Almost three months ago, at the beginning of the defamation case brought by then attorney-general Christian Porter against the ABC, legal commentator Chris Merritt boldly predicted the outcome.
“The big issue is not whether the national broadcaster will lose; that’s almost a given,” he wrote in The Australian on March 19. “It’s how badly it loses…”
Anyone in the law or media could tell you what a bad loss looks like in such a case: a grovelling apology to the offended party, the removal of the defamatory material and the payment of substantial damages, including aggravated damages if the court determines publication was motivated by malice, which, Merritt opined, was on the cards in the Porter case.
Yet when Porter discontinued his defamation action this week, following mediation with the ABC, none of these things happened. There was no grovelling by the national broadcaster. No damages were paid. And the story that was the subject of the claim, written by reporter Louise Milligan and posted on February 26, remains online.
It now carries a one-paragraph editor’s note at its end – a result of the agreement struck between the parties in mediation – but the addition is more by way of clarification than apology. Indeed, it may rub salt into Porter’s wounds.
Milligan’s article boiled down to three key points: that letters detailing a historical rape allegation against a serving cabinet minister had been sent to the prime minister and several other politicians; that the alleged offence happened in 1988, before the man entered politics; and that the matter had been referred to police.
It didn’t identify Porter. He did that himself in a press conference, although the editor’s note now appended to the story will ensure future readers are in no doubt about the minister’s identity.
“Although he was not named, the article was about the Attorney-General Christian Porter,” it reads.
“The ABC did not intend to suggest that Mr Porter had committed the criminal offences alleged. 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.”
What was billed by some as the defamation “trial of the century” in the end produced only an anodyne paragraph, which reinforced that the ABC did not suggest Porter was guilty, and it was unfortunate that some people read it that way.
Porter’s sudden abandonment of his defamation action was baffling. It was as if a player in a high-stakes poker game, who had kept upping the ante, suddenly threw in his cards.
The matter may well have ended when Scott Morrison took it upon himself to declare Porter innocent of the rape allegation and denied calls for an independent investigation into whether Australia’s chief law officer was a fit and proper person to serve in federal cabinet. The woman, publicly known only as Kate, died by suicide last year, and the New South Wales police had closed the case.
But then Porter engaged some of Australia’s most prominent and expensive lawyers to pursue the ABC for reporting on the anonymous letters. Through his lawyers, he declared his willingness to give evidence under oath to assert his innocence.
“And he pleaded the worst possible imputations you could derive. He basically said the ABC had called him a brutal anal rapist. It doesn’t get much worse,” says Michael Bradley, managing partner at Marque lawyers.
Bradley represented Jo Dyer, a friend of Kate, who brought her own action objecting to Porter’s counsel, Sue Chrysanthou, SC, acting for the former attorney-general.
Dyer’s claim was that Chrysanthou had received confidential information relevant to the Porter case when Dyer consulted her on a separate but related matter.
This necessitated a separate four-day hearing. On Thursday last week, the judge in that case, Justice Thomas Thawley, ruled that Chrysanthou would have to relinquish the brief due to a “danger of the misuse” of the information she received from Dyer.
That same day, Porter and the ABC agreed to enter mediation.
Could it have been the loss of his high-priced silk that forced Porter to discontinue his defamation case?
“Who knows,” Bradley says. “But he made himself a party to the Chrysanthou case, so he’s now exposed to potentially very significant costs, which would no doubt hurt. Plus, he lost the barrister who did all the work.”
Furthermore, Bradley says, the ABC had “already flagged that they may move for a stay … a strike out of the statement of claim because the whole thing was infected”.
Whether the loss of Chrysanthou was a decisive factor in Porter’s decision to discontinue his action is a matter of speculation, but it’s fair to say almost all observers saw it as disastrous for his case.
When he addressed the media on Monday this week, Porter portrayed the withdrawal of his defamation claim as a personal victory and a “humiliating backdown” by the ABC. He claimed the national broadcaster had been “forced” to go to mediation because of flaws revealed in its defence during the Chrysanthou case.
“My view is that there being incontrovertible evidence in a court that someone was coached by Louise Milligan to destroy important communications, my view is that’s what got the ABC, forced them, to ask us into mediation …” Porter said.
That claim related to Dyer telling the court she had deleted Signal messages sent between her and Milligan.
