Secret parts of the ABC’s defence in Christian Porter’s defamation case cannot be published by two other media outlets, following a court ruling in favour of the former federal attorney-general.
The Western Australian MP has heavily contested the full release of the ABC’s defence to his defamation claim since the broadcaster filed the 37-page document in May.
An interim suppression order was applied to 27 pages and parts of Mr Porter’s reply to that defence after the minister argued it was evasive, ambiguous and/or scandalous.
Mr Porter also succeeded in having the unredacted file removed from the court file and stored elsewhere, despite Nine and News Corporation arguing otherwise.
The primary case – concerning a historical rape allegation the MP denies – was settled out of court in May.
In August, Mr Porter’s attention turned to unredacted copies in the hands of Nine and News Corp, supplied to the outlets’ legal officers to allow them to prepare their earlier arguments.
The media outlets had argued an obligation requiring them to never use the file for other purposes did not apply.
They portrayed the declaration sought by Mr Porter as a “de facto suppression order” and argued he was seeking a safeguard over ABC’s document because “he doesn’t like what is in it”.
“Damage to reputation is not a reason to suppress,” Nine solicitor Larina Alick told the Federal Court on August 18.
But allowing the media to use the information would have a “chilling effect” on people filing confidential material in future proceedings, Mr Porter’s lawyer said.
On Tuesday, Justice Jayne Jagot sided with Mr Porter, declaring the files couldn’t be used by the media outlets except to engage in an application for suppression or non-publication orders concerning the redacted material.
The media outlets could also use the documents if the court granted them leave.
It didn’t matter that the documents in question weren’t Mr Porter’s or that they were pleadings, the judge said.
Mr Porter’s lawyers hadn’t voluntarily provided the documents to the media outlets but had been “under sufficient compulsion to do so”.
That activated the Hearne v Street obligation, of which a breach may be a contempt of court, Justice Jagot said.
“The fact that Mr Porter might be able to access other remedies (contempt of court or defamation) should the intervening parties act in breach of the obligation is immaterial,” she said.
“If the obligation exists, and it does, Mr Porter is entitled to the protection given by the obligation.”
The media outlets were ordered to pay the MP’s legal costs for the interlocutory application.
The ABC did not take part in the interlocutory hearing.