Nine, News Corp resist Porter bid to ‘protect his reputation’

Nine and News Corp are resisting a legal bid by federal Liberal minister Christian Porter to stop them using or reporting on secret parts of the ABC’s defence to his defamation claim, which is in the possession of the media outlets’ lawyers but not in the public domain.

Mr Porter agreed in May to withdraw his high-stakes defamation case against the ABC, and filed an official notice of discontinuance this month.

Christian Porter during question time in June.Credit:Alex Ellinghausen

The ABC and Mr Porter agreed as part of a settlement to seek a court order that 27 pages of the ABC’s 37-page defence to his claim be removed from the court’s public records. The court made that order last month. The document is now held elsewhere in the court’s records and is not available to be inspected by the public.

But the entire unredacted defence was previously handed over by Mr Porter’s lawyers to lawyers for Nine – publisher of this masthead – and News Corp for the purposes of the media outlets arguing in court for public access to the document.

Mr Porter is now seeking a declaration from the court that Nine and News Corp, including their lawyers, are under a legal obligation not to use the secret parts of the defence “for any purpose other than” their previous involvement in the proceedings, unless the court grants them leave. He also wants the outlets to pay his costs.

“It is the obligation of those parties to use that document only for the purposes of the [prior] litigation,” Mr Porter’s barrister, Barry Dean, said at a hearing on Wednesday.

“The court has the power to make orders as appropriate, and that power is enlivened in this case because of the attitude of the [media companies].”

Justice Jayne Jagot had raised questions in her judgment on July 30 about whether an implied undertaking that parties and others will not use documents obtained for the purpose of legal proceedings for another purpose applied to Nine and News Corp in this case.

She referred to cases suggesting the undertaking does not apply to pleadings, which includes defences and statements of claim.

Nine’s executive counsel, Larina Alick, appeared in court on Wednesday and made submissions that were also adopted by News Corp.

She said the implied undertaking did not apply to pleadings and, in any case, “the party who has the right to keep its own documents to itself, in relation to the ABC’s defence, is the ABC”.

“It would be a gross distortion of the original purpose of the [undertaking] … to protect Christian Porter from the use of the ABC’s document,” Ms Alick said.

“The ABC does not seek to enforce the safeguard that is the implied obligation. To the contrary … most of the ABC’s journalists seem very keen for that defence to be reported.”

Mr Porter was seeking a safeguard over the ABC’s defence “not because he owns it, but because he does not like what’s in it”, Ms Alick said.

The ABC and journalist Louise Milligan both agreed as part of the settlement to seek an order that the secret parts of the defence should be removed from the court file.

Ms Alick said Mr Porter was “effectively asking this honourable court to protect his reputation” or grant a de facto suppression order. He had commenced the litigation “in the most open court in the country”, where parties must “accept the damage to their reputation inherent in litigation”.

Pending the resolution of this dispute, Justice Jagot has extended a temporary suppression order over the secret parts of the defence.

The practical effect of her earlier decision to remove most of the ABC’s defence from the public court file was that it cannot be inspected by members of the public.

The ABC and any other news outlet or person who obtained the defence elsewhere could choose to report on it, in the absence of any suppression or other order limiting its use. However, they would not have the protection of defamation defences relating to reporting on public documents in a court case.

Justice Jagot will deliver her decision at a later date.

Mr Porter had alleged an online article by Milligan defamed him in a number of ways, including by suggesting he “brutally raped a 16-year-old girl in 1988”, when he was 17, and this contributed to her taking her life last year, after she told NSW Police that she did not wish to pursue her complaint. He strenuously denies the claims.

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