advantage.
“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.”
In May, Mr Porter agreed to withdraw his defamation case against the ABC and filed an official notice of discontinuance this month. As part of the mediation settlement, the two parties agreed to ask the court to make an order that 27 pages of the ABC’s defamation defence to his claim be removed from the court’s public records.
While these new orders may put an end to the defamation matter, Mr Porter will return to the Federal Court as part of an appeal against the decision to restrict his former defamation barrister, Sue Chrysanthou, from acting for him. TNL leader Victor Kline has also flagged possible private action against Mr Porter.
