A single meeting in November is at the centre of a dispute about whether Christian Porter can use his silk of choice in a defamation case against the ABC.
Christian Porter’s defamation case against the ABC would go “off the rails” if evidence from a Macquarie Group executive is received in a skirmish over Mr Porter’s choice of lawyer, his representative says.
The now-industry, science and technology minister is fighting to keep his chosen silk, defamation specialist Sue Chrysanthou SC, in the defamation proceedings.
A possible witness for the ABC, Jo Dyer, says she told Ms Chrysanthou confidential information in a November meeting.
She says Ms Chrysanthou has a conflict of interest and could use the information against her or to help Mr Porter in the case, which is likely to be heard later this year.
Ms Dyer’s lawyer Michael Hodge QC told the Federal Court on Monday it was a “straightforward case” of a conflict of interest.
But Mr Porter’s silk Christopher Withers SC said it was a “storm in a teacup” because Ms Chrysanthou didn’t have any relevant confidential information.
At the heart of the fight is a November 20 meeting between Ms Dyer, her friend and Macquarie Group senior managing director James Hooke, Ms Chrysanthou and other lawyers.
They met to discuss a possible defamation claim over an article by Janet Albrechtsen in The Australian which was critical of Ms Dyer’s appearance in a Four Corners program.
Ms Dyer and Mr Hooke were both friends of “Kate”, the woman whose rape allegations against Mr Porter are at the centre of the defamation proceedings. Kate took her own life in 2020.
The former attorney-general says the ABC defamed him by publishing the existence of the allegations.
Ms Dyer’s lawyers want to tender an affidavit of Mr Hooke that describes what he remembers being said in the meeting.
But Mr Withers said the evidence would “derail” the case by weeks and push back Mr Porter’s attempt to vindicate his reputation in the defamation case.
The defamation case is frozen until Justice Tom Thawley decides whether Ms Chrysanthou can represent Mr Porter.
Ms Dyer’s legal team has never told him what the confidential information conveyed in the meeting was, Mr Withers said. They’ve only produced evidence of the topics discussed.
That’s why, “in an act of desperation”, they produced Mr Hooke’s affidavit at the last minute, he said. He received it at 8.30am on Saturday.
He said it came too late and disadvantaged Mr Porter in the litigation.
Ms Chrysanthou had only a “short discussion” with Ms Dyer and gave her “very limited advice” about the article in The Australian, Mr Withers said.
But she was in email conversation with Ms Dyer and others about The Australian article as late as March 4.
The court heard on Monday that multiple lawyers indicated Ms Chrysanthou had a conflict of interest and should not act for Mr Porter, before the dispute spilled over into public view.
Her friend and colleague, defamation barrister Matthew Richardson, told her in person and then in an email that she should return the brief, Mr Hodge said.
Leading silk Nick Owens SC wrote an opinion concluding that Ms Chrysanthou had a conflict of interest as well, Mr Hodge said.
Ms Dyer raised her objection to Ms Chrysanthou representing Mr Porter on the same day he lodged his statement of claim to start the case in March.
Ms Chrysanthou is represented in the dispute but is not making submissions.
Ms Dyer and Mr Hooke will be cross-examined on Monday.