Christian Porter moves to strike out major sections of ABC’s defamation defence
Christian Porter has moved to strike out major sections of the ABC’s defence of his defamation claim, and prevent them from becoming public, accusing the public broadcaster of abusing the court process.
The ABC filed its defence on Tuesday, prompting an interlocutory application from Porter for an order to make confidential and strike out sections of the document on the basis they contain material that is either scandalous, frivolous, vexatious, evasive or ambiguous or “are otherwise an abuse of the process of the court”.
The former attorney general is suing the public broadcaster and investigative journalist, Louise Milligan, over an article alleging an unnamed cabinet minister had been accused of rape in January 1988 in a dossier sent to Scott Morrison and three other parliamentarians.
After a storm of media attention, in early March Porter identified himself as the minister and strenuously denied the allegation.
Sue Chrysanthou SC will appear for Porter in a federal court hearing before Justice Jayne Jagot to determine if the sections should be struck out and kept confidential.. A case management hearing has been brought forward to Friday morning and a further hearing is scheduled for 14 May.
An ABC spokesperson said “the ABC supports having all materials in these proceedings, which are in the public interest, open to public scrutiny”.
By the time the ABC published its story in February, the NSW police had ceased to investigate the complaint because the alleged victim withdrew from investigation and took her own life in June 2020.
In his statement of claim, Porter argued that the article contained a number of defamatory imputations including that he “brutally” and anally raped a 16-year-old girl in 1988 when he was 17 – and that he is “reasonably suspected” by New South Wales police of having done so – and that the alleged rape “contributed to her taking her own life”.
Porter has sought aggravated damages from the ABC, accusing it of omitting material that might cast doubt on the complainant’s claim and inappropriately lobbying for an independent inquiry.
Guardian Australia understands that the ABC defence filed to the court denies that it identified Porter, and denies the article contained the defamatory meanings alleged by him.
In the interlocutory application, signed by Porter’s lawyer Rebekah Giles, the former attorney general and now industry and science minister asked the court to strike out three schedules and a paragraph from the ABC defence.
In the meantime, Porter asked that the schedules be treated as confidential and that they not be distributed or available for inspection to any third party outside the proceedings.
Porter asked that aspects of the case relating to the defamatory meanings allegedly conveyed in the ABC article “be determined separately to and in advance of any other question of liability”.
He asked that the ABC give particulars of their denials contained in the still unpublished defence and pay his costs.
Defamation law expert, University of Sydney professor David Rolph, told Guardian Australia “these sort of applications in defamation cases are not common but this is not your average defamation case given the seriousness of the imputations and the stakes on both sides”.
Asked why Porter would seek to have the issue of defamatory meanings decided first, Rolph said there is “a benefit to having an early determination of defamatory meaning where it is a trial before a judge alone”.
“If what is published is not defamatory that brings proceedings to an end, so you don’t have to deal with other difficult questions including identification.”
This could be dealt with as a “discrete question” without admitting any evidence, he said.
On Thursday the federal court also published Porter’s statement on the extent of publication of the original article, claiming there were 287,233 unique page views of the article in Australia from 26 February to 25 April.