The ABC responded with a statement saying the parties had begun discussions “before the commencement of the Dyer v Chrysanthou proceedings”.
“It is simply incorrect to suggest that evidence in that case led the ABC to seek mediation,” the broadcaster’s official statement said. “The ABC categorically rejects the claim that Louise Milligan ‘coached’ Jo Dyer. The suggestion is not only an insult to Ms Milligan but also to Ms Dyer’s intelligence and integrity.”
Dyer tells The Saturday Paper that she and Milligan did agree to delete some messages, which were exchanged mid-last year, “well before Porter brought his case, so there was nothing illegal, improper, sinister”.
She now is threatening to sue Porter for defamation over both the “coaching” claim and an earlier media statement released by Porter’s solicitors on May 12.
In the statement, Porter was quoted questioning the timing of Dyer’s application to have Chrysanthou removed from the case, some eight weeks after he engaged the lawyer.
The implication, Dyer says, was that the move was intended to disrupt the case and that she was acting in concert with the ABC to that end. A long series of communications with Porter’s lawyers show that she and Bradley had been pushing for Chrysanthou to remove herself for weeks before they applied for the court to remove her.
Whether Dyer proceeds to sue is uncertain.
“I’ve just come out of one very stressful legal stoush. I’m not in a hurry to go back into another, but nor am I prepared to let the record stand uncorrected,” she says. “I’m not going to put up with him spinning things in a way which reflects badly on me or my friends, and certainly not my dear, dead friend Kate, which is really what this is all about.”
There is no doubt Dyer has displayed steely nerve so far.
“I would have been desperately out of pocket had we lost,” she says of the Chrysanthou challenge. “There were moments throughout the last week when I looked at the array of lawyers who were sitting in that court and my heart did turn to ice, to think that, well, it could be me picking up the bill.”
But she took the risk, and won.
The threat of a defamation action from Dyer is not the only problem facing Porter.
Another potential crisis relates to the agreement struck between his lawyers and the ABC in mediation, relating to 27 pages of particulars submitted by the ABC in its defence.
Justice Jayne Jagot imposed a temporary non-publication order on the material during the trial. Under the deal struck in mediation, the parties agreed the material should be “permanently removed from the court file”.
But, as Jagot reminded them, it was not the parties’ place to decide what material “is to be disclosed or not disclosed”. They would have to persuade her to order it.
Australia’s two biggest media companies, Nine and News Corp, are seeking to intervene to have the redacted material made public. The ABC has told the court it is not interested in fighting the issue. Which leaves the burden, and the cost, solely on Porter.
Lawyers tell The Saturday Paper it is not unusual for courts to order disclosure.
Dyer wonders why Porter and his high-priced legal team did not foresee this possibility.
There is a chance Porter saw no other option than to take the risk. But if Jagot agrees to allow the publications of that material, it could be devastating for him.
Porter has problems in the political sphere, too, with a renewed push for an independent inquiry into his fitness to serve as a minister.
The Greens’ senate leader, Larissa Waters, announced this week that she would introduce a bill for a commission of inquiry to be presided over by a former judge appointed by the solicitor-general.
She said this is necessary because Porter’s abandonment of his defamation case “leaves serious allegations against him unexamined”.
“The Australian people cannot have confidence in this government while a man with a rape allegation hanging over his head remains a cabinet minister,” Waters said.
Labor is expected to support the move but there is effectively zero chance of Morrison agreeing, meaning the bill will die in the house. There remains the possibility, however, that it could be referred to a senate inquiry of some kind. In any case, it promises embarrassment for Porter and the government.
More seriously, the senate communications committee is moving to call ABC managing director David Anderson to appear before an additional estimates hearing, possibly as early as Monday. This should provide information at least into the costs incurred by the national broadcaster in defending itself, and possibly new detail on the agreement reached between the two sides in mediation.
And so, after three months of legal wrangling and untold legal fees, what has Porter achieved?
One paragraph at the end of an online story and the loss of his role as attorney-general. Depending on what Justice Jagot decides, whether Jo Dyer sues, and what the political process unearths, he may have succeeded in making things worse for himself.
It would be an act of Merritt-like folly to attempt to predict what happens from here. The only certainty is that it isn’t over yet.
Correction: An earlier version of this article incorrectly referred to Signal messages as emails. The text has been updated for clarity.
This article was first published in the print edition of The Saturday Paper on June 5, 2021 as "Porter in a storm".
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