Christian Porter’s lawyers have identified no good reason for the ABC’s defence in his defamation case to be removed from the court file, a judge has been told.
“This would be a de facto exceptional case if Your Honour were to remove the pleadings,” barrister for Nine and News Corp, Dauid Sibtane, said on Friday.
The media companies oppose an application by the former attorney general and the ABC for the public broadcaster’s unredacted defence documents to be removed from the Federal Court file, which would deny non-parties access to them.
As part of Mr Porter and the ABC’s defamation settlement announced in June, they were to ask the court for an order that sections of the defence be permanently removed from the court file.
The sections are currently under an interim suppression order after Mr Porter raised an objection and applied to have the defence struck out.
The MP had sued over a February 26 article about a now-deceased woman’s claim he had raped her decades earlier. He denies the allegation.
His barrister Bret Walker SC on Friday told Justice Jayne Jagot that removal from the file didn’t mean expunged from the records of the court.
The documents instead would be stored in some other part of the records, which in general terms would affect the ability of non-parties to gain access to them.
The judge noted that “the practical legal consequences of what you’re saying is that … it would not be a document in a proceeding amenable to inspection by a non-party”.
Mr Walker said the settlement had involved the parties coming to a compromise which included applying for the removal order.
“It is not, in our submission, for the media interests to become self-appointed bailiffs, to say inappropriate when parties compromise,” he said.
But Mr Sibtane referred to the principle of open justice, saying there must be a sufficient reason to warrant removal of documents,
This could involve a judge concluding material was scandalous, irrelevant or an abuse of process.
He argued it wasn’t appropriate to make the order because “it would be giving, in substance, special treatment to this proceeding”.
The parties had chosen to resolve the proceedings in advance, with a fundamental term of the settlement being that the removal application would be made, he said.
The term did not say that the order had to be made.
Mr Sibtane argued it had not been demonstrated that the refusal to remove the material would be inconsistent with or jeopardise the settlement.
Kangaroo Court of Australia’s Shane Dowling has also argued for the suppression order to be lifted and rebutted Mr Walker’s submission that he did not have the right to intervene in the case.
The judge reserved her decision.
The court has not signed off on the parties’ settlement and should it fall apart, the case could be revived and progress to trial.