Industry Minister Christian Porter has revived an element of his defamation proceedings, by seeking a declaration that three media outlets never publish the ABC’s unredacted defence without judicial permission.
But Nine, its subsidiary Fairfax and News Corp say such relief isn’t possible as the former federal attorney-general does not own the 37-page document.
“Christian Porter is … seeking a safeguard over this defence, not because he owns it but because he doesn’t like what is in it,” Nine solicitor Larina Alick told the Federal Court on Wednesday.
Ms Alick opposed Mr Porter’s application for eight other reasons including that it was filed three days after the matter was officially discontinued on August 9.
The West Australian MP launched defamation proceedings against the ABC in March over an article about a now-deceased woman’s claim he had raped her decades earlier. He denies the allegation.
Twenty-seven pages of the ABC’s defence and parts of Mr Porter’s reply to that material were redacted after Mr Porter submitted the defence contained “scandalous” and “vexatious” material, or matters that were “otherwise an abuse of the process”.
In July, he successfully persuaded the court – under objection from Nine, Fairfax and News Corp – to remove the unredacted material from the court file.
His latest application targets the unredacted defence and reply provided to the three media outlets before the July ruling.
Interveners who obtain documents not otherwise publicly accessible through a court process were subject to an implied obligation to only use those documents for the court proceedings, a barrister for Mr Porter said on Wednesday.
That was unless it otherwise becomes published or the obligation no longer applies, Barry Dean told the court.
If some unredacted pages became public in future, the media outlets would remain obliged to report only on what was in the public domain, he said.
Mr Dean agreed with Justice Jayne Jagot that “a partial disclosure doesn’t result in a free-for-all, the obligation would still attach to the document”.
If the court didn’t make the declaration, there could be a “chilling effect” on people filing confidential material in proceedings and media outlets were permitted to intervene, he said.
However, Ms Alick said Mr Porter’s application on material owned by the ABC was a “gross distortion” of the implied obligation, which she said related to the rights of a party to keep its own material secret.
She described the declaration as a “de facto suppression order” and contended the high-profile MP was trying to protect his reputation.
“Damage to reputation is not a reason to suppress,” she said.
“Mr Porter commenced these proceedings in the most open court in the country … This is a classic example of a party who must accept the damage to their reputation inherent in litigation.”
Ms Alick also questioned whether the court had the power to make the declaration sought and how it would impact material provided to the South Australian coroner investigating Mr Porter’s accuser’s suicide.
Justice Jagot reserved her judgment.
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